LOAN AGREEMENT
This Agreement is executed on this 9th day of October 1997, and is made
and entered into by and between RESOURCE AMERICA, INC., a Delaware corporation
having its principal offices and place of business at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000 (the "Borrower") and KEYBANK, N.A., a national banking
association having offices at 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxx 00000 (the
"Bank").
WITNESSETH:
WHEREAS, subject to the terms and conditions contained herein, Bank
presently is willing to extend to Borrower loans hereunder in the aggregate not
to exceed FIVE MILLION DOLLARS ($5,000,000).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and with the intent to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1. REVOLVING CREDIT LOAN.
1.1 Credit. Subject to the terms and conditions hereof (including but
not limited to the conditions contained in Section 7.1 hereof), and relying on
the representations and warranties herein contained, Bank agrees to, and shall
be obligated to, lend to Borrower, from time to time in accordance with the
provisions of Section 1311.14 of the Ohio Revised Code and upon request of
Borrower as provided in section 7.1, during the period (the "Revolving Credit
Period") commencing on the effective date hereof and ending on June 30, 1999
(the "Termination Date"), an amount or amounts (the "Revolving Credit") not
exceeding in the aggregate at any one time outstanding FIVE MILLION DOLLARS
($5,000,000).
The loans which Bank is willing to make to Borrower hereunder shall be
evidenced by a note substantially in the form of Exhibit "A" attached hereto
and made a part hereof with appropriate insertions (the "Revolving Credit
Note"). Notwithstanding the principal amount of the Revolving Credit Note as
stated on the face thereof is in the amount of FIVE MILLION DOLLARS
($5,000,000), the actual principal amount due from the Borrower to the Bank on
account of the Revolving Credit Note, as of any date of computation, shall be
the sum of all advances then and theretofore made on account thereof less all
payments of principal actually received by the Bank in collected funds during
the same period; such advances and payments shall be noted on the records of the
Bank which shall be the evidence of the amount outstanding under the Revolving
Credit Note.
During the Revolving Credit Period, Borrower may borrow, repay and
reborrow funds under the Revolving Credit, as it may be adjusted pursuant
hereto, provided, however, that at no time shall the unpaid principal balance
outstanding under the Revolving Credit Note exceed FIVE MILLION DOLLARS
($5,000,000). Each borrowing and reborrowing shall be in a minimum amount of ONE
HUNDRED THOUSAND DOLLARS ($100,000); and each repayment shall be in a minimum
amount of ONE HUNDRED THOUSAND DOLLARS ($100,000) or the outstanding principal
balance of, and unpaid and accrued interest on, the Revolving Credit Note,
whichever is less, and shall be applied against principal and interest in such
order and in such amounts as Bank, in its sole discretion, shall determine.
1.2 Interest. Each borrowing made by Borrower hereunder shall bear
interest at an interest rate per annum equal to the Prime Rate from time to time
in effect plus one-quarter of one percent (0.25%). For purposes of this
Agreement, "Prime Rate" means the rate of interest determined and publicly
announced from time to time by the Bank as its "Prime Rate"; the Prime Rate is
one of several reference rates used by the Bank for pricing loans to its
borrowers, and such loans may be made at rates higher or lower than the Prime
Rate.
1.3 Repayment. The entire principal balance outstanding under the
Revolving Credit Note, and all unpaid and accrued interest thereon, shall be due
and payable on the Termination Date.
1.4 Adjustments to Revolving Credit.
(i) Determination of Borrowing Base. Promptly after October 1,
1998 and October 1 of each year thereafter until the Indebtedness (as defined in
Section 3 hereof) is paid in full, the Borrower shall furnish to the Bank a
report in form and substance and based upon assumptions satisfactory to the
Bank, of an independent petroleum engineer satisfactory to the Bank and/or, at
the option of Bank, the Bank will cause a petroleum engineer employed by it to
prepare a report, which report(s) shall be dated as of October 1 of such year
and shall set forth the remaining proven and producing unencumbered and
unimpaired gas and oil reserves attributable to all xxxxx identified by the
Borrower to the Bank (the "Xxxxx") in which the Borrower now or hereafter has an
interest, whether directly or indirectly, as an owner of a working interest,
royalty or overriding royalty, as a general or limited partner of a partnership,
as a coventurer of a joint venture or otherwise, and a projection of the rate of
gas and oil production from the Xxxxx as well as a projection of the total
future net operating income payable to the Borrower with respect thereto for a
twenty (20) year period ("Future Net Income"), as of such dates. In addition, at
any time and from time to time, at the option of Bank, the Bank, at its expense,
may cause a petroleum engineer employed by it to prepare a report in form and
substance and based upon assumptions satisfactory to the Bank, which report(s)
shall set forth the remaining proven and producing unencumbered and unimpaired
gas and oil reserves attributable to the Xxxxx and a projection of the rate of
gas and oil production from the Xxxxx as well as a projection of the Future Net
Income therefrom, as of such dates as the Bank may select. After receipt of such
report(s), the Bank shall make a determination (as set forth in the following
paragraph) of the Borrowing Base as of such dates and shall send a written
notification of such determination to the Borrower.
