Exhibit 10.9


 


Execution Copy


 


FIRST AMENDMENT TO


 


INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT


 


This
First Amendment to Intercreditor and Collateral Agency Agreement (this “Amendment”), dated as of June 26, 2009, is among
RESACA EXPLOITATION, Inc. (fka Resaca Exploitation, LP) (the “Borrower”), Resaca Operating Company (the “Guarantor”); BP CORPORATION NORTH AMERICA INC. (the “Approved Hedge Counterparty”), CIT CAPITAL USA, INC., as
Administrative Agent, and in its capacity as collateral agent hereunder (“Collateral Agent”) for the benefit of
Creditors (as defined below).


 


Recitals


 


A.                                   The Borrower,
NGP Capital Resources Company (the “Prior
Administrative Agent”) and other financial institutions named and
defined therein as lenders (the “Original
Lenders”) and agents entered into that certain Credit
Agreement dated May 1, 2006„ as amended by Limited
Consent and Waiver and Amendment dated May 7, 2006, a First Amendment to
Credit Agreement dated May 31, 2007, a Second Amendment to Credit
Agreement dated August 1, 2007, a Third Amendment to Credit Agreement
dated October 12, 2007, a Limited Consent and Waiver and Amendment dated January 15,
2008, and a Fourth Amendment to Credit Agreement dated June 11, 2008 (as
amended, the “Original Credit Agreement”).


 


B.                                     The Borrower,
NGP Capital Resources Company as collateral agent for the Prior Administrative
Agent, Original Lenders and the Approved Hedge Counterparty (collectively, the “Creditors”) entered into that certain Intercreditor and
Collateral Agency Agreement dated May 1, 2006 (as
amended from time to time, the “Intercreditor
Agreement”);


 


C.                                     On July 10,
2008, the Borrower converted from “Resaca Exploitation, LP, as Delaware limited
partnership” into “Resaca Exploitation, Inc., a Texas corporation”.


 


D.                                    The Borrower,
the Prior Administrative Agent and other financial institutions named and
defined therein as lenders and agents amended and restated the Original Credit
Agreement by entering into an Amended and Restated Credit Agreement dated July 11,
2008 pursuant to which such lenders provided certain loans to the Borrower (as
heretofore amended, modified or supplemented, the “Existing
Credit Agreement”).


 


E.                                      The Prior
Administrative Agent resigned as Administrative Agent under the Existing Credit
Agreement and the other Loan Documents (as defined in the Existing Credit
Agreement) and pursuant to that certain Resignation and Appointment of
Administrative Agent Agreement, as of even date herewith, the parties to the
Existing Credit Agreement mutually agreed to ratify the appointment of CIT
Capital USA Inc. as successor Administrative Agent (in such capacity, the “Successor Agent”) under the Existing Credit
Agreement and the other Loan Documents (as defined in the Existing Credit
Agreement) and CIT Capital USA Inc. accepted such appointment


 


F.                                           The Borrower
has requested the Lenders, and the Lenders have agreed, to amend and restate
the Existing Credit Agreement, subject to the terms and conditions of that
certain Second Amended and Restated Credit Agreement dated as of June 26,
2009 (as the same may be further


 


1

















 


amended,
the “Credit Agreement”), of even date herewith by and among the Borrower,
the Successor Agent and the Lenders parties thereto.


 


G.                                     In addition,
the Intercreditor Agreement provides that Borrower is required to cause the Guarantor
to become bound by all of the terms of the Intercreditor Agreement on the terms
and conditions set forth therein.


 


H.                                    The Borrower,
the Approved Hedge Counterparty, the Collateral Agent and the Administrative
Agent, for and on behalf of Lenders, have agreed to amend the Intercreditor
Agreement to reflect the events described in Recitals C through G above as set
forth herein.


 


NOW
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and other good and valuable consideration, the existence and
sufficiency of which are expressly recognized by all of the parties hereto, the
parties agree as follows:


 


Section 1.                                            Defined Terms. Each
capitalized term used herein but not otherwise defined herein has the meaning
given such term in the Intercreditor Agreement, as amended by this Amendment.
Unless otherwise indicated, all section references in this Amendment refer to
sections of the Intercreditor Agreement.


 


Section 2.                                                          Amendments to
Intercreditor Agreement.


 


2.1                           Defined Terms and References.


 


(a)                                  All references
to “NGP Capital Resources Company” are hereby deleted and replaced with “CIT
Capital USA Inc.”


 


(b)                                 All references
to “Resaca Exploitation, LP” shall be deemed to mean and refer to “Resaca
Exploitation, Inc.”


