exv10w3






Exhibit 10.3




EXECUTION VERSION



  

 



SECOND AMENDMENT TO




AMENDED AND RESTATED CREDIT AGREEMENT




Dated September 12, 2007




Among




RESOLUTE ANETH, LLC,

as Borrower




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent




CITIGROUP GLOBAL MARKETS INC.,

as Syndication Agent




And




The Lenders Party Hereto




DEUTSCHE BANK SECURITIES, INC., FORTIS CAPITAL CORP. AND

U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents


 

 



 









 





EXECUTION VERSION





     THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Second
Amendment”), dated effective as of September 12, 2007, 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”),
Citigroup Global Markets Inc., as Syndication Agent (the “Syndication Agent”) and Deutsche
Bank Securities, Inc., Fortis Capital Corp. and U.S. Bank National Association, 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 as of April 14,
2006, as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated
June 27, 2007 (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 minimum interest coverage ratio and the maximum leverage ratio covenants of the Credit
Agreement;



     WHEREAS, subject to the satisfaction of the conditions set forth herein, the Administrative
Agent and the Lenders are willing to amend the Credit Agreement and to 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 Second 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
definition in its proper alphabetical order:



 









 





EXECUTION VERSION





     “Second Amendment” means that certain Second Amendment to Amended and
Restated Credit Agreement, dated as of September 12, 2007, among the Borrower, the
Administrative Agent and the other Lenders party thereto.



     (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 and further amended by the Second Amendment, as the same may from time to
time be amended, modified, supplemented or restated.



     Section 2.02 Amendment to Section 9.01 of the Credit Agreement Sections 9.01(b) and
(c) of the Credit Agreement are hereby amended by deleting them in their entirety and inserting the
following in lieu thereof:



“(b) Minimum Interest Coverage Ratio. The Loan Parties will not, as of the
last day of any fiscal quarter commencing with the quarter ending September 30,
2007, permit the ratio of EBITDA of Parent and its Consolidated Subsidiaries for
the four quarter period ending on such date to Interest Expense for the same period
to be less than 2.25:1.00 with respect to the periods ending on or before June 30,
2008; 2.50:1.00 with respect to the period commencing July 1, 2008 and ending on or
before September 30, 2008; and 2.75:1.00 for all periods commencing October 1, 2008
and ending thereafter.



(c) Maximum Leverage Ratio. The Loan Parties will not, at any time,
commencing with the quarter ending September 30, 2007, permit the ratio of Funded
Debt as of such time to EBITDA of Parent and its Consolidated Subsidiaries for the
four quarter period ending on the last day of the immediately preceding fiscal
quarter for which financial statements have been provided pursuant to Section
8.01(a) to be greater than 6.00:1.00 with respect to the periods ending on or
before September 30, 2007; with respect to the period commencing October 1, 2007
and ending December 31, 2007 to be greater than 5.50:1.00; with respect to the
period commencing January 1, 2008 and ending March 31, 2008 to be greater than
5.25:1.00; with respect to the period commencing April 1, 2008 and ending June 30,
2008 to be greater than 4.75:1.00; with respect to the period commencing July 1,
2008 and ending September 30, 2008 to be greater than 4.00:1.00; and with respect
to the period commencing October 1, 2008 and for all periods ending thereafter to
be greater than 3.75:1.00.”



ARTICLE III

Conditions Precedent



This Second Amendment shall be subject to the satisfaction of the following conditions precedent or
concurrent, and after giving effect to this Second Amendment:




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EXECUTION VERSION




     (a) the representations and warranties contained herein and in all other Loan Documents shall
be true and correct in all material respects as of the date hereof, except for such representations
and warranties limited to an earlier date;



     (b) no Default shall have occurred and be continuing;



     (c) no Material Adverse Effect shall have occurred and be continuing;



     (d) the Administrative Agent shall have received counterparts hereof duly executed by the
Borrower and each of the Lenders;



     (e) all costs, fees, expenses and other compensation contemplated by this Second Amendment and
the other Loan Documents, and for which statements or invoices have been submitted to the Borrower
shall have been paid; and



     (f) the ratification of the Guaranty Agreement by the Guarantors.



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 in all material respects on and as of the actual
date of execution of this Second 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 in all material respects as of such specified date.



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



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



     (d) The execution, delivery and performance by the Borrower of this Second 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
Second 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



4









 





EXECUTION VERSION



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 Second 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 Second 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 Second 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 Second 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 Second 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 Second Amendment.



     Section 5.02 GOVERNING LAW. THIS SECOND 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 Second 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 Second Amendment are hereby incorporated into this Second 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 Second 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



5









 





EXECUTION VERSION



forth in this Section 5.04 shall survive the termination of this Second Amendment and
the Credit Agreement.




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



     Section 5.06 Counterparts. This Second 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 Second Amendment by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.



