FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") is made as
of the 31st day of January, 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"), UNION BANK OF
CALIFORNIA, N.A. as Syndication Agent ("Syndication 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
December 27, 2002 (the "Original Agreement") pursuant to which the Lenders
agreed to loan up to $7,500,000 to Borrower.
B. Borrower has requested that Administrative Agent and Lenders consent
to amend the Original Agreement in order to modify Section 2.12 of the Original
Agreement pursuant to Section 12.04 of the Original Agreement, 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 2.12 of the Original Agreement hereby is amended
by inserting the following immediately prior to the first sentence
thereof:
"As of the Effective Date, the Aggregate Maximum
Revolving Credit Amount shall be $7,500,000.00; on February 1,
2003, until June 30, 2003, the Aggregate Maximum Revolving
Credit Amount shall increase to $10,000,000 and beginning on
July 1, 2003, and at all times thereafter the Aggregate
Maximum Revolving Credit Amount shall reduce to $7,500,000
unless decreased pursuant to the terms of Section 2.03(a) or
increased pursuant to the following provisions of this Section
2.12."
(b) The Original Credit Agreement is hereby amended to delete
all references to Union Bank of California, N.A., including any
references to such bank as a "Lender" and as "Syndication Agent" and
further to delete all references to "Syndication Agent."
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.
(b) Borrower shall deliver to Wachovia Bank, National
Association, its $10,000,000 promissory note duly executed by Borrower.
(c) 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 6 hereof to the extent invoices for such fees and
expenses have been delivered to Borrower.
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 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.
(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.
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(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.
(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.
(f) Nothing in this Section 4 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 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 6. 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 7. 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 8. 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.
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SECTION 9. 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 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 10. 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 11. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
SECTION 12. 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 13. 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 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: /s/ Michael L. Staines
-----------------------------
Michael L. Staines, President
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GUARANTORS:
ATLAS PIPELINE PARTNERS GP, LLC, a
Delaware limited liability company
By: /s/ Michael L. Staines
-------------------------------------------
Michael L. Staines, 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: /s/ Michael L. Staines
-------------------------------------
Michael L. