FIRST AMENDMENT TO
LOAN AGREEMENT
Among
ATLAS AMERICA, INC.
RESOURCE ENERGY, INC.
VIKING RESOURCES CORPORATION
as the Borrowers
PNC BANK, NATIONAL ASSOCIATION
as the Agent and the Issuing Bank
FIRST UNION NATIONAL BANK
as the Syndication Agent
and
THE BANKS PARTY HERETO
Dated as of January 24, 2000
FIRST AMENDMENT TO
LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the "First Amendment") made as
of January 24, 2000, to that certain Loan Agreement dated as of September 28,
1999 (the Loan Agreement, together with the exhibits and schedules thereto, the
"Existing Agreement") among ATLAS AMERICA, INC., a Pennsylvania corporation
("Atlas"), RESOURCE ENERGY, INC., a Delaware corporation ("REI") and VIKING
RESOURCES CORPORATION, a Pennsylvania corporation ("Viking"; Atlas, REI and
Viking, each, individually a "Borrower" and collectively the "Borrowers"), the
financial institutions listed on the signature pages thereto (collectively, the
"Banks", and each individually, a "Bank"), PNC BANK, NATIONAL ASSOCIATION as the
issuer of the Letters of Credit (in such capacity, the "Issuing Bank") and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as Agent for the Banks (in such
capacity, the "Agent") and FIRST UNION NATIONAL BANK, in its capacity as
Syndication Agent.
WITNESSETH:
WHEREAS, the Borrowers, the Banks, and the Agent entered into the
Existing Agreement pursuant to which the Banks made certain financial
accommodations available to the Borrowers, including a revolving credit facility
in an aggregate principal amount not to exceed $45,000,000, with a subfacility
for the issuance of letters of credit in an aggregate principal amount not to
exceed $14,000,000, subject to certain individual and aggregate borrowing
limitations as more specifically described therein; and
WHEREAS, to induce the Banks to enter into the Existing Agreement and
to make available to the Borrowers the credit accommodations thereunder, the
Borrowers executed and delivered (or caused certain direct or indirect
Subsidiaries of the Borrowers to execute and deliver) to the Agent (for the
benefit of the Banks) certain mortgages, security agreements and other Security
Documents; and
WHEREAS, the Borrowers and certain of their direct and indirect
subsidiaries intend to enter into various agreements and to execute a number of
actions designed to convey certain of their natural gas gathering system assets
(as more fully defined below, the "Pipeline Assets") to a limited partnership
(as more fully defined below, the "Atlas Pipeline LP") in consideration of (i)
the issuance and transfer of certain ownership interests in the general partner
of the Atlas Pipeline LP, (ii) the assumption and repayment of certain
indebtedness of the Borrowers to the Banks, and (iii) the payment of certain
amounts to the Borrowers (all of the foregoing, the "MLP Transactions"); and
WHEREAS, the Borrowers have requested that the Banks consent to the MLP
Transactions, and to (i) waive certain provisions of the Existing Agreement,
(ii) amend certain provisions of the Existing Agreement, and (iii) agree to
release the Liens on the Pipeline Assets granted to or created in favor of the
Agent (for the benefit of the Banks) pursuant to the Security Documents, all as
more particularly set forth below.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, and with the intent to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO EXISTING AGREEMENT
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Section 1.1 Amended Definitions. On and after the First Amendment
Effective Date, Section 1.1 of the Existing Agreement is hereby amended such
that the following definitions shall be amended and restated in their entirety:
"Letter(s) of Credit" means any standby letter(s) of
credit as to which the account party, the Issuing Bank and the
beneficiary contemplate that the beneficiary will receive a direct
payment from the account party and that the beneficiary shall draw upon
the Letter of Credit only if the account party fails to honor its
obligation to the beneficiary, including, but not limited to, standby
letters of credit issued by the Issuing Bank in accordance with Section
2.9 hereof, the Existing Letters of Credit and the MLP Letter of
Credit.
"Partnership" and "Partnerships" shall have the
meaning ascribed to each term in Section 2.3, and shall specifically
exclude Atlas Pipeline LP and Atlas Pipeline Operating Partnership,
L.P.
"Termination Date" shall mean June 1, 2003, or, if
such day is not a Business Day, the Business Day next preceding such
date.
