exv10w6






Exhibit 10.6




 

FIFTH AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT




Dated July 28, 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 FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Fifth
Amendment”), dated as of July 28, 2009, is by and among Resolute Aneth, LLC, a Delaware limited
liability company (the “Borrower”), Resolute Holdings Sub, LLC, a Delaware limited
liability company, 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, and that certain Fourth Amendment to Amended and Restated Credit Agreement dated May 12, 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 amend the current ratio covenant and make the other modifications
specified herein; 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 Fifth 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:




 









 









     ““Fifth Amendment” means that certain Fifth Amendment to
Amended and Restated Credit Agreement, dated as of July 28, 2009, among the
Borrower, the Administrative Agent and the other Lenders party thereto.”




     ““Fifth Amendment Effective Date” means July 28, 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, and further
amended by the Fifth Amendment, as the same may from time to time be
amended, modified, supplemented or restated.”



     Section 2.02 Amendment to Section 9.01(a) of the Credit Agreement. Sections 9.01(a)
of the Credit Agreement is hereby amended by deleting it in its entirety and inserting the
following in lieu thereof:




     “(a) Current Ratio. The Loan Parties will not, as of the last
day of any fiscal quarter (other than the fiscal quarters ending on March
31, 2009 and June 30, 2009), permit the ratio of (i) consolidated current
assets of Parent and its Consolidated Subsidiaries (including the unused
amount of the total Commitments, but excluding non-cash assets under FAS
133) to (ii) consolidated current liabilities of Parent and its Consolidated
Subsidiaries (excluding non-cash obligations under FAS 133) to be less than
1.0 to 1.0.”



ARTICLE III

Conditions Precedent




     This Fifth Amendment shall be subject to the satisfaction of the following conditions
precedent or concurrent on or before July 28, 2009, and after giving effect to this Fifth
Amendment:



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




          (b) the Lenders, the Administrative Agent and the Arrangers shall have received all fees
required to be paid, and all expenses for which invoices have been presented, on or before the
Fifth Amendment Effective Date (including, without limitation, an amendment fee in an amount equal
to 0.125% of the Commitments, payable to the Administrative Agent for the account of the Lenders
party to this Fifth Amendment on a pro rata basis in accordance with their Commitments); and




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          (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.




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
Fifth 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 Fifth Amendment, no Default
has occurred and is continuing.




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




          (d) This Fifth 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 Fifth 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
Fifth 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 Fifth 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



3









 







full force and effect and are hereby ratified and confirmed as so amended. Except as
expressly set forth herein, this Fifth 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 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 Fifth 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 Fifth 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 Fifth 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 Fifth Amendment.



     Section 5.02 GOVERNING LAW. THIS FIFTH 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 Fifth 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 Fifth Amendment are hereby incorporated into this Fifth 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 Fifth 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 Fifth Amendment and the Credit Agreement.



     Section 5.05 Entire Agreement. This Fifth 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 Fifth Amendment is a Loan Document executed under the
Credit Agreement.



     Section 5.06 Counterparts. This Fifth 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



4









 







executed counterpart of the signature page of this Fifth Amendment by facsimile or other
electronic transmission shall be effective as delivery of a manually executed counterpart thereof.



     Section 5.07 Successors. The execution and delivery of this Fifth 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 Fifth 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 HOLDINGS SUB, LLC	 	 
	 
	 	 	 	 	 	 
	 	 	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

Fifth Amendment to Amended and Restated Credit Agreement




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent and a Lender

 	 
	 	By:  	/s/ Kevin Scotto
 	 
	 	 	Kevin Scotto 	 
	 	 	Vice President 	 
	 



Signature Page to

Fifth 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

Fifth Amendment to Amended and Restated Credit Agreement









 









 











	 	 	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING, INC.,

as Co-Syndication Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Gumaro Tijerina
 

Gumaro Tijerina
	 	 
	 

	 	Title:
	 	Director	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement







 









 








	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK SECURITIES INC.,
as Co-Documentation Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Vincent D’amore
 

Vincent D’amore
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ David J. Crescenzi
 

David J. Crescenzi
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Dusan Lazaroy
 

Dusan Lazaroy
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Valerie Shapiro
 

Valerie Shapiro
	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	FORTIS CAPITAL CORP.,

as Co-Documentation Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ David Montgomery
 

David Montgomery
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Darrell Holley
 

Darrell Holley
	 	 
	 

	 	Title:
	 	Managing Director	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Tara R. McLean
 

Tara R. McLean
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Josh Patterson
 

Josh Patterson
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mary E. Evans
 

Mary E. Evans
	 	 
	 

	 	Title:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Marie Haddad
 

Marie Haddad
	 	 
	 

	 	Title:
	 	Associate Director	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	COMERICA BANK,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Matt Turner
 

Matt Turner
	 	 
	 

	 	Title:
	 	Corporate Banking Officer	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	GUARANTY BANK AND TRUST COMPANY,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gail J. Nofsinger
 

Gail J. Nofsinger
	 	 
	 

	 	 	 	Senior Vice President	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	CITICORP USA, INC.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Todd J. Mogil
 

Todd J. Mogil
	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	ALLIED IRISH BANKS, p.l.c.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Signature Page to

Fifth Amendment to Amended and Restated Credit Agreement