For the purposes of this Agreement, the "Borrowing Base" shall be the
lesser of (i) Five Million Dollars ($5,000,000) or (ii) an amount determined by
Bank in its sole discretion and based upon the remaining proven and producing
unencumbered and unimpaired gas and oil reserves attributable to the Xxxxx
[which reserves shall not exceed Ten Million Dollars ($10,000,000)], as set
forth in the engineering reports which the Bank elects to use and determined by
Bank in accordance with its then usual and customary engineering practices and
methods and economic parameters. Presently, Bank applies a valuation formula
establishing the Borrowing Base as fifty per cent (50%) of the standardized
measure of discounted future net cash flows produced from the Xxxxx. Bank agrees
to advise Borrower of change in Bank's valuation formula. For the purposes of
this Agreement, the Bank shall determine in its sole discretion whether any oil
and gas reserves, revenues and proceeds are unencumbered or proceeds are
encumbered or impaired even though they are not subject to any liens or security
interests.
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(ii) Adjustments to Borrowing Base. In the event that the principal
balance outstanding under the Revolving Credit Note shall, at any time, be in
excess of the then current Borrowing Base, the Borrower shall within thirty (30)
days after such occurrence make a payment on the Revolving Credit Note in an
amount equal to such excess (plus interest on such amount accrued to the date of
payment).
1.5 Commitment Fee. During and for the Revolving Credit Period,
Borrower shall pay to Bank a Commitment fee ("Commitment Fee") computed at the
rate of one-quarter of one percent (0.25%) per annum on the daily average
difference between the Revolving Credit, as it may be adjusted pursuant hereto,
and the principal balance outstanding under the Revolving Credit Note. The
Commitment Fee shall be due and payable quarterly, in arrears, beginning on the
first day of October, 1997 and thereafter on the first day of each calendar
quarter and on the Termination Date.
1.6 Origination Fee. In addition to interest on the Revolving Credit
Note and the Commitment Fee payable hereunder and to compensate the Bank for the
costs of the extension of credit hereunder, the Borrowers shall pay to Bank an
origination fee ("Origination Fee") in the amount of Twelve Thousand Five
Hundred Dollars ($12,500.00), payable upon the execution of this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
To induce Bank to enter into this Agreement and to make the loans
herein provided for, Borrower represents and warrants to Bank that:
2.1 Existence and Authority. Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and is duly qualified to do business, and is in good standing as a foreign
corporation, in all jurisdictions wherein its ownership of property or the
nature of its business requires such qualification and where the failure to be
so qualified would materially and adversely affect the financial condition or
operating condition of Borrower. Each Borrower has the right, power and
authority to own, and hold under lease, its properties and to carry on its
business as now being conducted.
2.2 Rights, Titles and Interests. Borrower has, and will maintain, good
and marketable rights, titles and interests in and to the Xxxxx, free and clear
of all material liens and encumbrances, except such liens and encumbrances, if
any, set forth in writings heretofore delivered to, and acknowledged in writing
to have been received by, Bank and which are acknowledged in writing to be
acceptable to the Bank. Borrower warrants that at its expense it will defend
generally the Xxxxx, against the claims and demands of all persons, corporations
and any other entities whatsoever. No material defaults have occurred under any
of the documents or instruments pursuant to which, or establishing that,
Borrower acquired interests in the Xxxxx which have not been cured or waived and
such documents and instruments are in full force and effect and they have not
been modified or amended.
2.3 Financial Statements. The financial statements described below in
this section, together with the notes and reports thereto, (copies of which have
been furnished to Bank), are complete and correct, have been prepared in
accordance with generally accepted accounting principles, practices and
procedures consistently applied and present fairly the financial position of the
Borrower as at the dates set forth below and the results of its
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operations for the periods set forth below, subject only to ordinary
and usual year end audit adjustments in the case of the statements described in
clause (ii) below:
(i) Balance sheet as of September 30, 1996, and the related statements
of income, changes in stockholder's equity and changes in cash flow for the
fiscal year ended on such date, prepared and certified by Xxxxx-Xxxxxxx, L.L.P.,
independent certified public accountants; and
(ii) Balance sheet as of June 30, 1997, the related statements of
income, changes stockholder's equity and changes in cash flow for the nine (9)
month period ended on such date, prepared and certified by the chief financial
officer of the Borrower.
Except as reflected or referred to in the above financial statements,
(a) the Borrower has no contingent or disputed liabilities or unrealized or
anticipated losses or commitments which in the aggregate are material; (b) Since
June 30, 1997, there has been no change in the condition, business or prospects,
financial or otherwise, of the Borrower as described on the financial statements
as filed with the United States Securities and Exchange Commission as of such
date and no change in the aggregate value of the property owned by the Borrower,
except changes in the ordinary course of business, none of which individually or
in the aggregate has been materially adverse.