Section 1.2 Additional Definitions. On and after the First Amendment
Effective Date, Section 1.1 of the Existing Agreement is hereby amended such
that the following definitions shall be added thereto in the appropriate
alphabetical order:
"Atlas Pipeline LP" shall mean Atlas Pipeline Partners, L.P.,
a Delaware limited partnership.
"Construction Financing Commitment" shall mean the commitments
of Atlas and REI pursuant to the Omnibus Agreement to provide
construction financing to Atlas Pipeline LP through the purchase from
time to time of its common units, in an amount not to exceed $1,500,000
in the aggregate during each 12 month period commencing on the date of
the Omnibus Agreement and on each of the first four anniversaries of
such date.
"Distribution Agreement" shall mean that certain Distribution
Support Agreement to be entered into by and among Atlas Pipeline LP and
Atlas Pipeline Partners GP, LLC, in substantially the form attached to
the Form S-1 Registration Statement No. 333-85193, as amended, filed
with respect to the public offering of the common units of Atlas
Pipeline LP, as such agreement may be amended, extended, renewed or
replaced from time to time.
"First Amendment Effective Date" shall mean January 24, 2000.
"Master Natural Gas Agreement" shall mean that certain Master
Natural Gas Gathering Agreement to be entered into by and among the
Borrowers and certain Restricted Subsidiaries, Atlas Pipeline LP and
Atlas Pipeline Operating Partnership, L.P. relating to the
transportation of gas and oil produced by the Borrowers and the
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Restricted Subsidiaries and in substantially the form attached to the
Form S-1 Registration Statement No. 333-85193, as amended, filed with
respect to the public offering of the common units of Atlas Pipeline
LP, as such agreement may be amended, extended, renewed or replaced
from time to time.
"MLP Letter of Credit" shall mean that certain standby letter
of credit issued by the Issuing Bank for the account of Atlas Pipeline
Partners GP, LLC and for the benefit of Atlas Pipeline LP in an initial
stated amount not to exceed $8,694,000, and having an expiration date
of June 1, 2003, together with all extensions, renewals and amendments
thereto and thereof.
"MLP Transactions" shall mean, collectively (i) the formation,
mergers, divisions, contributions and other transfers of interests in
certain corporations, limited liability companies and partnerships,
(ii) the conveyances of Pipeline Assets, (iii) the sale to the public
of common units in Atlas Pipeline LP, (iv) the disposition of the
proceeds of such sale, and (v) certain other actions, all as more fully
described on Schedule 1 to the First Amendment.
"Omnibus Agreement" shall mean that certain Omnibus Agreement
to be entered into by and among the Borrowers, Atlas Pipeline LP and
Atlas Pipeline Operating Partnership, L.P., in substantially the form
attached to the Form S-1 Registration Statement No. 333-85193, as
amended, filed with respect to the public offering of the common units
of Atlas Pipeline LP, as such agreement may be amended, extended,
renewed or replaced from time to time.
"Pipeline Assets" shall mean those assets comprising the
natural gas gathering system to be conveyed by the Borrowers and
certain Restricted Subsidiaries to Atlas Pipeline LP through Atlas
Pipeline Operating Partnership, L.P. as such assets are further
described on Schedule 2 to the First Amendment.
Section 1.3 Deleted Definition. On and after the First Amendment
Effective Date, Section 1.1 of the Existing Agreement is amended by deleting the
following defined term:
Individual Collateral Value Reduction Amount
Section 1.4 Amendments to Section 2.2. On and after the First Amendment
Effective Date, Section 2.2 of the Existing Agreement is amended as follows:
(i) Section 2.2 of the Existing Agreement is hereby
amended to delete therefrom each reference to the "Individual
Collateral Value Reduction Amounts".
(ii) Section 2.2 of the Existing Agreement is hereby
amended to delete therefrom clause (iii) of Subsection 2.2(d).
