exv10w1






Exhibit 10.1




     Execution Version



 

 








SEVENTH AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT




Dated November 15, 2009




Among




RESOLUTE ANETH, LLC,

as Borrower,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




WELLS FARGO BANK, NATIONAL ASSOCIATION

and BMO CAPITAL MARKETS FINANCING, INC.,

as Co-Syndication Agents,




DEUTSCHE BANK SECURITIES INC. and FORTIS CAPITAL CORP.,

as Co-Documentation Agents,




and




The Lenders Party Hereto




 

 








 









 












     THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Seventh
Amendment”), dated as of November 15, 2009, is by and among Resolute Aneth, LLC, a Delaware
limited liability company (the “Borrower”), Resolute Energy Corporation, a Delaware
corporation, and certain of its subsidiaries (collectively, the “Guarantors”), Wachovia
Bank, National Association, as Administrative Agent (the “Administrative Agent”), Wells
Fargo Bank, National Association and BMO Capital Markets Financing, Inc., as Co-Syndication Agents
(the “Co-Syndication Agents”), Deutsche Bank Securities Inc. and Fortis Capital Corp., as
Co-Documentation Agents (the “Co-Documentation Agents”) and the other Lenders party hereto
(the “Lenders”).



Recitals




     WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the other lenders party
thereto entered into that certain Amended and Restated Credit Agreement, dated April 14, 2006, as
amended by that certain First Amendment to Amended and Restated Credit Agreement, dated June 27,
2007, that certain Second Amendment to Amended and Restated Credit Agreement, dated September 12,
2007, that certain Third Amendment to Amended and Restated Credit Agreement dated September 30,
2008, that certain Fourth Amendment to Amended and Restated Credit Agreement dated May 12, 2009,
that certain Fifth Amendment to Amended and Restated Credit Agreement dated July 28, 2009, and that
certain Sixth Amendment to Amended and Restated Credit Agreement dated September 17, 2009 (as the
same may be amended, modified, supplemented or restated from time to time, the “Credit
Agreement”);



     WHEREAS, the Borrower has requested that the Administrative Agent and the Majority Lenders
amend the Credit Agreement to adjust the definition of “EBITDA” to add back transaction costs
associated with the Hicks Merger; and



     WHEREAS, subject to the satisfaction of the conditions set forth herein, the Administrative
Agent and the Majority Lenders are willing to amend the Credit Agreement and to take such other
actions as provided herein.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
in the Credit Agreement, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:



ARTICLE I

Definitions



Each capitalized term used in this Seventh Amendment and not defined herein shall have the meaning
assigned to such term in the Credit Agreement.




ARTICLE II

Amendments




 









 








     Section 2.01 Amendments to Section 1.02 of the Credit Agreement.



          (a) Section 1.02 of the Credit Agreement is hereby amended by adding the following new
definitions in their proper alphabetical order:





     ““Seventh Amendment” means that certain Seventh Amendment to Amended
and Restated Credit Agreement, dated as of November 15, 2009, among the Borrower,
the Administrative Agent and the other Lenders party thereto.”




     ““Seventh Amendment Effective Date” means November 15, 2009.”



          (b) The definition of “Agreement” in Section 1.02 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu thereof:





     ““Agreement” means this Credit Agreement, as amended by the First
Amendment, further amended by the Second Amendment, further amended by the Third
Amendment, further amended by the Fourth Amendment, further amended by the Fifth
Amendment, further amended by the Sixth Amendment, and further Amended by the
Seventh Amendment, as the same may from time to time be amended, modified,
supplemented or restated.”



          (c) The definition of “EBITDA” in Section 1.02 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu thereof:





     ““EBITDA” means, for any period, the sum of (a) Consolidated Net Income
for such period, plus (b) the following expenses or charges to the extent deducted
from Consolidated Net Income in such period: (i) interest, (ii) income and franchise
taxes, (iii) depreciation, depletion, amortization, and other non-cash charges, and
(iv) costs and expenses incurred in connection with the Hicks Merger not to exceed
$32,500,000, minus (c) all non-cash income added to Consolidated Net Income.”