2.4 Litigation. There is no litigation or proceeding of any kind
whatsoever pending, nor to the knowledge of Borrower threatened, nor any
judgment, order, writ, injunction, decree or award outstanding, which could
materially or adversely affect Borrower or the operation of its business, or the
Xxxxx, nor does the Borrower know or have reasonable grounds to know of any
basis for any such action or any governmental investigation or any claim
relating to the Borrower or the operation of its business or the Xxxxx. The
Borrower has complied with all material provisions of all agreements to which it
is a party or by which it is bound and is not in default under any of them or in
the payment of any of its material obligations.
2.5 Validity of Agreement and Revolving Credit Note. The execution and
delivery of this Agreement and the Revolving Credit Note and the documents and
instruments referred to herein and therein to be executed and/or delivered by
Borrower, as one or more may be amended, modified or supplemented (the "Loan
Documents"), the borrowings under the Loan Documents, the performance by the
Borrower of its obligations under the Loan Documents and the assignment of, and
the grant of the liens on and security interests in, the Borrower's various
rights, titles and interests, to Bank by the Loan Documents, do not, and will
not, contravene any provision of law, or of its articles of incorporation or
by-laws, or of any agreement, instrument or document or of any judicial,
arbitration or local, state or federal governmental requirement or restriction
to which Borrower is a party or by which it is bound, or result in the creation
or imposition of any lien or other encumbrance on any of the property of the
Borrower including the Xxxxx except the liens and security interests granted by
the Loan Documents; and any and all consents or approvals of any kind
whatsoever, including approvals and consents of any local, state or federal
governmental unit, commission, authority, agency or other body, required to be
obtained in connection therewith have been obtained and are in full force and
effect. This Agreement constitutes, and the other Loan Documents when duly
executed will constitute, legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms. Borrower is duly
authorized to execute and deliver this Agreement and the other Loan Documents;
all action necessary and proper to authorize the execution and delivery of the
Loan Documents has occurred; and Borrower is, and will
continue to be, duly authorized, and has, and shall continue to have,
the right, power and authority, to execute and deliver the Loan Documents and to
make the assignment and grant the liens and security interests pursuant to the
Loan Documents as well as to borrow under the Loan Documents and to perform all
of the other terms and conditions of the Loan Documents.
2.6 Permits. Borrower has obtained, or caused to be obtained, all
material permissions, licenses, easements, rights-of-way, leasehold and fee
interests and all local, state and federal governmental approvals,
authorizations, consents and permits as well as all other rights, titles and
interests necessary to the ownership, development and operation of the Xxxxx and
the conduct of its energy business, all of which are in full force and effect,
and which if not obtained, and kept in full force and effect, would materially
adversely affect Borrower or the operation of its energy business or the Xxxxx.
2.7 ERISA. The Pension Benefit Guaranty Corporation ("PBGC") has not
made a determination that, with respect to any Plan (as hereinafter defined) of
the Borrower, or any subsidiary or other affiliate of the Borrower, an event or
condition has occurred which constitutes grounds under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") for the termination of, or for
the appointment of a trustee to administer, any such plan. As used herein,
"plan" shall be defined as any employee benefit plan or other plan maintained
for employees of the Borrower, or any subsidiary or other affiliate of the
Borrower, covered by ERISA.
2.8 Regulation U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any advance hereunder will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.
2.9 Compliance with Law. Borrower has complied with, and is in
compliance with, all applicable local, state and federal laws, rules and
regulations relating to all of its activities including but not limited to the
operation of the gathering system and the Xxxxx and the offer and sale of
securities.
2.10 Taxes. All tax returns and reports of the Borrower required by law
to be filed have been duly filed, and all taxes, assessments, fees and other
governmental charges upon the Borrower or any of the property of the Borrower
and upon any of the other assets, income or franchises of the Borrower which are
due and payable have been paid or are being contested in good faith by
appropriate proceedings duly prosecuted by Borrower.
2.11 Environmental Compliance. Except as described on Exhibit V under
the heading "Environmental Matters:"
(a) no Well of the Borrower is currently on or has ever been on, or
is adjacent to any property which is on or has ever been on, any federal or
state list of Superfund Sites;
(b) no Hazardous Substances have been generated, transported,
and/or disposed of by the Borrower at a site which was, at the time of such
generation, transportation, and/or disposal, or has since become, a Superfund
Site;
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(c) except in accordance with applicable requirements of law or the
terms of a valid permit, license, certificate, or approval of the relevant
Governmental Authority, no material release of Hazardous Substances by the
Borrower or from, affecting, or related to any Well of the Borrower has
occurred; and
(d) no environmental complaint has been received by the Borrower.
SECTION 3. SECURITY.
Promptly upon request by the Bank at any time and from time to time
following the occurrence of an Event of Default (as defined in Section 8)
Borrower shall, to the fullest extent permitted by applicable law, execute and
deliver such security instruments and other documents as the Bank shall request,
in form and substance satisfactory to Bank, granting and conveying a lien or
security interest in favor of the Bank in and to any and all of the Xxxxx and
any or all general intangibles related to the Xxxxx to secure the payment of
principal of, and interest on, the Revolving Credit Note and all fees, costs,
expenses or other charges to be paid or reimbursed by Borrower under the Loan
Documents (the "Indebtedness") and the performance of the terms of the Loan
Documents. In addition, following the occurrence of an event of default and
notice to Borrower, Borrower shall execute such letters in lieu of transfer
orders and such division and/or transfer orders as are necessary or appropriate
to transfer and deliver to Bank proceeds from or attributable to any of the
Xxxxx.