Section 1.5 Amendments to Section 2.9 . On and after the First
Amendment Effective Date, Section 2.9 of the Existing Agreement is amended as
follows:
(i) Clause (i) of Subsection 2.9(a) of the Existing Agreement
is hereby amended and restated to read as follows:
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(i) With the exception of the MLP Letter of Credit,
no Letter of Credit shall be issued hereunder which has an expiry date
later than the earlier of (x) one (1) year from the date of issuance
thereof or (y) five (5) Business Days prior to the Termination Date;
provided, however, that any Letter of Credit with a one (1) year
maturity may provide for the renewal thereof for an additional one (1)
year period, which shall in no event extend beyond five (5) Business
Days prior to the Termination Date. The MLP Letter of Credit shall not
have an expiry date later than the Termination Date.
(ii) Clause (iii) of Subsection 2.9(a) of the Existing
Agreement is hereby amended to delete therefrom the reference to "Fourteen
Million ($14,000,000) Dollars" contained therein, and to substitute therefor a
reference to "Ten Million ($10,000,000) Dollars".
Section 1.6 Amendment to Section 4.1. On and after the First Amendment
Effective Date, Section 4.1 of the Existing Agreement is amended to insert at
the end thereof the following new paragraphs F, G and H:
F. One or more Pledge Agreements (or amendments
thereto) in form and substance satisfactory to the Banks, which shall
assign to Agent, and grant to Agent, on behalf of the Banks, a lien on
and security interest in, all right, title and interest of the
Borrowers and the Restricted Subsidiaries in and to (i) the membership
units of Atlas Pipeline Partners GP, LLC, and (ii) the common units of
Atlas Pipeline LP, together, with undated stock powers executed in
blank.
G. One or more collateral assignments of contract
rights in form and substance satisfactory to the Banks, which shall
collaterally assign to Agent, and grant to Agent on behalf of the
Banks, a security interest in and to all right, title, interest of the
Borrowers and the Restricted Subsidiaries pursuant to the Master
Natural Gas Agreement, together with the written consent of Atlas
Pipeline LP to such collateral assignment.
H. One or more Pledge Agreements in form and
substance satisfactory to the Banks, which shall assign to Agent, and
grant to Agent, on behalf of the Banks, a lien on and security interest
in, all right, title and interest of Atlas Pipeline Partners GP, LLC in
and to common units (subordinated or otherwise) of Atlas Pipeline LP,
together with undated stock powers executed in blank.
Section 1.7 Amendment to Section 5.17. On and after the First Amendment
Effective Date, Section 5.17 of the Existing Agreement is amended to amend and
restate clause (ii) of the second paragraph thereof, which sets forth the
definition of the term "EBITDA", to read as follows:
(ii) the term "EBITDA" shall mean the sum (determined
in accordance with GAAP) of the Borrowers' Combined net income plus
interest expense plus tax expense plus depreciation plus amortization
plus other noncash charges to income minus noncash credits to income
minus any equity in earnings attributable to Atlas Pipeline LP plus any
distributions received by the Borrowers from Atlas Pipeline LP;
provided, however, that for the purposes of this Section 5.17 only, any
of the foregoing items earned from or expensed with respect to the
Pipeline Assets shall be excluded from the calculation of EBITDA.
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Section 1.8 Amendment to Section 5.18. On and after the First Amendment
Effective Date, Section 5.18 of the Existing Agreement is hereby amended and
restated to read as follows:
5.18 Fixed Charge Coverage Ratio. The EBITDA of the
Borrowers on a Combined basis (calculated for the four most recently
completed fiscal quarters) divided by the sum of (i) the interest
expense of Borrowers on a Combined basis (calculated for the four most
recently completed fiscal quarters) plus (ii) Current Maturities of
Long Term Debt of Borrowers on a Combined basis plus (iii) the
aggregate amount of cash payments of contingent consideration made by
or on behalf of Viking pursuant to Section 3.3c of the Acquisition
Agreement during the four most recently completed fiscal quarters plus
(iv) any payments made by the Borrowers to purchase common units in
Atlas Pipeline LP pursuant to the Construction Financing Commitment,
must not be less than the following ratios for the fiscal periods
ending on the following dates (inclusive):
Fiscal Periods Ending: Minimum Ratio:
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9/30/99 through 6/30/00 1.50 to 1.00
9/30/01 through 12/31/01 2.00 to 1.00
3/31/02 and each fiscal 2.50 to 1.00
period ending thereafter
For the purposes of this Section 4.18, the term
"Current Maturities of Long Term Debt" shall mean that portion of the
Borrowers' total indebtedness for money borrowed or credit advanced
(other than (i) trade credit incurred in the ordinary course of
business and (ii) indebtedness to the Banks under the Revolving
Credit), however evidenced, which had a scheduled maturity during the
preceding four fiscal quarters.