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



[Signatures Begin on Next Page]




6









 




EXECUTION VERSION



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



	 	 	 	 	 
	 	RESOLUTE ANETH, LLC

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

Financial Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	RESOLUTE HOLDINGS SUB, LLC,

as Guarantor

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

Financial Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	RESOLUTE NATURAL RESOURCES COMPANY,

as Guarantor

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

Financial Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	BWNR, LLC,

as Guarantor

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

Financial Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	WYNR, LLC,

as Guarantor

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

Financial Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL

ASSOCIATION,

as Administrative Agent and a Lender

 	 
	 	By:  	                   /s/ Philip Trinder
 	 
	 	 	Philip Trinder, Director 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	CITICORP USA, INC.,

as Syndication Agent and a Lender

 	 
	 	By:  	                    /s/ David E. Hunt
 	 
	 	 	David E. Hunt, Vice President 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	DEUTSCHE BANK SECURITIES INC.,

as Co-Documentation Agent

 	 
	 	By:  	                 /s/ David E. Sisler
 	 
	 	 	David E. Sisler, Director 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                 /s/ Russell A. Johnson
 	 
	 	 	Russell A. Johnson, Director 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as a Lender

 	 
	 	By:  	/s/ Omayra Laucella
 	 
	 	 	Omayra Laucella, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                    /s/ Susan LeFevre
 	 
	 	 	Susan LeFevre, Director 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	FORTIS CAPITAL, CORP.,

as Documentation Agent and a Lender

 	 
	 	By:  	           /s/ Darrell Holley
 	 
	 	 	Darrell Holley, Managing Director 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	           /s/ Scott Myatt
 	 
	 	 	Scott Myatt, Vice President 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agent and a Lender

 	 
	 	By:  	            /s/ Tyler Fauerbach
 	 
	 	 	Tyler Fauerbach, Vice President 	 
	 	 	 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	BANK OF OKLAHOMA, N.A.,

as a Lender

 	 
	 	By:  	                  /s/ Monica Morton
 	 
	 	 	Monica Morton, 	 
	 	 	Commercial Banking Officer 	 
	 



Signature Page

Second Amendment to Amended and Restated Credit Agreement



 









 





EXECUTION VERSION




	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	               /s/ Josh Strong
 	 
	 	 	Josh Strong, Assistant Vice President 	 
	 	 	 	 
	 




Signature Page

Second Amendment to Amended and Restated Credit Agreement


 









 





EXECUTION VERSION




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	                  /s/ Guy Evangelista
 	 
	 	 	Guy Evangelista, Vice President 	 
	 	 	 	 
	 




Signature Page

Second Amendment to Amended and Restated Credit Agreement


 









 





EXECUTION VERSION




	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Lender

 	 
	 	By:  	              /s/ David B. Julie
 	 
	 	 	David B. Julie, Associate Director 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	              /s/ Irja R. Otsa
 	 
	 	 	Irja R. Otsa, Associate Director 	 
	 	 	 	 
	 




Signature Page

Second Amendment to Amended and Restated Credit Agreement


 









 





EXECUTION VERSION




	 	 	 	 	 
	 	ALLIED IRISH BANKS, p.l.c.,

as a Lender

 	 
	 	By:  	                    /s/ David O’Driscoll
 	 
	 	 	David O’Driscoll, Assistant Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                   /s/ Aidan Lanigan
 	 
	 	 	Aidan Lanigan, Director 	 
	 	 	 	 
	 




Signature Page

Second Amendment to Amended and Restated Credit Agreement


 









 





EXECUTION VERSION




RATIFICATION




     Each of the undersigned (“Guarantor”) hereby agrees that its liabilities under the
Amended and Restated Guaranty Agreement dated as of April 14, 2006 (“Guaranty”)
guaranteeing the indebtedness, obligations and liabilities of Resolute Aneth, LLC under that
certain Amended and Restated Credit Agreement dated as of April 14, 2006 as amended and certain
other documents, shall remain enforceable against Guarantor in accordance with the terms of the
Guaranty and shall not be reduced, altered, limited, lessened or in any way affected by the
execution and delivery of this Second Amendment to Amended and Restated Credit Amendment. Each
Guarantor hereby confirms and ratifies its liabilities under the Guaranty in all respects.



	 	 	 	 	 
	GUARANTORS:	RESOLUTE HOLDINGS SUB, LLC

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

Financial Officer 	 
	 



	 	 	 	 	 
	 	RESOLUTE NATURAL RESOURCES COMPANY

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

Financial Officer 	 
	 



	 	 	 	 	 
	 	BWNR, LLC

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

Financial Officer 	 
	 



	 	 	 	 	 
	 	WYNR, LLC

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

Financial Officer 	 
	 




Guaranty Ratification

Second Amendment to Amended and Restated Credit Agreement