ARTICLE III

Conditions Precedent




     This Seventh Amendment shall be subject to the satisfaction of the following conditions
precedent or concurrent on or before November 16, 2009, and after giving effect to this Seventh
Amendment:



     (a) the Borrower, each of the Guarantors and each of the Majority Lenders shall have executed
and delivered counterparts of this Seventh Amendment;



     (b) the Lenders shall have received all expenses for which invoices have been presented, on or
before the Seventh Amendment Effective Date; and



     (c) the Lenders shall have received such legal opinions, officer’s certificates, resolutions,
documents and other instruments as are customary for transactions of this type or as they may
reasonably request.



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ARTICLE IV

Representations and Warranties




     The Borrower hereby represents and warrants to each Lender that:



     (a) Each of the representations and warranties made by the Borrower under the Credit Agreement
and each other Loan Document is true and correct on and as of the actual date of execution of this
Seventh Amendment by the Borrower, as if made on and as of such date, except for any
representations and warranties made as of a specified date, which are true and correct as of such
specified date.



     (b) At the time of, and immediately after giving effect to, this Seventh Amendment, no Default
has occurred and is continuing.



     (c) The execution, delivery and performance by the Borrower of this Seventh Amendment have
been duly authorized by the Borrower.



     (d) This Seventh Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.



     (e) The execution, delivery and performance by the Borrower of this Seventh Amendment (i) does
not require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority or any other third Person (including shareholders or any class of directors,
whether interested or disinterested, of the Borrower or any other Person), nor is any such consent,
approval, registration, filing or other action necessary for the validity or enforceability of this
Seventh Amendment or any Loan Document or the consummation of the transactions contemplated
thereby, except such as have been obtained or made and are in full force and effect other than
those third party approvals or consents which, if not made or obtained, would not cause a Default
hereunder, could not reasonably be expected to have a Material Adverse Effect or do not have an
adverse effect on the enforceability of the Loan Documents, (ii) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of the Borrower or any
Restricted Subsidiary or any order of any Governmental Authority, (iii) will not violate or result
in a default under any indenture, agreement or other instrument binding upon the Borrower or any
Restricted Subsidiary or its Properties, or give rise to a right thereunder to require any payment
to be made by the Borrower or such Restricted Subsidiary and (iv) will not result in the creation
or imposition of any Lien on any Property of the Borrower or any Restricted Subsidiary (other than
the Liens created by this Seventh Amendment or the Loan Documents).



ARTICLE V

Miscellaneous




     Section 5.01 Credit Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Credit Agreement and other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed as so amended. Except as expressly set
forth herein, this Seventh Amendment shall not be deemed to be a waiver, amendment or modification
of any provisions of the Credit Agreement or any other Loan Document or any right, power or remedy
of the Administrative Agent or Lenders, or constitute a waiver of any provision



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of the Credit Agreement or any other Loan Document, or any other document, instrument and/or
agreement executed or delivered in connection therewith or of any Default or Event of Default under
any of the foregoing, in each case whether arising before or after the date hereof or as a result
of performance hereunder or thereunder. This Seventh Amendment also shall not preclude the future
exercise of any right, remedy, power, or privilege available to the Administrative Agent and/or
Lenders whether under the Credit Agreement, the other Loan Documents, at law or otherwise. All
references to the Credit Agreement shall be deemed to mean the Credit Agreement as modified hereby.
The parties hereto agree to be bound by the terms and conditions of the Credit Agreement and Loan
Documents as amended by this Seventh Amendment, as though such terms and conditions were set forth
herein. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein” or words of similar import shall mean and be a reference to the Credit Agreement as
amended by this Seventh Amendment, and each reference herein or in any other Loan Documents to the
“Credit Agreement” shall mean and be a reference to the Credit Agreement as amended and modified by
this Seventh Amendment.



     Section 5.02 GOVERNING LAW. THIS SEVENTH AMENDMENT, AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.



     Section 5.03 Descriptive Headings, Etc. The descriptive headings of the sections of
this Seventh Amendment are inserted for convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof. The statements made and the terms defined
in the recitals to this Seventh Amendment are hereby incorporated into this Seventh Amendment in
their entirety.



     Section 5.04 Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with this Seventh Amendment, the Loan Documents and any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Lenders. The agreement set forth in this
Section 5.04 shall survive the termination of this Seventh Amendment and the Credit
Agreement.