SECTION 4. AFFIRMATIVE COVENANTS.
For so long as any Indebtedness remains unpaid, unless Bank otherwise
consents in writing, Borrower agrees that:
4.1 Protection of Rights. Titles and Interests. Borrower will take, or
cause to be taken, all reasonable steps necessary and proper (i) to protect and
enforce its rights, titles and interests in and to the Xxxxx and in connection
with its energy business and (ii) to comply with all duties, terms and
conditions undertaken or assumed by Borrower in connection with the Xxxxx and
its energy business.
4.2 Operation and Maintenance. Borrower will continuously operate, or
cause to be operated, the Xxxxx in a good and workmanlike manner and in
accordance with sound and approved industry practices. Borrower shall maintain,
or cause to be maintained, the Xxxxx in good condition and, shall make, or cause
to be made, all necessary renewals, repairs, replacements, additions,
betterments and improvements thereto.
4.3 Permits. Borrower will obtain and keep in full force and effect, or
shall cause to be obtained and kept in full force and effect, all permissions,
licenses, easements, rights-of-way, leasehold and fee interests and all local,
state and federal governmental approvals, authorizations, consents and permits
as well as all other rights, titles and interests necessary to the ownership,
development and operation of the Xxxxx and to the conduct of its energy
business.
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4.4 Compliance with Law. Borrower will comply with, or cause to be
complied with, all applicable local, state and federal laws, rules and
regulations relating to all of its activities including but not limited to the
operation of the Xxxxx.
4.5 Existence. Borrower shall do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence as a
corporation, its good standing under the laws of the State of Delaware and its
qualification to do business, and its good standing as a foreign corporation, in
all jurisdictions wherein its ownership of property or the nature of its
business requires such qualification, and where the failure to be so qualified
would materially and adversely affect the financial condition or operating
condition of Borrower.
4.6 Reports and Other Information. Within ninety (90) days after the
end of each fiscal quarter of each fiscal year of the Borrower, the Borrower
shall furnish to Bank such interim financial statements as Bank shall request
(consisting of at least a balance sheet as of the close of such quarter and a
profit and loss statement and an analysis of surplus for such quarter and for
the period from the beginning of the fiscal year to the close of such quarter),
which statements shall be in such detail as Bank shall require, shall show the
Borrower's financial condition at the close of such fiscal quarter and the
results of its operations for the period then ended and shall be prepared by the
chief financial officer of Borrower in accordance with generally accepted
accounting principles, practices and procedures consistently applied and
certified by such officer, subject only to ordinary and usual year end audit
adjustments.
Within one hundred twenty (120) days after the end of each of its
fiscal years, Borrower shall furnish to Bank a copy of its annual audited
financial statements prepared in conformity with generally accepted accounting
principles, practices and procedures consistently applied by Xxxxx-Xxxxxxx,
L.L.P., or other certified public accountants satisfactory to Bank, and
certified without qualification as to scope.
At any time and from time to time, Borrower will submit, or cause to be
submitted, to Bank promptly, in such form as Bank shall require, such other
information relating to the financial affairs of the Borrower, to the Xxxxx, to
the business of the Borrower or otherwise as Bank shall reasonably request
including but not limited to engineering reports and supporting data relating to
the Xxxxx and statements setting forth the quantity of gas and oil produced from
the Xxxxx, the price paid or to be paid for such gas and oil, the Borrower's
proceeds (showing in detail the computation whereby the Borrower's proceeds are
determined) and such other information as Bank may request which may include but
not be limited to a report prepared by Borrower showing the performance of each
Well on a monthly and cumulative basis as well as such information as is
customarily set forth in a meter statement.
4.7 Records and Access. Borrower shall keep, or cause to be kept, full
and complete books and records in which correct and accurate entries will be
made of all its business transactions and the Xxxxx and at any time and from
time to time shall give, or cause to be given, to the Bank and its
representatives full access during normal business hours to examine and copy all
of the Xxxxx and Borrower's books, contracts and records relating to the Xxxxx.
4.8 Payment of Taxes and Mechanics' Claims. Borrower will pay, or cause
to be paid, all taxes, assessments, license fees and other governmental charges
and all claims of mechanics and materialmen to which it or any of the Xxxxx
shall be subject, and all other
charges on or relating to the Xxxxx, before such charges and claims become
delinquent, except that no such charge or claim need be paid for so long as its
validity or amount shall be contested in good faith by appropriate proceedings
duly prosecuted and Borrower shall have set up in its books such reserves with
respect thereto as shall be dictated by sound accounting practices; provided,
however, that all such charges and claims shall be paid, subject to refund
proceedings, if failure to pay would adversely affect the rights or titles of
Borrower to any of the Xxxxx.
