EX-10 3 ex10-10a.txt EXHIBIT 10.10(A) FIRST AMENDMENT TO CREDIT AGREEMENT ----------------------------------- This First Amendment to Credit Agreement (this "AMENDMENT") is made effective as of the 10th day of July, 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 RESOURCES, INC., a Pennsylvania corporation ("ATLAS RESOURCES"); REI-NY, INC., a Delaware corporation ("REI"), RESOURCE AMERICA, INC., a Delaware corporation ("PARENT"); RESOURCE ENERGY, INC., a Delaware corporation ("RESOURCE ENERGY"); and VIKING RESOURCES CORPORATION, a Pennsylvania corporation ("VIKING"); (AIC, AEC, Atlas Energy, Atlas Holdings, Atlas Noble, Atlas PA, Atlas Resources, Parent, REI, Resource Energy, and Viking collectively, the "GUARANTORS," the Borrower and the Guarantors herein collectively, the "OBLIGORS"); each of the lenders that is a signatory hereto (individually, together with its successors and assigns, a "LENDER" and collectively, the "LENDERS"); WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the "ADMINISTRATIVE AGENT"), 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 the Credit Agreement dated March 12, 2004, to which the Lenders agreed to loan up to $75,000,000 to Borrower (the "ORIGINAL AGREEMENT"). B. Borrower has requested that Administrative Agent, Issuing Bank and Lenders amend the Original Agreement as provided herein, subject to the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and intending to be legally bound, the parties agree as follows: SECTION 1. TERMS DEFINED IN AGREEMENT. As used in this Amendment, except as may otherwise be provided herein, all capitalized terms which are defined in the Original Agreement shall have the same meaning herein as therein, all of such terms and their definitions being incorporated herein by reference. The Original Agreement, as amended by this Amendment, is hereinafter called the "AGREEMENT." SECTION 2. AMENDMENT TO AGREEMENT. Subject to the conditions precedent set forth in SECTION 3 hereof, the Original Agreement is hereby amended as follows: (a) SECTION 9.04 INVESTMENTS, LOANS AND ADVANCES. SUBSECTION (G) of the Agreement is hereby amended and restated as follows: "(g) advances to fund (i) Borrower and its Wholly Owned Subsidiaries' capital contributions under the Partnerships and APL as provided under SECTION 7.07(III) and (ii) up to $10,000,000 of preferred membership units in Atlas Pipeline Operating Partnership, L.P. as provided under the Commitment Letter dated as of June 10, 2004, between Borrower and APL." SECTION 3. CONDITIONS OF EFFECTIVENESS. The obligations of Administrative Agent and Lenders to amend the Original Agreement as provided in this Amendment is subject to the fulfillment of the following conditions precedent: (a) Borrower shall deliver to Administrative Agent and Lenders multiple counterparts of this Amendment, duly executed by the Obligors. SECTION 4. 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 Original 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 Organization Documents of any Obligor, or any contract, agreement, instrument or requirement of any Governmental Authority to which Borrower is subject. Obligors' execution of this Amendment will not result in the creation or imposition of any lien upon any properties of any Obligor, other than those permitted by the Original Agreement and this Amendment. (d) 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 Original Agreement and all instruments and documents executed pursuant thereto or contemplated thereby are true and correct in all material respects on and as of this date, other than those which have been disclosed to Administrative Agent and Lenders in writing. 2 (f) Nothing in this SECTION 4 of this Amendment is intended to amend any of the representations or warranties contained in the Original Agreement or of the Loan Documents to which any Obligor is a party. (g) Attached hereto as EXHIBIT A is a true and correct copy of the Commitment Letter dated as of June 10, 2004, between Borrower and APL regarding Borrower's commitment to purchase up to $10,000,000 of preferred units in Atlas Pipeline Operating Partnership, L.P. SECTION 5. REFERENCE TO AND EFFECT ON THE AGREEMENT. (a) Upon the effectiveness of SECTIONS 1 and 2 hereof, on and after the date hereof, each reference in the Original Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like import shall mean and be a reference to the Original Agreement as amended hereby. (b) Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect and is hereby ratified and confirmed. SECTION 8. 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 9. EXTENT OF AMENDMENTS. Except as otherwise expressly provided herein, the Original Agreement and the other Loan Documents are not amended, modified or affected by this Amendment. Obligors ratify and confirm that (i) except as expressly amended hereby, all of the terms, conditions, covenants, representations, warranties and all other provisions of the Original Agreement remain in full force and effect, (ii) each of the other Loan Documents are and remain in full force and effect in accordance with their respective terms, and (iii) the Collateral is unimpaired by this Amendment. SECTION 10. DISCLOSURE OF CLAIMS. As additional consideration to the execution, delivery, and performance of this Amendment by the parties hereto and to induce Lenders to enter into this Amendment, each Obligor represents and warrants that no Obligor knows of no defenses, counterclaims or rights of setoff to the payment of any Indebtedness. SECTION 11. AFFIRMATION OF GUARANTY, 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 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. 3 (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 Instrument are and remain legal, valid and binding obligations of the parties thereto, enforceable in accordance with their respective terms. SECTION 12. 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 13. GOVERNING LAW. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas. SECTION 14. 