Section 1.9 Amendment to Section 5.19. On and after the First Amendment
Effective Date, Section 5.19 of the Existing Agreement is hereby amended and
restated to read as follows:
5.19 Minimum Combined Tangible Net Worth. The
Combined Tangible Net Worth of the Borrowers shall at all times exceed
the sum of (i) eighty-five (85%) percent of the Combined Tangible Net
Worth of the Borrowers as of December 31, 1999 (provided that the
Combined Tangible Net Worth of the Borrowers on such date shall not be
less than $27,000,000), plus (ii) an amount equal to fifty percent
(50%) of the cumulative positive Combined net income of the Borrowers
earned after December 31, 1999, plus (iii) any gain recognized by the
Borrowers on the sale of the Pipeline Assets minus (iv) the amount of
any permitted distribution made by the Borrowers to Resource America,
Inc. from the proceeds of the sale of the Pipeline Assets.
Section 1.10 Amendment to Section 6.3. On and after the First Amendment
Effective Date, Section 6.3 of the Existing Agreement is amended to insert at
the end thereof the following language: "and (v) except for the obligations of
Atlas Pipeline Partners GP, LLC to Atlas Pipeline LP under the Distribution
Support Agreement."
Section 1.11 Amendment to Section 6.4. On and after the First Amendment
Effective Date, Section 6.4 of the Existing Agreement is amended to insert at
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the end thereof the following language: "and (iv) the obligations to make
certain payments under the Master Natural Gas Agreement, the Distribution
Support Agreement and the Omnibus Agreement, including without limitation the
Construction Financing Commitment."
Section 1.12 Amendment to Section 6.5. On and after the First Amendment
Effective Date, Section 6.5 of the Existing Agreement is amended to insert at
the end thereof the following language: ", (ix) purchases of common units of
Atlas Pipeline LP pursuant to the Construction Financing Commitment, provided
that such common units be pledged to the Agent (for the benefit of the Banks) in
accordance with Section 4.1F hereof, and (x) payments by or on behalf of Atlas
Pipeline Partners GP, LLC to Atlas Pipeline LP under the Distribution Support
Agreement."
Section 1.13 Amendment to Section 6.6(b). On and after the First
Amendment Effective Date, Section 6.6(b) of the Existing Agreement is amended to
insert at the end thereof the following language: "and perform certain
administrative and management services on behalf of Atlas Pipeline LP and Atlas
Pipeline Operating Partnership, L.P. pursuant to the Omnibus Agreement."
Section 1.14 Amendment to Section 8.2. On and after the First Amendment
Effective Date, Section 8.2 of the Existing Agreement is amended to insert at
the end of the first sentence thereof the following language: ", (vii) for the
purpose of purchasing common units of Atlas Pipeline LP pursuant to the
Construction Financing Commitment, provided that at the time of purchase such
common units do not constitute margin stock within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System, and (viii) with respect
to the issuance of the MLP Letter of Credit only, to secure the obligations of
Atlas Pipeline Partners GP, LLC under the Distribution Support Agreement."
Section 1.15 Amendment to Section 9. On and after the First Amendment
Effective Date, Section 9 of the Existing Agreement is amended to insert after
Paragraph M thereof the following new Paragraphs N and O:
N. Any default occurs under the Distribution
Agreement, the Master Gas Gathering Agreement or the Omnibus Agreement
which gives any party thereto the right to terminate such agreement, or
any such agreement is amended, modified or terminated without the prior
written consent of the Banks;
O. Atlas Pipeline LP or Atlas Pipeline Operating
Partnership, L.P. becomes insolvent, becomes the subject of any action
in bankruptcy, dissolves or terminates its existence, or Atlas Pipeline
Partners GP, LLC withdraws or is removed as the general partner of
either such partnership, without the prior written consent of the
Banks.
Section 1.16 Amendments re: Exhibits, Schedules and Annex. On and after
the First Amendment Effective Date, the Existing Agreement is further amended to
delete therefrom Schedule 3.2 thereto, and to substitute therefor Schedule 3.2
attached hereto and made a part hereof.