4.9 Insurance. Borrower will keep, or cause to be kept, with
financially sound and reputable insurers, such insurance with respect to its
business and property including the Xxxxx, in such amounts and insuring against
such risks, casualties and contingencies of such types (including but not
limited to insurance for loss or damage by fire and other hazards and insurance
for liability for damage to persons and property in connection with the Xxxxx
and the activities conducted thereon or relating thereto) as is customary for
persons, corporations and other entities of established reputations engaged in
the same or similar businesses as the Borrower and similarly situated (and with
respect to such insurance and upon request of Bank after the occurrence of any
default as defined in section 8 hereof, the Bank shall be named as mortgagee or
lender loss payee or additional insured as its interests may appear), and will
keep, or cause to be kept, such insurance as required by any applicable worker's
compensation laws, and will furnish, or cause to be furnished, certificates of
all such insurance to Bank before the initial borrowing hereunder and within one
hundred twenty (120) days after the end of each of its fiscal years. All
policies shall provide that they may not be altered or cancelled except on
thirty (30) days' prior written notice to Bank.
4.10 Duty to Plug. If and when any of the Xxxxx ceases producing gas
and oil in paying quantities or is of no further use, or Borrower or any other
person, corporation or other entity is required to do so under any agreement or
law, Borrower will plug and abandon, or cause to be plugged and abandoned, any
and all such Xxxxx in accordance with the local, state and/or federal laws then
in force and regulating the plugging of gas and oil xxxxx. Borrower further
consents and agrees that it will save harmless Bank, its successors and assigns,
of and from any loss, damage and penalty through failure, if any, to plug, or
cause to be plugged, such Well or Xxxxx as herein provided.
4.11 Expenses, Fees and Disbursements. Borrower shall pay, or cause to
be paid, all expenses, fees and disbursements incurred in connection with the
recordation, filing, satisfaction and termination of any mortgage, financing
statements and any other Loan Documents and any other instruments or documents
relating thereto and the fees, expenses and disbursements of Bank's counsel in
connection with this Agreement and the other Loan Documents, and any other
instruments or documents relating thereto, their preparation, administration and
enforcement as well as the fees, expenses and disbursements of others (including
but not limited to geologists and engineers) engaged by Bank to provide
information and advice in connection with this Agreement and the other Loan
Documents and any other instruments or documents relating thereto, their
preparation, administration and enforcement.
4.12 Assigned Payments. In connection with any amounts due to Borrower
which are assigned to Bank pursuant to any mortgage and/or security agreement
and/or any other Loan Document, following an Event of Default and upon notice to
Borrower and the payor thereof by Bank, such payments shall be made directly by
the payor thereof to Bank. Bank is, upon the occurrence of such an Event of
Default and giving notice to Borrower hereby authorized by Borrower to endorse
for and on Borrower's behalf and deposit all drafts and checks payable to
Borrower, and such authority shall continue while any Indebtedness is
outstanding. In the event that any such assigned amounts paid to Bank consists
of amounts belonging in whole or in part to any person, corporation or entity
other than Borrower, the Bank shall promptly deliver such amounts or parts
thereof to such persons, corporations or satisfactory to the Bank of such
amounts or parts thereof and the identity of such persons, corporations or other
entities.
4.13 Notification. Within ten (10) days after Borrower receives notice
of any future litigation or any future judicial or administrative proceedings
pending or threatened against it which might result in Borrower being liable for
the payment or performance of obligations in excess of Five Hundred Thousand
($500,000) Dollars with respect to any single such litigation or proceeding or
in excess of One Million Dollars ($1,000,000.00) Dollars in the aggregate for
all such litigations and proceedings, Borrower shall notify the Bank, or cause
the Bank to be notified, in writing of such litigation or proceeding.
4.14 Current Ratio. The ratio of (a) current assets of the Borrower to
(b) current liabilities of Borrower shall at all times exceed 2.0 to 1.0. This
ratio shall be determined quarterly, as of the end of each calendar quarter.
4.15 Tangible Net Worth. The tangible net worth of the Borrower (as
determined by Bank in accordance with generally accepted accounting principles)
shall at all times exceed Thirty-one Million Dollars ($31,000,000).
4.16 Cash Flow. The ratio of (a) Cash Flow, [defined as the sum of (i)
net income from operations during a period after provision for federal and state
income taxes, plus (ii) depletion, depreciation, amortization and other non-cash
charges for such period] to (b) the maturities of long-term debt coming due
within the calculation period, shall at all times exceed 1.5 to 1.0. This ratio
shall be determined quarterly, on a rolling 12-month basis, as of the end of
each calendar quarter during the term of the Loan.
4.17 Adjusted Debt to Tangible Net Worth. The ratio of (a) Adjusted
Debt (defined as total liabilities minus subordinated debt) to (b) Tangible Net
Worth (defined as net worth minus intangible assets) plus subordinated debt
shall at no time exceed 2.0 to 1.0. This ratio shall be determined quarterly,
during the term of the Loans.