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 15. NO ORAL AGREEMENTS. THE ORIGINAL AGREEMENT (AS AMENDED BY THIS AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK. SIGNATURE PAGES TO FOLLOW] 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. 1845 Walnut Street, 10th Floor By:________________________________ Philadelphia, Pennsylvania 19103 Name:______________________________ Attention: Steven Kessler Title:_____________________________ Fax No.: 215.546.4785 E-mail: skessler@resourceamerica.com GUARANTORS: AIC, INC., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ ATLAS AMERICA, INC., a Pennsylvania corporation By:________________________________ Name:______________________________ Title:_____________________________ S-1 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT ATLAS ENERGY CORPORATION an Ohio corporation By:________________________________ Name:______________________________ Title:_____________________________ ATLAS ENERGY GROUP, INC., an Ohio corporation By:________________________________ Name:______________________________ Title:_____________________________ ATLAS ENERGY HOLDINGS, INC., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ ATLAS NOBLE CORP., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ S-2 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT ATLAS PIPELINE PARTNERS GP, LLC, a Delaware limited liability company By:________________________________ Name:______________________________ Title:_____________________________ ATLAS RESOURCES, INC., a Pennsylvania corporation By:________________________________ Name:______________________________ Title:_____________________________ REI-NY, INC., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ RESOURCE AMERICA, INC., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ S-3 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT RESOURCE ENERGY, INC., a Delaware corporation By:________________________________ Name:______________________________ Title:_____________________________ VIKING RESOURCES CORPORATION, a Pennsylvania corporation By:________________________________ Name:______________________________ Title:_____________________________ S-4 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT LENDER, ADMINISTRATIVE AGENT AND ISSUING BANK: WACHOVIA BANK, NATIONAL ASSOCIATION Individually, Administrative Agent and Issuing Bank By:________________________________ Russell Clingman Director Lending Office for Base Rate Loans and LIBOR Loans and Address for Notices: Wachovia Bank, National Association 1001 Fannin, Suite 2255 Houston, Texas 77002 Telephone No.: 713-346-2716 Telecopier No.: 713-650-6354 Attention: Russell Clingman S-5 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT U.S. BANK, NATIONAL ASSOCIATION By:____________________________________________ Name:__________________________________________ Title:_________________________________________ Contact ------- Primary Credit and Financials: Monte E. Deckerd 918 17th Street DNCOBB3E Denver, CO 80202 Tel: (303) 585-4212 Fax: (303) 585-4362 monte.deckerd@usbank.com S-6 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT BANK OF OKLAHOMA, N.A. By:________________________________ Name:______________________________ Title:_____________________________ Contact ------- Primary Credit: Lindsay Sherrer One Williams Center 8-SE Tulsa OK 74192 Tel: (918) 295-0414 Fax: (918) 588-6880 lsherrer@mail.bok.com S-7 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT COMPASS BANK By:________________________________ Name:______________________________ Title:_____________________________ Contact ------- Primary Credit: Dorothy Marchand 24 Greenway Plaza, Suite 1400A Houston, TX 77046 Tel: (713) 968-8272 Fax: (713) 968-8292 dorothy.marchand@compassbnk.com S-8 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT TEXAS CAPITAL BANK, N.A. By:________________________________ Name:______________________________ Title:_____________________________ Contact ------- Primary Credit: Mike Black One Riverway, Suite 2450 Houston, TX 77056 Tel: (713) 439-5904 Fax: (713) 439-5947 mike.black@texascapitalbank.com By: /s/ Michael L. Staines ---------------------------- Name: Michael L. Staines ---------------------------- Title: President ---------------------------- Date: 6/16/2004 ---------------------------- S-9 SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT [GRAPHIC OMITTED] Atlas America, Inc. EXHIBIT A --------- June 10, 2004 Atlas Pipeline Partners, L.P. 1845 Walnut Street Philadelphia, PA 19103 Ladies and Gentlemen: Atlas America, Inc. ("AAI") is pleased to offer its commitment to purchase up to $10.0 million of preferred units in Atlas Pipeline Operating Partnership, L.P. upon the closing (the "Closing") of the acquisition by you of all of the equity interests of Spectrum Field Services, Inc., all in accordance with the attached Term Sheet. In consideration for its commitment, you will pay to AAI the fees set forth on the Term sheet, which shall be earned and non-refundable once payable in accordance with the Term Sheet. Whether or not the transactions hereby contemplated proceed to Closing, you agree to pay the AAI's out-of-pocket expenses as described in the Term Sheet. Out-of-pocket expenses will be paid by you promptly upon billing. If you are in agreement with the foregoing, please sign where indicated below and return to the undersigned the original fully executed Commitment Letter. Upon receipt of the same, this Commitment Letter shall become effective to the extent and in the manner provided herein. Sincerely, ATLAS AMERICA, INC. By: /s/ Freddie Kotek --------------------------- Name: Freddie Kotek Title: Executive Vice President & CEO AGREED TO AND ACCEPTED BY: ATLAS PIPELINE PARTNERS, L.P. By: Atlas Pipeline Partners GP, LLC, its sole general partner By: /s/ Michael L. Staines -------------------------------------- Name: Michael L. Staines Title: President Date: 6/16/2004