 


(c)                                  All references
to “this Agreement” shall be deemed to mean and refer to the Intercreditor
Agreement as hereby amended and ratified by this Amendment.


 


(d)                                 All references
to the “Senior Credit Agreement” or “Credit Agreement” shall be deemed to mean
and refer to that certain Second Amended and Restated Credit Agreement dated June 26,
2009 (as from time to time amended, supplemented or restated).


 


(e)                                  The definition
of “Approved Hedge Counterparties” in Section 1.02 is herby amended
to delete the phrase “Section 4.1(t), Section 6.21, and
Section 7.3” and replace such deleted phrase with “Section 6.1(o), Section 8.21,
and Section 9.3”.


 


2.2                           Amendment to
Annex I. Annex I of the Intercreditor Agreement is hereby amended to delete
such Annex in its entirety and replaced such Annex by Annex I attached
hereto.


 


2.3                           Amendment to Section 6.04. Section 6.04
(Notices, etc.) is hereby amended to delete
the name and address under “To Collateral Agent or Administrative Agent” and to
replace such name and address with the following name and address:


 


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CIT
Capital USA Inc.


505
Fifth Avenue, 10th Floor


New
York, NY 10017


Attn:
Marc Theisinger


Telecopy
No.: (212) 771-9675


 


with
a copy to:


 


CIT
Capital USA Inc.


700
Louisiana Street, Suite 5200


Houston,
TX 77002


Attn:
David Bornstein


Telecopy
No. (713) 237-8156


 


Section 3.                                                          Guarantor as
Additional Party to the Intercreditor Agreement.


 


3.1                           Agreement to be
Bound. The Guarantor shall be bound by all of the terms and provisions of the
Intercreditor Agreement.


 


3.2                           Intercreditor
Agreement Controls. The Guarantor acknowledges and agrees that the
terms of the Intercreditor Agreement shall control over the terms of the
Security Documents to the extent of any conflict relating to the relative
rights of Creditors.


 


3.3                           INDEMNITY. THE INDEMNITY
AND REIMBURSEMENT PROVISIONS CONTAINED IN SECTION 6.05 SHALL APPLY TO ALL
MATTERS UNDER THE INTERCREDITOR AGREEMENT AND THE GUARANTOR AGREES TO INDEMNIFY
AND REIMBURSE THE INDEMNITEES IN ACCORDANCE WITH THE TERMS THEREOF.


 


3.4                           Benefit of
Agreement. Except as stated in Section 6.02 of the
Intercreditor Agreement, the terms and provisions of the Intercreditor
Agreement, other than those which by their terms specifically apply to Borrower
or any Subsidiary Guarantor, shall inure solely to the benefit of each Creditor
and its respective successors and assigns and the terms and provisions of the
Agreement shall not inure to the benefit of nor be enforceable by the Guarantor
or its successors or assigns. The parties hereto agree that the Guarantor shall
not be bound by any amendment to the Intercreditor Agreement which would have
the effect of increasing its Obligations and indemnities hereunder or materially
affecting their rights or duties under the Security Documents unless it shall
have consented to such amendment.


 


3.5                           Further
Assurances. The Guarantor at its expense will execute,
acknowledge and deliver all such agreements and instruments and take all such
action as the Collateral Agent or any Creditor from time to time may reasonably
request in order to further effectuate the purposes of this Supplemental
Agreement and the Intercreditor Agreement and to carry out the terms hereof and
thereof.


 


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3.6                           Address for
Notices. All notices and other communications given to the Guarantor under the
Intercreditor Agreement may be given at its address or telecopier number as
follows:


 


Resaca
Operating Company


1331
Lamar, Suite 1450


Houston,
Texas 77010


Attention:
Mr. Dennis Hammond


Telecopier
No.: (713) 655-1711


 


Section 4.                                                          Miscellaneous.


 


4.1                           Ratification; Confirmation. Except as
expressly amended hereby, the Agreement is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Agreement shall form a part of the Intercreditor
Agreement for all purposes, and every Creditor heretofore or hereafter
authenticated and delivered shall be bound hereby.


 


4.2                           Counterparts. This Amendment
may be executed by one or more of the parties hereto in any number of separate
counterparts, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.


 


4.3                           Successors and
Assigns. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.


 


4.4                           No Oral
Agreement. The Intercreditor Agreement as amended by
this Amendment represents the final agreement between the parties and may not
be contradicted by evidence of prior, contemporaneous, or unwritten oral
agreements of the parties. There are no subsequent oral agreements between the
parties.