4.18 Additional Documents. From time to time, at the Bank's request,
whether before or after any borrowings hereunder, the Borrower at its expense
will execute and deliver, or cause to be executed and delivered, to Bank such
instruments, papers and other documents and take, or cause to be taken, such
further action as Bank reasonably may require in connection with the
transactions contemplated hereby including the enforcement of the Loan
Documents.
SECTION 5. NEGATIVE COVENANTS.
For so long as any Indebtedness remains unpaid, Borrower agrees that it
will not, without the prior written consent of Bank:
5.1 Alienation. Sell, lease, transfer or otherwise dispose of or
alienate any of the Xxxxx, except the sale in the ordinary course of business of
gas and oil from the Xxxxx and except the sale, lease, transfer or other
disposition or alienation in the ordinary course of business of Xxxxx having
fair market value in the aggregate not in excess of One Hundred Thousand Dollars
($100,000) per year.
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5.2 Encumbrances. Permit, create, assume or incur any mortgage, pledge,
charge, security interest, lien or encumbrance of any kind upon any of the Xxxxx
(whether now owned or hereafter acquired) or commit any act or make any election
which will require it to assign any of the Xxxxx, except encumbrances (i)
created and granted in favor of the Bank to secure the Indebtedness, (ii)
relating to current taxes, assessments, license fees and other governmental
charges and claims of mechanics and materialmen not delinquent, or if delinquent
being contested in good faith as set forth in section 4.8 hereof, (iii) imposed
in the normal course of business of the Borrower in connection with obtaining
surety bonds and (iv) imposed in the normal course of business of the Borrower
on the equipment ("Equipment") of the Borrower hereafter acquired by it for its
field activities such as automobiles, pick-up trucks, 4-wheel drive vehicles,
tank trucks, service rigs, tractor trailers and bulldozers, provided that such
liens and encumbrances are imposed in connection with the financing of the
acquisition of the Equipment.
5.3 Debt. Create, assume, incur or permit to exist, any indebtedness
for money borrowed and used directly by Borrower's Energy Division, except (i)
the borrowings under the Loan Documents and (ii) the borrowings for the
acquisition of Equipment in an amount not to exceed One Hundred Thousand
($100,000) Dollars in the aggregate at any one time outstanding.
SECTION 6. BORROWING REQUIREMENTS.
Unless otherwise agreed to by Bank and subject to the performance by
Borrower of its other obligations under the Loan Documents, the Bank shall have
no obligation to advance any funds to Borrower until all legal matters incident
to the transactions contemplated by the Loan Documents are resolved in a manner
satisfactory to Bank's counsel and until Borrower shall have provided Bank with
the following:
A. The Revolving Credit Note and other Loan Documents duly executed and
all in form and substance satisfactory to Bank.
B. Evidence satisfactory to Bank authorizing the execution and delivery
by Borrower of this Agreement, the Note and the other Loan Documents.
C. Opinions of counsel for Borrower, satisfactory to Bank's counsel,
relating to such matters as the Bank may reasonably require, including opinions
that on the dates of delivery of such opinions and at the times the funds to be
lent pursuant to this Agreement are advanced (a) the representations set forth
in section 2.5 hereof (which representations shall be repeated at length in such
opinions) are accurate, and (b) to the best of the knowledge of Borrower's
counsel, the representations set forth in sections 2.1,2.2, 2.4, 2.6 and 2.9
hereof (which representations shall be repeated at length in such opinions) are
accurate.
D. Certificates executed by Borrower stating that no defaults have
occurred which are unremedied or unwaived under any agreement, lease, assignment
or other document or instrument by or through which Borrower has any rights,
titles or interests in connection with the Xxxxx.
E. A current certificate of good standing of the Borrower and a
certificate of incumbency for the Borrower.
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F. Such other documents and instruments, and evidence of the
performance by Borrower of such other obligations, as Bank may reasonably
request.
SECTION 7. DISBURSEMENT.
7.1 Procedure. Unless otherwise agreed to by Bank, Borrower shall give
Bank at least one (1) days' written notice requesting, and specifying the date,
the amount of each borrowing or reborrowing hereunder and not later than noon on
the date specified by Borrower in such written notice, Bank shall credit one or
more of the accounts (the "Accounts") maintained by Borrower at Bank in the
amount to be borrowed or reborrowed. Each borrowing or reborrowing by Borrower
shall be conditioned on the following: that at the time of such borrowing,
reborrowing or conversion the representations and warranties contained in this
Agreement are true and correct and no event of default set forth in section 8
hereof shall have occurred and be continuing and no event which, with giving of
notice or lapse of time or both would become such an event of default, shall
have occurred or shall have failed to occur and be continuing; and each such
borrowing and reborrowing as well as such conversion shall be deemed to be a
representation and warranty by the Borrower that the foregoing conditions exist
and upon the request of Bank the Borrower shall execute and deliver to Bank a
certificate as to the existence of the foregoing conditions.
7.2 Use of Proceeds. Borrower represents, warrants and agrees that all
funds lent or advanced pursuant to this Agreement or any other Loan Document
shall be used solely for the acquisition of businesses or assets related to oil
or natural gas drilling, producing, gathering and associated activities and
facilities.
