SECOND AMENDMENT TO CREDIT AGREEMENT
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This Second Amendment to Credit Agreement (this "Amendment") is made as
of the 28th day of March, 2003, by and among ATLAS PIPELINE PARTNERS, L.P., a
Delaware limited partnership (the "Borrower"); ATLAS PIPELINE PARTNERS GP, LLC,
a Delaware limited liability company ("General Partner"); ATLAS PIPELINE NEW
YORK, LLC, a Pennsylvania limited liability company ("APL New York"); ATLAS
PIPELINE OHIO, LLC, a Pennsylvania limited liability company ("APL Ohio"), ATLAS
PIPELINE PENNSYLVANIA, LLC, a Pennsylvania limited liability company ("APL
Pennsylvania"), and ATLAS PIPELINE OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership ("APL Operating," together with General Partner, APL New
York, APL Ohio and APL Pennsylvania, collectively, the "Guarantors" and the
Borrower and the Guarantors 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 as issuing
bank (in such capacity, together with its successors in such capacity, the
"Issuing Bank").
R E C I T A L S:
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A. The parties hereto are parties to the Credit Agreement dated
December 27, 2002 (the "Credit Agreement"), pursuant to which the Lenders agreed
to loan up to $7,500,000 to Borrower.
B. The Credit Agreement was amended by that certain First Amendment to
Credit Agreement dated January 31, 2003 (the "First Amendment"), pursuant to
which the Lenders agreed to loan up to $10,000,000 to Borrower (the Credit
Agreement as amended by the First Amendment is herein called the "Original
Agreement").
C. Immediately prior to the effectiveness of this Amendment Wachovia
Bank, National Association, as Lender, has assigned to KeyBank National
Association under that certain Assignment Agreement of even date herewith (the
"Assignment Agreement") fifty percent (50%) of Wachovia Bank, National
Association's Percentage Share of the Revolving Credit Commitment (the "Assigned
Interest"). Pursuant to such assignment, KeyBank National Association is a party
to the Original Agreement and, under Section 2.12 of the Original Agreement, is
an "Augmenting Lender."
D. Borrower has requested, pursuant to Section 2.12 of the Original
Agreement, the Maximum Revolving Credit Amount be increased to $15,000,000 and
KeyBank National Association, as Augmenting Lender, the other Lenders and the
Administrative Agent consent to amend the Original Agreement in order to modify
certain provisions of the Original Agreement pursuant to the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound, the parties agree as follows:
SECTION 1. Terms Defined in Agreement. As used in this Amendment,
except as may otherwise be provided herein, all capitalized terms which are
defined in the Original Agreement shall have the same meaning herein as therein,
all of such terms and their definitions being incorporated herein by reference.
The Original Agreement, as amended by this Amendment, is hereinafter called the
"Agreement."
SECTION 2. Amendment to Agreement. Subject to the conditions precedent
set forth in Section 4 hereof, the Original Agreement is hereby amended as
follows:
(a) Section 1.02 is amended to add the following:
"Appalachian Basin" shall mean the states of New
York, Ohio, West Virginia, Kentucky and Tennessee, and the
Commonwealths of Pennsylvania and Virginia.
(b) The definition of "Majority Lenders" is amended by
deleting the term "sixty-seven percent (67%)" and replacing it with the
term "one hundred percent (100%)" in each instance such term appears.
(b) Section 9.03(i) is amended by inserting the following
phrase immediately before the period "." at the end of subsection (i):
"; provided further, that (x) such acquisitions shall
be limited to Persons primarily involved in the business of,
and/or assets primarily involving, natural gas gathering
operations and (y) such acquisitions outside the Appalachian
Basin which are otherwise permitted pursuant to this Section
9.03(i) shall be limited to an aggregate purchase price of
$5,000,000 during the term of this Agreement."
(c) Section 10.01 is amended by replacing the period "." at
the end of subsection (l) with "; or" and adding the following
subsection (m) immediately after subsection (l):
"(m) a Material Adverse Effect occurs."
(d) Annex I attached to the Original Agreement is deleted in
its entirety and Annex I attached hereto is substituted in lieu
thereof.
SECTION 3. Increase in Maximum Revolving Credit Amounts. Pursuant to
the Borrower's written request under Section 2.12, and immediately following the
assignment of the Assigned Interest to Key Bank National Association, the total
aggregate Maximum Revolving Credit Amounts will be increased to $15,000,000.
After giving effect to this Amendment, the Maximum Revolving Credit Amounts,
outstanding Loans, risk relating to outstanding Letters of Credit, and
Percentage Share of the Lenders are as set forth on Annex I hereto.
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SECTION 4. Conditions of Effectiveness. The obligations of
Administrative Agent and Lenders to amend the Original Agreement as provided in
this Amendment and give effect to Section 3 hereof is subject to the fulfillment
of the following conditions precedent:
(a) The Assignment Agreement from Wachovia Bank, National
Association to KeyBank National Association shall be fully executed.
(b) Borrower shall deliver to Administrative Agent and Lenders
multiple counterparts of this Amendment, duly executed by the Obligors.
(c) Borrower shall deliver to Wachovia Bank, National
Association its $7,500,000 promissory note duly executed by Borrower.
(d) Borrower shall deliver to KeyBank National Association its
$7,500,000 promissory note duly executed by Borrower.
(e) Borrower shall pay to Administrative Agent for the benefit
of KeyBank National Association $56,250.00 as an upfront fee.
(f) Borrower shall deliver duly executed multiple counterparts
of certificates of the Secretary or Assistant Secretary of the Company
and Guarantor setting forth resolutions of its Board of Directors in
form and substance satisfactory to the Lender with respect to this
Amendment.
