FIRST AMENDMENT TO CREDIT AGREEMENT
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This First Amendment to Credit Agreement (this "Amendment") is made
effective as of the 29th day of September 2003, by and among ATLAS AMERICA,
INC., a Delaware corporation (the "Borrower"); AIC, INC., a Delaware corporation
("AIC"); ATLAS ENERGY CORPORATION an Ohio corporation ("AEC"); ATLAS AMERICA,
INC., a Pennsylvania corporation ("Atlas PA"); ATLAS ENERGY GROUP, INC., an Ohio
corporation ("Atlas Energy"); ATLAS ENERGY HOLDINGS, INC., a Delaware
corporation ("Atlas Holdings"), ATLAS NOBLE CORP., a Delaware corporation
("Atlas Noble"); ATLAS RESOURCES, INC., a Pennsylvania corporation ("Atlas
Resources"); REI-NY, INC., a Delaware corporation ("REI"); RESOURCE AMERICA,
INC., a Delaware corporation ("Parent"); RESOURCE ENERGY, INC., a Delaware
corporation ("Resource Energy"); and VIKING RESOURCES CORPORATION, A
Pennsylvania corporation ("Viking"), (AIC, AEC, Atlas Energy, Atlas Holdings,
Atlas Noble, Atlas PA, Atlas Resources, Parent, REI, Resource Energy, and Viking
collectively, the "Guarantors" the Borrower and the Guarantors herein
collectively, the "Obligors"); each of the lenders that is a signatory hereto
(individually, together with its successors and assigns, a "Lender" and,
collectively, the "Lenders"); WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity the "Administrative Agent"), UNION BANK OF
CALIFORNIA, N.A. as Syndication Agent ("Syndication Agent") and WACHOVIA BANK,
NATIONAL ASSOCIATION, as issuing bank (in such capacity, together with its
successors in such capacity, the "Issuing Bank").
R E C I T A L S:
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A. The parties hereto are parties to the Credit Agreement dated July
31, 2002 pursuant to which the Lenders agreed to loan up to $75,000,000 to
Borrower (the "Original Agreement").
B. Immediately prior to the effectiveness of this Amendment Union Bank
of California, N.A. has assigned to Wachovia Bank, National Association under
that certain Assignment Agreement of even date herewith (the "Assignment
Agreement") 1.0256% of the Aggregate Maximum Revolving Credit Commitments (the
"Assigned Interest").
C. Borrower has requested that Administrative Agent and Lenders consent
to amend the Original Agreement as provided herein, subject to the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound, the parties agree as follows:
SECTION 1. Terms Defined in Agreement. As used in this Amendment,
except as may otherwise be provided herein, all capitalized terms which are
defined in the Original Agreement shall have the same meaning herein as therein,
all of such terms and their definitions being incorporated herein by reference.
The Original Agreement, as amended by this Amendment, is hereinafter called the
"Agreement."
SECTION 2. Amendment to Agreement. Subject to the conditions precedent
set forth in Section 4 hereof, the Original Agreement is hereby amended as
follows:
(a) Definition of Consolidated Subsidiaries. The definition of
"Consolidated Subsidiaries" appearing in Section 1.02 of the Agreement
is hereby amended and restated as follows:
"Consolidated Subsidiaries shall mean each Subsidiary of a
Person (whether now existing or hereafter created or acquired)
the financial statements of which shall be (or should have
been) consolidated with the financial statements of such
Person in accordance with GAAP, provided that "Consolidated
Subsidiaries" shall not include Atlas Pipeline or its
Subsidiaries."
(b) Annex 1. Annex 1 attached to the Original Agreement is
hereby deleted and replaced in its entirety by Annex 1 attached to this
Amendment.
SECTION 3. Borrowing Base Redetermination. Subject to the conditions
precedent set forth in Section 4 hereof, the Borrowing Base shall be increased
to Fifty-four Million One Hundred Sixty-six Thousand Six Hundred Sixty-six and
66/100 Dollars ($54,166,666.66) until such time as it may be further
redetermined as provided under Section 2.08 of the Original Agreement.
SECTION 4. Conditions of Effectiveness. The obligations of
Administrative Agent and Lenders to amend the Original Agreement as provided in
this Amendment is subject to the fulfillment of the following conditions
precedent:
(a) The Assignment Agreement from Union Bank of California,
N.A., to Wachovia Bank, National Association shall be fully executed.
(b) Borrower shall deliver to Administrative Agent and Lenders
multiple counterparts of this Amendment, duly executed by the Obligors;
(c) Borrower shall have made payment to Administrative Agent,
in immediately available funds, payment of $6,250 as a fee for the
increase in the Borrowing Base equal to three-eighths of one percent
(0.375%) of the marginal increase over the prior Borrowing Base payable
to the Lenders plus all accrued and unpaid legal fees and expenses
referred to in Section 12.03 of the Original Agreement and Section 7
hereof to the extent invoices for such fees and expenses have been
delivered to Borrower.
SECTION 5. Representations and Warranties of Obligors. Each of the
Obligors represents and warrants to Administrative Agent and Lenders, with full
knowledge that Administrative Agent and Lenders are relying on the following
representations and warranties in executing this Amendment, as follows:
(a) Each Obligor has the organizational power and authority to
execute, deliver and perform this Amendment and such other Loan
Documents executed in connection herewith, and all organizational
action on the part of such Person requisite for the due execution,
delivery and performance of this Amendment and such other Loan
Documents executed in connection herewith has been duly and effectively
taken.
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(b) The Original Agreement as amended by this Amendment and
the Loan Documents and each and every other document executed and
delivered in connection with this Amendment to which any Obligor is a
party constitute the legal, valid and binding obligations of each
Obligor to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms.