7.3 Charging Account. Borrower agrees that Bank may charge and is
hereby authorized to charge the Accounts at Bank for payment of principal of, or
interest on, the Revolving Credit Note when due and payable and all other
charges set forth in the Loan Documents when due and payable including but not
limited to the Commitment Fee and the charges set forth in sections 4.11 and
10.3 hereof.
SECTION 8. DEFAULTS.
If one or more of the following events occur:
A. Borrower makes an assignment for the benefit of its creditors,
becomes insolvent or admits in writing its inability to pay its debts as they
become due; or Borrower files a voluntary petition in bankruptcy or files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation; or Borrower files an answer
admitting or not contesting the material allegations of any petition filed in
any action commenced against the Borrower in bankruptcy or seeking the relief
described in this subsection 8.A, or any such action shall not have been
dismissed within thirty (30) days after it is commenced; or the Borrower takes
any action looking to the dissolution or liquidation of Borrower; or the
Borrower applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or liquidator for itself or for any of its property or in the
absence of such application, consent or acquiescence such a trustee, receiver or
liquidator is appointed and is not discharged within ninety (90) days after
being appointed;
B. Any garnishment proceeding by attachment, levy or otherwise in an
amount greater than $500,000 is instituted against any deposit balance
maintained, or any property deposited, with the Bank by the Borrower.
This Agreement and the other Loan Documents shall immediately and
automatically be in default, any obligation Bank has under the Loan Documents or
otherwise to make any further advances to or for the benefit of Borrower shall
immediately and automatically terminate and the principal of, and interest on,
the Note and all other Indebtedness shall immediately be due and payable without
necessity of demand, presentment, protest, notice of dishonor, notice of default
or any other notice whatsoever.
If one or more of the following events occur:
C. Default by Borrower in the payment of principal of, or interest on,
the Note or in the payment of the Commitment Fee or in the payment of items of
expense or other charges to be paid by the Borrower pursuant to the Loan
Documents, including but not limited to the items set forth in sections 4.11
or 10.3 hereof, when due and payable, and continuance thereof for ten (10) days
thereafter or for ten (10) days after bills therefor are sent to Borrower,
whichever last occurs;
D. Any court shall render a final judgment or judgments against
Borrower in an aggregate amount greater than Five Hundred Thousand Dollars
($500,000,000) in excess of any insurance protecting against the liability on
which such judgment or judgments are based and such judgment or judgments shall
not be satisfactorily stayed, discharged, vacated or set aside within ninety
(90)days after the entry thereof, or except as set forth in subsection 8.B
above, any property of Borrower shall be liened or attached under a claim or
claims in an aggregate amount greater than Five Hundred Thousand Dollars
($500,000,000) in excess of any insurance protecting against the liability on
which such lien or attachment is based and such lien or attachment shall not be
released or provided for to the satisfaction of Bank within ninety (90) days
after the property is liened or attached;
E. Borrower shall fail to take reasonable corrective measures within
thirty (30) days after notice to Borrower with respect to any litigation or any
judicial or administrative proceedings pending or threatened against Borrower,
the outcome of which, in the reasonable judgment of Bank, would materially and
adversely affect the financial condition of Borrower or the Xxxxx;
F. The PBGC shall make a determination that there has occurred an event
or condition which constitutes grounds under ERISA for the termination of, or
for the appointment of a trustee to administer, any Plan;
G. Default in the performance of any material agreement, covenant or
obligation of Borrower set forth in this Agreement or any other Loan Document
and not constituting a specific event of default set forth in this section 8,
and continuance thereof for thirty (30) days, provided, however, that in the
event that such default cannot be cured within such thirty (30) day period
Borrower shall not be deemed to be in default hereunder so long as Borrower
undertakes and diligently pursues all action necessary to cure such default
within a reasonable time;
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H. Default in the performance of any agreement, covenant or obligation
of Borrower in any agreement between Bank and Borrower in addition to any Loan
Document, and continuance thereof for more than the permitted period of grace,
if any;
I. Except as set forth in subsections 8.C, 8.G and 8.H hereof, default
in the payment or performance of any material obligation for borrowed money, for
which the Borrower is liable (directly, by assumption, as guarantor, or
otherwise) or in the payment or performance of any material obligation secured
by any mortgage, pledge, charge, security interest, lien, or other encumbrance
with respect to any property of the Borrower, and continuance thereof for more
than the permitted period of grace, if any;
J. Any representation or warranty made by Borrower herein or in any
other Loan Document is untrue in any material respect or any certificate,
schedule, statement, report, notice or writing furnished or made to Bank in
connection with the transactions contemplated by the Loan Documents is untrue in
any material respect on the date as of which the facts set forth therein are
stated or certified; or
K. The Borrower shall fail to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence as a
corporation, its good standing under the laws of the State of Delaware, and its
qualification to do business, and its good standing as a foreign corporation, in
all jurisdictions wherein its ownership of property or the nature of its
business requires such qualification and where failure to be so qualified would
materially and adversely affect the financial condition or operating condition
of Borrower.