     Section 5.05 Entire Agreement. This Seventh Amendment and the documents referred to
herein represent the entire understanding of the parties hereto regarding the subject matter hereof
and supersede all prior and contemporaneous oral and written agreements of the parties hereto with
respect to the subject matter hereof. This Seventh Amendment is a Loan Document executed under the
Credit Agreement.



     Section 5.06 Counterparts. This Seventh Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of the signature page of this Seventh Amendment by facsimile or other
electronic transmission shall be effective as delivery of a manually executed counterpart thereof.



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     Section 5.07 Successors. The execution and delivery of this Seventh Amendment by any
Lender shall be binding upon each of its successors and assigns.



[Signatures Begin on Next Page]




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     IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be duly executed
by their respective authorized officers as of the date first written above.



BORROWER:




	 	 	 	 	 
	 	RESOLUTE ANETH, LLC

 	 
	 	By:  	/s/ Theodore Gazulis
 	 
	 	 	Theodore Gazulis, 	 
	 	 	Vice President — Finance and Chief Financial Officer 	 
	 




GUARANTORS:



	 	 	 	 	 
	 	RESOLUTE ENERGY CORPORATION




HICKS ACQUISITION COMPANY I, INC.



RESOLUTE NATURAL RESOURCES COMPANY, LLC (f/k/a Resolute Natural Resources Company)



RNRC HOLDINGS, INC.



RESOLUTE WYOMING, INC. (f/k/a Primary Natural Resources, Inc.)



BWNR, LLC



WYNR, LLC

 	 
	 	By:  	/s/ Theodore Gazulis
 	 
	 	 	Theodore Gazulis, 	 
	 	 	Vice President — Finance and Chief Financial Officer 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent and a Lender

 	 
	 	By:  	/s/ Oleg Kogan
 	 
	 	 	Oleg Kogan 	 
	 	 	Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Syndication Agent and a Lender

 	 
	 	By:  	/s/ Oleg Kogan
 	 
	 	 	Oleg Kogan 	 
	 	 	Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	BMO CAPITAL MARKETS FINANCING, INC.,

as Co-Syndication Agent and a Lender

 	 
	 	By:  	/s/ Gumaro Tijerina
 	 
	 	 	Name:  	Gumaro Tijerina 	 
	 	 	Title:  	Director 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	DEUTSCHE BANK SECURITIES INC.,

as Co-Documentation Agent

 	 
	 	By:  	/s/ Valerie Shapiro
 	 
	 	 	Name:  	Valerie Shapiro 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                    /s/ Michael Getz
 	 
	 	 	Name:  	Michael Getz 	 
	 	 	Title:  	Associate 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender

 	 
	 	By:  	/s/ Marcus M. Tarkington
 	 
	 	 	Name:  	Marcus M. Tarkington 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Paul O’Leary
 	 
	 	 	Name:  	Paul O’Leary 	 
	 	 	Title:  	Director 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	FORTIS CAPITAL CORP.,

as Co-Documentation Agent and a Lender

 	 
	 	By:  	/s/ Michaela Braun
 	 
	 	 	Name:  	Michaela Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                /s/ Stephen R. Staples
 	 
	 	 	Name:  	Stephen R. Staples 	 
	 	 	Title:  	Director 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Bruce E. Hernandez
 	 
	 	 	Name:  	Bruce E. Hernandez 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	UNION BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ Douglas Gale
 	 
	 	 	Name:  	Douglas Gale 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Lender

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Marie Haddad
 	 
	 	 	Name:  	Marie Haddad 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/s/ Matt Turner
 	 
	 	 	Name:  	Matt Turner 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	GUARANTY BANK AND TRUST COMPANY,

as a Lender

 	 
	 	By:  	/s/ Gail J. Norsinger
 	 
	 	 	Name:  	Gail J. Norsinger 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	CITICORP USA, INC.,

as a Lender

 	 
	 	By:  	/s/ Todd J. Mogil
 	 
	 	 	Name:  	Todd J. Mogil 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement




 









 








	 	 	 	 	 
	 	ALLIED IRISH BANKS, p.l.c.,

as a Lender

 	 
	 	By:  	/s/ Vaughn Buck
 	 
	 	 	Name:  	Vaughn Buck 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                  /s/ David O’Driscol
 	 
	 	 	Name:  	David O’Driscol 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to

Seventh Amendment to Amended and Restated Credit Agreement