SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "AMENDMENT") is dated
as of September 10, 2004, 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 PIPELINE PARTNERS GP, LLC, a Delaware limited liability
company ("ATLAS PIPELINE"), 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 Pipeline, 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"), 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
A. The parties hereto are parties to that certain Credit Agreement
dated as of March 12, 2004, as amended by that certain First Amendment to Credit
Agreement dated as of July 10, 2004 (as renewed, extended, amended, or restated
from time to time, the "CREDIT AGREEMENT").
B. Borrower has requested that Administrative Agent, Issuing Bank and
Lenders amend the Credit 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 Credit Agreement shall have the same meaning herein as therein,
all of such terms and their definitions being incorporated herein by reference.
Unless otherwise indicated herein, all capitalized and undefined terms used
herein shall have the same meanings as set forth in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the condition
precedent set forth in Section 3 hereof, the Credit Agreement is hereby amended
as follows:
(a) The definition of "Borrowing Base Period" in SECTION 1.02
of the Credit Agreement shall read as follows:
BORROWING BASE PERIOD shall mean (i) the period from the
Closing Date until September 10, 2004, (ii) the period from
September 10, 2004 until December 14, 2004, and (iii) each
six-month period commencing on each December 15 and June 15
thereafter.
(b) SECTION 8.07(A) of the Credit Agreement is hereby amended
to read as follows:
Not less than 30 days prior to each Scheduled Borrowing Base
Redetermination Date, commencing with the Scheduled Borrowing Base
Redetermination to occur on or around September 10, 2004, the Borrower
shall furnish to the Administrative Agent and the Lenders a Reserve
Report. The Reserve Report of each year delivered in connection with
the December 15 Scheduled Borrowing Base Redetermination, commencing
December 15, 2004, shall be prepared by certified independent petroleum
engineers or other independent petroleum consultant(s) acceptable to
the Administrative Agent. The Reserve Report delivered in connection
with the September 10, 2004 Scheduled Borrowing Base Redetermination
and for each year delivered in connection with the June 15 Scheduled
Borrowing Base Redetermination, commencing June 15, 2005, shall be
prepared by or under the supervision of the chief engineer of the
Borrower and a Responsible Officer shall certify such Reserve Report to
be true and accurate and to have been prepared in accordance with the
procedures used in the immediately preceding December 15 Scheduled
Borrowing Base Redetermination Reserve Report.
SECTION 3. REDETERMINATION OF BORROWING BASE. As of the Amendment
Effective Date (as hereinafter defined), the Borrowing Base shall be $75,000,000
which amount is comprised of the APL Collateral Value determined to be
$10,000,000, and the Oil and Gas Properties Collateral Value, determined to by
$65,000,000.
SECTION 4. AMENDMENT EFFECTIVE DATE. This Amendment shall be binding
upon all parties to the Credit Agreement (the "AMENDMENT EFFECTIVE DATE") upon:
(a) receipt of sufficient counterparts of this Amendment
executed and delivered to Administrative Agent by Borrower,
Administrative Agent, and each Lender; and
(b) receipt of $37,500 by Administrative Agent for the ratable
benefit of the Lenders of the fee attributable to the marginal increase
in the Borrowing Base (0.375% of $10,000,000).
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.
(b) The Credit Agreement, as amended by this Amendment, 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 organizational documents of any Obligor, or
any contract, agreement, instrument or
2
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 Credit Agreement and this Amendment.
(d) The 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 Credit 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 5 of this Amendment is intended to
amend any of the representations or warranties contained in the Credit
Agreement or of the Loan Documents to which any Obligor is a party.
SECTION 6. REFERENCE TO AND EFFECT ON THE AGREEMENT.
(a) On and after the Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein, " or words of like import shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended by this Amendment, the
Credit 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,
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 Credit 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 Credit 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 under the Security Instruments is unimpaired by this
Amendment.
SECTION 9. DISCLOSURE OF CLAIMS. As additional consideration to the
execution, delivery, and performance of this
3
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 GUARANTY AGREEMENTS, SECURITY INTEREST.
(a) Each of the undersigned Guarantors hereby consents to and
accepts the terms and conditions of this Amendment and the transactions
contemplated thereby, agrees to be bound by the terms and conditions
thereof, and ratifies and confirms that each Guaranty Agreement and
each of the other Loan Documents to which it is a party is, and shall
remain, in full force and effect after giving effect to this Amendment.
(b) 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 Instruments 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.
SECTION 14. NO ORAL AGREEMENTS. THE CREDIT 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.]
4
In Witness Whereof, the parties have executed this Amendment to Credit
Agreement the day and year first above written.
BORROWER:
Address for Notice: ATLAS AMERICA, INC.,
a Delaware corporation
Atlas America, Inc.
c/o Resource America, Inc. By: /s/ Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx, 00xx Floor -----------------------
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 Name: Xxxxxxx X. Xxxxxxx
Attention: Xxxxxx Xxxxxxx Title: Executive Vice President
Fax No.: 000.000.0000 & Secretary
E-mail:xxxxxxxx@xxxxxxxxxxxxxxx.xxx
GUARANTORS:
AIC, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
ATLAS AMERICA, INC.,
a Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Secretary
ATLAS ENERGY CORPORATION,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Secretary
ATLAS ENERGY GROUP, INC.,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Secretary
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT
ATLAS ENERGY HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ATLAS NOBLE CORP.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
ATLAS PIPELINE PARTNERS GP, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Secretary
REI-NY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Asst.
Secretary
RESOURCE AMERICA, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and CFO
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT
RESOURCE ENERGY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
VIKING RESOURCES CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Secretary
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT
LENDER, ADMINISTRATIVE AGENT AND
ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
Individually, Administrative Agent and
Issuing Bank
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
Lending Office for Base Rate Loans and
LIBOR Loans and Address for Notices:
Wachovia Bank, National Association
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxxx
LENDERS:
BANK OF OKLAHOMA, N.A.
By: _________________________
Name: _________________________
Title: _________________________
U.S. BANK, NATIONAL ASSOCIATION
By: _________________________
Name: _________________________
Title: _________________________
COMPASS BANK
By: _________________________
Name: _________________________
Title: _________________________
TEXAS CAPITAL BANK, N.A.
By: _________________________
Name: _________________________
Title: _________________________