Section 1.17 No Other Amendments or Waivers. The amendments to the
Existing Agreement set forth in Sections 1.1 through 1.16 inclusive above do not
either implicitly or explicitly alter, waive or amend, except as expressly
provided in this First Amendment, the provisions of the Existing Agreement. The
amendments set forth in Sections 1.1 through 1.16 inclusive hereof do not waive,
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now or in the future, compliance with any other covenant, term or condition to
be performed or complied with nor do they impair any rights or remedies of the
Banks or the Agent under the Existing Agreement with respect to any such
violation. Nothing in this First Amendment shall be deemed or construed to be a
waiver or release of, or a limitation upon, the Agent's or any Bank's exercise
of any of its rights and remedies under the Existing Agreement and the other
Loan Documents, whether arising as a consequence of any Events of Default which
may now exist or otherwise, and all such rights and remedies are hereby
expressly reserved.
ARTICLE II
CERTAIN CONSENTS, WAIVERS AND
AGREEMENTS REGARDING THE MLP TRANSACTIONS
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Section 2.1 Consents and Waivers Regarding the MLP Transactions.
Subject to the terms and conditions of this First Amendment, the Banks hereby
(i) consent to the consummation and completion of the MLP Transactions, and (ii)
waive any violation of Sections 5.7, 6.1, 6.5, 6.7 or 6.8 of the Agreement which
would otherwise be caused by the consummation or completion of the MLP
Transactions. The foregoing consent and waiver is conditioned upon the
completion of the public offering of the common units of Atlas Pipeline LP and
the satisfaction of the other conditions precedent to the release of Liens by
the Banks in connection therewith set forth in Section 2.2 of this First
Amendment within thirty (30) days of the First Amendment Effective Date; in the
event that these conditions subsequent to the foregoing consent and waiver is
not satisfied, then the Borrowers shall take, or cause to be taken, such actions
as the Banks may require, which may include, but shall not be limited to,
unwinding (to the extent practicable) the MLP Transactions or delivering, or
causing to be delivered, to the Banks additional or amended Security Documents
or other further assurances. The assumption by any third party of any portion of
the Obligations in connection with or pursuant to the MLP Transactions shall in
no way release or relieve the Borrowers or Restricted Subsidiaries from
liability to the Banks with respect to such portion of the Obligations.
Section 2.2 Conditions Precedent to Release of Liens on Pipeline
Assets. Subject to the terms and conditions of this First Amendment, the Banks
hereby agree to release their Liens on the Pipeline Assets. Each of the
following shall be a condition precedent to the release by the Banks of their
Liens upon the Pipeline Assets and to the delivery by the Agent of appropriate
documentation to evidence such release, including partial releases of mortgages
and Uniform Commercial Code Form UCC-3 Financing Statement partial releases:
(i) The conditions precedent to the effectiveness of this
First Amendment set forth in Article IV hereof shall be satisfied.
(ii) The Agent shall have received (for the ratable benefit of
the Banks) a payment in the amount necessary to reduce the then current
Aggregate Outstandings (after giving effect to the issuance of the MLP
Letter of Credit) to the Aggregate Collateral Value as set forth in
Section 2.3 below.
(iii) The Banks shall have received satisfactory evidence that
the MLP Transactions have been completed, and the Distribution Support
Agreement, the Master Gas Gathering Agreement and the Omnibus Agreement
have been executed by the respective parties thereto.
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(iv) The Agent shall have received true and correct copies of
the executed Distribution Support Agreement, the Master Gas Gathering
Agreement and the Omnibus Agreement.
(v) The Agent shall have received a certification from each
Borrower that its articles or certificate of incorporation and its
respective bylaws which were previously delivered to the Agent continue
to remain complete and correct and in full force and have not been
further amended, supplemented or otherwise modified (except as set
forth in such certificate).
(vi) The Banks shall have received satisfactory evidence that
the Borrowers and Restricted Subsidiaries shall have received cash from
the proceeds of the MLP Transactions in an amount at least equal to
$14,000,000, net of transaction costs associated with the MLP
Transactions and including any amounts paid to the Agent (for the
benefit of the Banks) from the proceeds of the MLP Transaction.