(c) This Amendment does not and will not violate any
provisions of any of the Organization Documents of any Obligor, or any
contract, agreement, instrument or requirement of any Governmental
Authority to which Borrower is subject. Obligors' execution of this
Amendment will not result in the creation or imposition of any lien
upon any properties of any Obligor other than those permitted by the
Original Agreement and this Amendment.
(d) Execution, delivery and performance of this Amendment by
Obligors does not require the consent or approval of any other Person,
including, without limitation, any regulatory authority or governmental
body of the United States of America or any state thereof or any
political subdivision of the United States of America or any state
thereof.
(e) No Default or Event of Default exists and all of the
representations and warranties contained in the Original Agreement and
all instruments and documents executed pursuant thereto or contemplated
thereby are true and correct in all material respects on and as of this
date other than those which have been disclosed to Administrative Agent
and Lenders in writing.
(f) Nothing in this Section 4 of this Amendment is intended to
amend any of the representations or warranties contained in the
Agreement or of the Loan Documents to which any Obligor is a party.
SECTION 6. Reference to and Effect on the Agreement.
(a) Upon the effectiveness of Sections 1 and 2 hereof, on and
after the date hereof, each reference in the Original Agreement to
"this Agreement," "hereunder," "hereof," "herein," or words of like
import, shall mean and be a reference to the Original Agreement as
amended hereby.
(b) Except as specifically amended by this Amendment, the
Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
SECTION 7. Cost, Expenses and Taxes. Borrower agrees to pay on demand
all reasonable costs and expenses of Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including reasonable
attorneys' fees and out-of-pocket expenses of Administrative Agent. In addition,
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Borrower shall pay any and all recording and filing fees payable or determined
to be payable in connection with the execution and delivery, filing or recording
of this Amendment and the other instruments and documents to be delivered
hereunder, and agrees to save Administrative Agent harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
SECTION 8. Extent of Amendments. Except as otherwise expressly provided
herein, the Original Agreement and the other Loan Documents are not amended,
modified or affected by this Amendment. Obligors ratify and confirm that (i)
except as expressly amended hereby, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Original Agreement
remain in full force and effect, (ii) each of the other Loan Documents are and
remain in full force and effect in accordance with their respective terms, and
(iii) the Collateral is unimpaired by this Amendment.
SECTION 9. Disclosure of Claims. As additional consideration to the
execution, delivery, and performance of this Amendment by the parties hereto and
to induce Lenders to enter into this Amendment, each Obligor represents and
warrants that no Obligor knows of no defenses, counterclaims or rights of setoff
to the payment of any Indebtedness.
SECTION 10. Affirmation of Security Interest. Obligors hereby confirm
and agree that any and all liens, security interest and other security or
Collateral now or hereafter held by Administrative Agent for the benefit of
Lenders as security for payment and performance of the Obligations hereby under
such Security Instruments to which such Obligor is a party are renewed and
carried forth to secure payment and performance of all of the Obligations. The
Security Instrument are and remain legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their respective terms.
SECTION 11. Execution and Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
facsimile and other Loan Documents shall be equally as effective as delivery of
a manually executed counterpart of this Amendment and such other Loan Documents.
SECTION 12. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
SECTION 13. Headings. Section headings in this Amendment are included
herein for convenience and reference only and shall not constitute a part of
this Amendment for any other purpose.
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SECTION 14. NO ORAL AGREEMENTS. THE ORIGINAL AGREEMENT (AS AMENDED BY
THIS AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page intentionally blank. Signature
pages to follow.]
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IN WITNESS WHEREOF, the parties have executed this Amendment to Credit Agreement
the day and year first above written.
BORROWER:
ATLAS AMERICA, INC., a Delaware corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
GUARANTORS:
AIC, INC., a Delaware corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
ATLAS AMERICA, INC., a Pennsylvania
corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
ATLAS ENERGY CORPORATION, an Ohio
corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Secretary
ATLAS ENERGY GROUP, INC., an Ohio
corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
S-1
Signature Page to First Amendment to Credit Agreement
ATLAS ENERGY HOLDINGS, INC., a
Delaware corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
ATLAS NOBLE CORP., a
Delaware corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
ATLAS RESOURCES, INC., a
Pennsylvania corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
REI-NY, INC., a
Delaware corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Assistant Secretary
RESOURCE AMERICA, INC., a
Delaware corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
RESOURCE ENERGY, INC., a
Delaware corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
VIKING RESOURCES CORPORATION, a
Pennsylvania corporation
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
S-2
Signature Page to First Amendment to Credit Agreement
LENDER, ADMINISTRATIVE AGENT AND
ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
Individually, Administrative Agent and
Issuing Bank
By:__________________________________________
Xxxxxxx Xxxxxxxx
Director
S-3
Signature Page to First Amendment to Credit Agreement
LENDER AND SYNDICATION AGENT
UNION BANK OF CALIFORNIA, N.A.,
Individually and as Syndication Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
S-4
Signature Page to First Amendment to Credit Agreement
ANNEX 1
----------------------------------- ------------------- ------------------------- ------------------------------------
Percentage Letter of Credit Maximum Revolving
Lender Share Commitment Credit Amount
----------------------------------- ------------------- ------------------------- ------------------------------------
Wachovia Bank,
National Association 67.6923% $6,769,230 $50,769,225
----------------------------------- ------------------- ------------------------- ------------------------------------
Union Bank of California, N.A. 32.3077% $3,230,770 $24,230,775
----------------------------------- ------------------- ------------------------- ------------------------------------
Total 100% $75,006,000
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Annex 1