 


4.5                           GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF TEXAS BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


4.6                           Collateral
Agent Makes No Representation. Collateral Agent makes no representation
as to the validity or sufficiency of this Agreement, or the Intercreditor
Agreement as amended hereby.


 


4.7                           Effect of
Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.


 


[SIGNATURE PAGE BEGINS NEXT PAGE]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first written above.


 


 


	
   

  	
  RESACA
  EXPLOITATION, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chris Work

  
	
   

  	
   

  	
  Chris
  Work, as Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESACA
  OPERATING COMPANY, as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dennis Hammond

  
	
   

  	
   

  	
  Dennis
  Hammond, as Director and President

  



 


SIGNATURE PAGE TO

FIRST AMENDMENT TO INTERCREDITOR AGREEMENT


 


S-1

















 


	
   

  	
  CIT CAPITAL USA INC.,

  
	
   

  	
  as
  the Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David M. Bornstein

  
	
   

  	
   

  	
  David
  M. Bornstein, as Vice President

  



 


SIGNATURE PAGE TO

FIRST AMENDMENT TO INTERCREDITOR AGREEMENT


 


S-2

















 


	
   

  	
  BP CORPORATION NORTH AMERICA INC.,

  
	
   

  	
  as
  an Approved Hedge Counterparty

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steve Provenzano

  
	
   

  	
  Name:

  	
  Steve
  Provenzano

  
	
   

  	
  Title:

  	
  CCO
  Financial Products

  



 


SIGNATURE PAGE TO

FIRST AMENDMENT TO INTERCREDITOR AGREEMENT


 


S-3

















 


ANNEX I


 


Security Documents


 


1.                                       Deed of Trust,
Line of Credit Mortgage, Assignment, Security Agreement and Financing Statement
dated May 1, 2006 executed by the Borrower in favor of NGP Capital
Resources Company, as collateral agent for the benefit of the Creditors, pledging
Oil and Gas Properties located in Texas and New Mexico, amended by First
Amendment to Deed of Trust, Line of Credit Mortgage, Assignment, Security
Agreement and Financing Statement dated July 11, 2008 executed by the
Borrower in favor of NGP Capital Resources Company, as collateral agent for the
benefit of the Creditors, and as further amended by Second Amendment to Deed of
Trust, Line of Credit Mortgage, Assignment, Security Agreement and Financing
Statement of even date herewith executed by the Borrower in favor of the CIT
Capital USA Inc., as collateral agent for the benefit of the Creditors, each
recorded in the following jurisdictions:


 


Crane
County, Texas


Ector
County, Texas


Howard
County, Texas


Mitchell
County, Texas


Pecos
County, Texas


Winkler
County, Texas


Lea
County, New Mexico


Eddy
County, New Mexico


 


2.                                       UCC-1 Financing
Statement naming the Borrower as debtor and NGP Capital Resources Company as
secured party, covering all assets of the Borrower and filed with the Secretary
of State of Texas in connection with the Existing Credit Agreement.


 


3.                                       UCC-3 Financing
Statement Amendment amending item 2 above in connection with the resignation of
NGP Capital Resources Company as collateral agent and appointment of CIT
Capital USA Inc. as successor collateral agent under the Security Documents.


 


4                                          Amended and Restated
Security Agreement June 26, 2009 by the Borrower in favor of CIT Capital
USA Inc., as the collateral agent for the benefit of the Creditors.


 


5.                                       UCC-1 Financing
Statement naming the Borrower as debtor and CIT Capital USA Inc., as the
collateral agent for the benefit of the Creditors, as secured party, covering
all assets of the Borrower and filed with the Secretary of State of Texas in
connection with item 4 above.


 


6.                                       Guaranty
Agreement dated June 26, 2009 by Resaca Operating Company in favor of CIT
Capital USA Inc., as the collateral agent for the benefit of the Creditors.


 

















 


Schedule I


 


To


 


Annex I


 


DESCRIPTION OF PLEDGED SECURITIES


 


Securities
pledged:


 


	
  Owner

  	
   

  	
  Issuer

  	
   

  	
  Percentage

  Owned

  	
   

  	
  Percentage

  Pledged

  	
   

  	
  Class of

  Stock or other

  Equity Interest

  	
   

  	
  No. of

  Shares

  	
   

  	
  Certificate

  No.

  
	
  Resaca Exploitation, Inc.

  	
   

  	
  Resaca Operating Company

  	
   

  	
  100%

  	
   

  	
  100%

  	
   

  	
  Common

  	
   

  	
  1000

  	
   

  	
  1