(vii) The Agent shall have received duly executed copies of
the following documents:
(a) A Guaranty Agreement executed by Atlas Pipeline
Partners GP, LLC, whereby such entity shall guarantee, and be surety
for, the payment and performance of the obligations of the Borrowers to
the Banks under and with respect to the MLP Letter of Credit, together
with certified copies of its organizational documents and authorizing
resolutions, an incumbency certificate and recent good standing or
subsistence certificate;
(b) One or more Pledge Agreements securing the
Indebtedness and executed by the Borrowers and the Restricted
Subsidiaries with respect to (x) any common units of Atlas Pipeline LP
now owned or hereafter acquired by such entities and (y) any membership
units of Atlas Pipeline Partners GP, LLC now owned or hereafter
acquired by such entities;
(c) A collateral assignment securing the Indebtedness
and executed by the Borrowers and the Restricted Subsidiaries which are
party to the Master Gas Gathering Agreement with respect to their
rights under such agreement, together with a consent to such collateral
assignment executed by Atlas Pipeline LP and Atlas Pipeline Operating
Partnership, LP;
(d) One or more Pledge Agreements securing the
Guaranty Agreement referred to in item (a) above and executed by Atlas
Pipeline Partners GP, LLC with respect to any common units
(subordinated or otherwise) of Atlas Pipeline LP now owned or hereafter
acquired by such entity.
(viii) The Agent shall have received such assumption
agreements, amendments or acknowledgments to Loan Documents as
requested by Agent and executed by the entity which is the successor by
division to St. Julien III Corporation, and which succeeds to the
ownership of St. Julien III Corporation's assets other than Pipeline
Assets.
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The Agent and the Banks hereby agree to deliver to the Borrowers such
further release documentation reasonably requested by the Borrowers to give
effect to the terms of this Section 2.2, all at the sole cost and expense of the
Borrowers.
Section 2.3 Reduction of Collateral Values; Designated Borrower Re: MLP
Letter of Credit. Notwithstanding any provision of the Agreement to the
contrary, effective upon the consummation of the MLP Transactions, (i) the
Individual Collateral Values with respect to each Borrower, until such amounts
are redetermined pursuant to Section 2.4 of this First Amendment, shall be as
follows: (x) the Individual Collateral Value for Atlas shall be $18,000,000, (y)
the Individual Collateral Value for Viking shall be $12,000,000, and (z) the
Individual Collateral Value for REI shall be $5,000,000, and (ii) therefore, the
Aggregate Collateral Value (the sum of the foregoing Individual Collateral
Values) shall be $35,000,000. Notwithstanding any provision of the Agreement to
the contrary, the Stated Amount of the MLP Letter of Credit at any time during
the term thereof shall, unless and until the Borrowers give notice to the Agent
to the contrary, be allocated among Viking, REI and Atlas pro rata on the
following basis: (x) Viking, 35%; (y) Atlas, 50%, and (z) REI, 15%.
Section 2.4 Individual Collateral Value Redetermination.
Notwithstanding any provision contained in the Agreement to the contrary, the
Borrowers shall, within thirty (30) days of the First Amendment Effective Date,
deliver to the Agent such Engineering Reports and other information meeting the
requirements of Section 2.3 of the Agreement to permit the Banks to make a
special redetermination of the Individual Collateral Values in accordance with
Sections 2.2 and 2.3 of the Agreement. This special redetermination is in lieu
of the scheduled annual determination which was to have been made on the basis
of Engineering Reports to be dated as of September 30, 1999, which annual
determination is hereby specifically waived by the Banks.
Section 2.5 Consent to Distribution to Resource America, Inc. To the
extent that the Borrowers and Restricted Subsidiaries receive payments of
proceeds of the MLP Transactions in excess of the amount required in Section
2.2(vi) of this First Amendment, (i) the Banks hereby consent to the Borrowers
making a distribution of such excess (in an aggregate amount not to exceed
$1,000,000) to Resource America, Inc., and (ii) the Banks hereby waive any
violation of Section 6.10 of the Agreement which would otherwise result from the
Borrowers making such distribution.
Section 2.6 Consent to Sale of Office Buildings. The Borrowers have
requested that the Banks consent to (i) the sale by REI of its office building
located in Akron, Ohio, and (ii) the sale by Viking of its office building
located in Canton, Ohio. The Banks hereby (x) consent to each of these
transactions and (y) waive any violation of Section 6.1 of the Agreement which
would otherwise be caused by the consummation of such transactions.