(g) such other agreements, documents, financing statements,
items, instruments, opinions, certificates, waivers, consents, and
evidence as the Lender may request.
(h) Borrower shall have made payment to Administrative Agent,
in immediately available funds, payment of all accrued and unpaid legal
fees and expenses referred to in Section 12.03 of the Original
Agreement and Section 7 hereof to the extent invoices for such fees and
expenses have been delivered to Borrower.
SECTION 5. Representations and Warranties. 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 and
the Loan Documents and each and every other document executed and
delivered in connection with this Amendment to which any Obligor is a
party constitute the legal, valid and binding obligations of each
Obligor to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms;
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(c) This Amendment does not and will not violate any
provisions of any of the Organization Documents of any Obligor, or any
contract, agreement, instrument or requirement of any Governmental
Authority to which Borrower is subject; Obligors' execution of this
Amendment will not result in the creation or imposition of any lien
upon any properties of any Obligor other than those permitted by the
Original Agreement and this Amendment;
(d) Execution, delivery and performance of this Amendment by
Obligors does not require the consent or approval of any other Person,
including, without limitation, any regulatory authority or governmental
body of the United States of America or any state thereof or any
political subdivision of the United States of America or any state
thereof; and
(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.
Nothing in this Section 5 of this Amendment is intended to amend any of
the representations or warranties contained in the Agreement or of the Loan
Documents to which any Obligor is a party.
SECTION 6. Reference to and Effect on the Agreement.
(a) Upon the effectiveness of Sections 1, 2 and 3 hereof, on
and after the date hereof, each reference in the Original Agreement to
"this Agreement," "hereunder," "hereof," "herein," or words of like
import, shall mean and be a reference to the Original Agreement as
amended hereby.
(b) Except as specifically amended by this Amendment, the
Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
SECTION 7. Cost, Expenses and Taxes. Borrower agrees to pay on demand
all reasonable costs and expenses of Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including reasonable
attorneys' fees and out-of-pocket expenses of Administrative Agent. In addition,
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.
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SECTION 8. Extent of Amendments. Except as otherwise expressly provided
herein, the Original Agreement and the other Loan Documents are not amended,
modified or affected by this Amendment. Obligors ratify and confirm that (i)
except as expressly amended hereby, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Original Agreement
remain in full force and effect, (ii) each of the other Loan Documents are and
remain in full force and effect in accordance with their respective terms, and
(iii) the Collateral is unimpaired by this Amendment.
SECTION 9. Disclosure of Claims. As additional consideration to the
execution, delivery, and performance of this Amendment by the parties hereto and
to induce Lenders to enter into this Amendment, each Obligor represents and
warrants that no Obligor knows of any defenses, counterclaims or rights of
setoff to the payment of any Indebtedness.
SECTION 10. Affirmation of Security Interest. Obligors hereby confirm
and agree that any and all liens, security interest and other security or
Collateral now or hereafter held by Administrative Agent for the benefit of
Lenders as security for payment and performance of the Obligations 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 ORIGINAL AGREEMENT (AS AMENDED BY
THIS AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page intentionally blank. Signature
pages to follow.]
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IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Credit Agreement the day and year first above written.
BORROWER:
ATLAS PIPELINE PARTNERS, L.P., a Delaware
limited partnership
By: Atlas Pipeline Partners GP, LLC,
its General Partner
By:____________________________________
Xxxxxxx X. Xxxxxxx, President
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GUARANTORS:
ATLAS PIPELINE PARTNERS GP, LLC, a
Delaware limited liability company
By:__________________________________________
Xxxxxxx X. Xxxxxxx, President
ATLAS PIPELINE NEW YORK, LLC, a
Pennsylvania limited liability company
By: Atlas Pipeline Operating Partnership,
L.P., a Delaware limited partnership
and its sole member
By: Atlas Pipeline Partners GP, LLC, a
Delaware limited liability company
and its sole general partner
By:________________________________
Xxxxxxx X. Xxxxxxx, President
ATLAS PIPELINE OHIO, LLC, a Pennsylvania
limited liability company
By: Atlas Pipeline Operating Partnership,
L.P., a Delaware limited partnership
and its sole member
By: Atlas Pipeline Partners GP, LLC, a
Delaware limited liability company
and its sole general partner
By:________________________________
Xxxxxxx X. Xxxxxxx, President
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ATLAS PIPELINE PENNSYLVANIA, LLC, a
Pennsylvania limited liability company
By: Atlas Pipeline Operating Partnership,
L.P., a Delaware limited partnership
and its sole member
By: Atlas Pipeline Partners GP, LLC, a
Delaware limited liability company
and its sole general partner
By:________________________________
Xxxxxxx X. Xxxxxxx, President
ATLAS PIPELINE OPERATING PARTNERSHIP, a
Delaware limited partnership
By: Atlas Pipeline Partners GP, LLC, a
Delaware limited liability company and
its sole general partner
By:________________________________
Xxxxxxx X. Xxxxxxx, President
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LENDER, ADMINISTRATIVE AGENT AND ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
Individually, Administrative Agent and
Issuing Bank
By:__________________________________________
Xxxxxxx Xxxxxxxx
Director
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LENDER:
KEYBANK NATIONAL ASSOCIATION
Individually
By:_________________________
Xxxxxxx X. Xxxxxx
Vice President
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ANNEX 1
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Maximum Revolving
Name of Lender Outstanding Loans Letters of Credit Percentage Share Credit Amount
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Wachovia Bank, 50% $7,500,000
National Association
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KeyBank National 50% $7,500,000
Association
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Total 100% $15,000,000
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Annex I 1