ATLAS PIPELINE PARTNERS L.P. ---------------------------- Commitment to Purchase Preferred Limited Partner Interests in Atlas Pipeline Operating Partnership, L.P. Summary of Principal Terms and Conditions ---------------------------------------------------------------------------------------------------------- PROPOSED SPECTRUM TRANSACTION: Atlas Pipeline Partners L.P. ("APL" or the "Company") shall acquire all of the capital stock of Spectrum Field Services, Inc. ("Spectrum") for total cash consideration of $57 million, plus the payoff of $15.6 million of subordinated notes payable to Energy Spectrum Partners and $31.5 million of bank debt. Further, APL will realize a $35.6 million tax liability upon the liquidation of the Spectrum C-corp. The total value of the consideration, the debt pay-offs and the tax liquidation liability is $140 million. Total fees and expenses of $5 million are expected. The SPA will be signed without a financing contingency by June 15, 2004. Closing is expected in mid-July 2004. ---------------------------------------------------------------------------------------------------------- COMMITMENT TO PURCHASE PREFERRED PARTNERSHIP In connection with the closing of Spectrum, the UNITS OF ATLAS PIPELINE OPERATING PARTNERSHIP, Company may request that Atlas America, Inc. L.P. ("AAI") purchase preferred partnership units (the "Preferred Units") of Atlas Pipeline Operating Partnership, L.P. ("OLP") at a purchase price of $25 per unit (the "Initial Purchase Price"). ---------------------------------------------------------------------------------------------------------- COMMITMENT AMOUNT: $10,000,000 ---------------------------------------------------------------------------------------------------------- DISTRIBUTIONS TO PREFERRED UNITS: OLP shall make cumulative cash distributions to the Preferred Units equal to 12% per ammum, payable monthly and calculated on a 360/30 day basis. Distributions to the Preferred Units shall be senior in right of payment to all other equity units of OLP, including distributions to the general partner. ---------------------------------------------------------------------------------------------------------- APL PURCHASE OPTION: APL shall have the right to purchase, at any time, in all or in part, the Preferred Units at the Initial Purchase Price plus accrued and unpaid preferred unit distributions, plus the Purchase Premium described below. ---------------------------------------------------------------------------------------------------------- PURCHASE PREMIUM: During the first 90 days after the funding of the Preferred Units, the Purchase Premium shall equal 2% of the amount repurchased. The Purchase Premium shall increase by 1% per month on the first day of each successive month, beginning on the 91st day after funding. ---------------------------------------------------------------------------------------------------------- EXPIRATION OF THE COMMITMENT: The earlier of [December 1, 2004] or the successful offering of equity units of APL of at least $25 million, net. APL may terminate the commitment at anytime, subject to the Commitment Fee and Termination Fee outlined below. ----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------- LIQUIDATION PREFERENCE: Upon liquidation of OLP, proceeds remaining after payment of the Senior Bank Credit Facility, other creditors and the costs and expenses of liquidation will be applied first to the payment of the Initial Purchase Price of the Preferred Units, plus the applicable Purchase Premium and the cumulative unpaid distributions thereon; then to other equity owners of OLP. ---------------------------------------------------------------------------------------------------------- VOTING RIGHTS: The Preferred Units shall have equal voting rights as the OLP limited partners. ---------------------------------------------------------------------------------------------------------- TRANSFERABILITY: AAI shall have the right to transfer the Preferred Units, subject to applicable state and federal securities laws, subject to a right of first refusal by APL. ---------------------------------------------------------------------------------------------------------- COMMITMENT FEE: 1.5% of the Committed Amount upon signing the commitment letter. ---------------------------------------------------------------------------------------------------------- TERMINATION OR FUNDING FEE: 3.5% of the Committed Amount. ---------------------------------------------------------------------------------------------------------- EXPENSES: APL shall pay all reasonable out-of-pocket travel, due diligence, legal and accounting fees and expenses of AAI. ---------------------------------------------------------------------------------------------------------- CONDITIONS PRECEDENT TO COMMITMENT: o Definitive Purchase Agreement for the Preferred Units. o An effective shelf registration for the issuance of APL common units. o APL shall not be in default of its partnership agreement or related agreements as a result of the commitment or the possibility that the Preferred Units could be funded. ---------------------------------------------------------------------------------------------------------- CONDITIONS PRECEDENT TO FUNDING: o APL has executed definitive Purchase and Sale Agreement for the acquisition of Spectrum. o APL continues to maintain an effective shelf registration statement with sufficient availability to repurchase the Preferred Units. o The Senior Secured Credit Facility is funded and no event of default exists or could be expected to occur as a result of the funding of the Preferred Units. ---------------------------------------------------------------------------------------------------------- EXCHANGEABILITY: At any time after January 1, 2005, AAI may choose to exchange the Preferred Units for common units of APL based on market price of common units immediately prior to conversion. ----------------------------------------------------------------------------------------------------------