ARTICLE III
BORROWERS' SUPPLEMENTAL REPRESENTATIONS
Section 3.1 Incorporation by Reference. As an inducement to the Agent
and the Banks to enter into this First Amendment, the Borrowers hereby repeat
herein for the benefit of the Agent and the Banks the representations and
warranties made by the Borrowers in Sections 3.1 through 3.22, inclusive, of the
Existing Agreement, as amended hereby, except that for purposes hereof such
representations and warranties shall be deemed to extend to and cover this First
Amendment.
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent. Each of the following shall be a
condition precedent to the effectiveness of this First Amendment:
(i) The Agent shall have received, on or before the
First Amendment Effective Date, duly executed counterpart originals of
this First Amendment; and
(ii) The following statements shall be true and
correct on the First Amendment Effective Date and the Agent shall have
received a certificate signed by an authorized officer of each
Borrower, dated the First Amendment Effective Date, stating that:
(A) except to the extent modified in
connection with this First Amendment, the representations and
warranties made pursuant to Section 3.1 of this First
Amendment and in the other Loan Documents are true and correct
in all material respects on and as of the First Amendment
Effective Date as though made on and as of such date;
(B) no default under Section 9 of the
Agreement or event which, with the giving of notice or passage
of time or both, would become a default under Section 9 of the
Agreement has occurred and is continuing, or would result from
the execution of or performance under this First Amendment;
and
(C) the Borrowers have in all material
respects performed all agreements, covenants and conditions
required to be performed on or prior to the date hereof under
the Existing Agreement and the other Loan Documents.
(iii) The Agent shall have received on or before the
First Amendment Effective Date copies of board of directors or
shareholder action of the Borrowers authorizing the execution and
delivery of this First Amendment.
(iv) The Agent shall have received on or before the
First Amendment Effective Date, a certificate signed by an authorized
officer of each Borrower with respect to incumbency and the articles or
certificate of incorporation and bylaws of each such entity.
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ARTICLE V
GENERAL PROVISIONS
Section 5.1 Ratification of Terms. Except as expressly amended by this
First Amendment, the Existing Agreement and each and every representation,
warranty, covenant, term and condition contained therein is specifically
ratified and confirmed in all material respects.
Section 5.2 References. All notices, communications, agreements,
certificates, documents or other instruments executed and delivered after the
execution and delivery of this First Amendment in connection with the Agreement,
any of the other Loan Documents or the transactions contemplated thereby may
refer to the Existing Agreement without making specific reference to this First
Amendment, but nevertheless all such references shall include this First
Amendment unless the context requires otherwise. On and after the First
Amendment Effective Date, all references in the Existing Agreement and each of
the other Loan Documents to the "Agreement" shall be deemed to be references to
the Existing Agreement as amended hereby.
Section 5.3 Counterparts. This First Amendment may be executed in
different counterparts, each of which when executed by a Borrower, a Bank and
the Agent shall be regarded as an original, and all such counterparts shall
constitute one First Amendment.
Section 5.4 Capitalized Terms. Except for proper nouns and as otherwise
defined herein, capitalized terms used herein as defined terms shall have the
meanings ascribed to them in the Existing Agreement, as amended hereby.
Section 5.5 Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO THE PROVISIONS
THEREOF REGARDING CONFLICTS OF LAW.
Section 5.6 Headings. The headings of the sections in this First
Amendment are for purposes of reference only and shall not be deemed to be a
part hereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this First Amendment to be duly executed by their proper and
duly authorized officers the day first above written.
WITNESS: ATLAS AMERICA, INC.
By: (SEAL)
- ----------------------------------------------------- -------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
WITNESS: RESOURCE ENERGY, INC.
By: (SEAL)
- ----------------------------------------------------- -------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
WITNESS: VIKING RESOURCES CORPORATION
By: (SEAL)
- ----------------------------------------------------- -------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
-------------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
FIRST UNION NATIONAL BANK, as a Bank
By:
-------------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
KEYBANK NATIONAL ASSOCIATION, as a Bank
By
--------------------------------------------------
Name
------------------------------------------------
Title
-----------------------------------------------
-12-