Then Bank, at its option, may immediately declare this Agreement and/or
the other Loan Documents in default, may terminate any obligation it has under
the Loan Documents or otherwise to make any advance to or for the benefit of
Borrower and/or may declare the principal of, and interest on, the Revolving
Credit Note and/or all other Indebtedness immediately due and payable, whereupon
the Indebtedness shall immediately become due and payable without necessity of
demand, presentment, protest, notice of dishonor, notice of default or any other
notice whatsoever.
SECTION 9. REMEDIES.
Bank shall be entitled at its option to exercise each and every remedy
accorded it by law and/or specifically set forth in the Loan Documents, which
remedies are specifically incorporated herein by reference. Such remedies may be
asserted concurrently, cumulatively, successively or independently from time to
time so long as any part of the Indebtedness remains unpaid.
SECTION 10. MISCELLANEOUS.
10.1 Waiver and Modification. No waiver by Bank of any default shall
operate as a waiver of any other default or of the same default on a future
occasion. No failure to exercise, and no delay in exercising, on the part of
Bank, any power, remedy or right shall operate as a waiver thereof, nor shall
any single or partial exercise of any power, remedy or right preclude other or
further exercise thereof or the exercise of any other power, remedy or right.
The terms, conditions and covenants of this Agreement and the other Loan
Documents, including the Note, may only be modified or waived by a written
document executed by Borrower and Bank.
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10.2 Notices. All notices or other correspondence required or made
necessary by the terms of this Agreement and the other Loan Documents shall be
in writing and shall be considered as having been given to each party if mailed
by registered or certified mail, postage prepaid, to the respective addresses as
follows:
(a) To Borrower:
Resource America, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
(b) To Bank:
Key Bank, N.A.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Each party shall have the right to change its address at any time, and
from time to time, by giving written notice thereof to the other party.
10.3 Certain Taxes. Borrower agrees to pay, and save Bank harmless
from, all liability for any federal or state documentary stamp or other tax
liability (other than the tax liabilities determined with reference to the
income or revenue of the Bank) together with any interest or penalty, which is
payable or determined to be payable with respect to the execution or delivery of
this Agreement or any other Loan Document which obligation of the Borrower shall
survive the termination of this Agreement.
10.4 Right to Cure. In the event that Borrower shall fail for any
reason to pay any fee, cost, expense or other charge to be paid or reimbursed by
Borrower, Bank shall have the right but not the duty to make such payment and if
Bank makes such payment the amount thereof shall be added to the balance of the
Indebtedness shall be payable on demand and shall bear interest at the rate
shown in the Revolving Credit Note until paid.
10.5 Venue and Jurisdiction. The parties hereto agree that any action
or proceeding arising out of or relating to the transactions contemplated by the
Loan Documents may be commenced in the Court of Common Pleas of Xxxxx County,
Ohio and each party agrees that a summons and complaint commencing an action or
proceedings in such court shall be properly served and shall confer personal
jurisdiction if served personally or by certified mail to it at its address
designated pursuant hereto, or as otherwise provided under the laws of the State
of Ohio.
10.6 Applicable Law. This Agreement and the other Loan Documents shall
be contracts made under and governed by the laws of the State of Ohio.
10.7 Severabi1ity. In the event that any term or provision of this
Agreement or any other Loan Document, including the Note and the Mortgage, is
lawfully held or declared to be invalid, illegal or unenforceable, it shall be
deemed deleted to the extent necessary under the applicable law and the validity
of the other terms and provisions shall not be affected thereby.
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10.8 Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the Borrower and Bank and their respective
successors and assigns, and shall inure to the benefit of Borrower, Bank and the
successors and assigns of Bank (except that Borrower shall have no right to
assign, voluntarily or by operation of law, any of its rights hereunder or under
any other Loan Document without Bank's prior written consent, and provided
further that nothing herein is intended by any party hereto to confer any rights
upon any third party as a beneficiary hereof).
10.9 Nature and Survival of Representations. All statements contained
in any certificate or other document or instrument of any kind whatsoever
delivered by or on behalf of Borrower pursuant hereto or any other Loan
Document, or in connection with the transactions contemplated hereby or thereby,
shall be deemed representations and warranties made by the Borrower in this
Agreement or other Loan Document, or pursuant hereto or thereto, and, together
with all representations and warranties contained herein or in any other Loan
Document, shall survive the execution and delivery thereof and of this Agreement
and any other Loan Document, the making of any loans under the Loan Documents,
and the making of any investigation made at any time by or on behalf of Bank.
10.10 Number and Gender. Whenever required by the context of this
Agreement or any other Loan Document the singular shall include the plural, and
vice-versa; and the masculine and feminine genders shall include the neuter
gender, and vice versa.
10.11 Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
WITNESS the due execution hereof the day and year first above written.
RESOURCE AMERICA, INC.
By:__________________________
Its:_________________________
KEYBANK, N.A.
By:__________________________
Its:_________________________
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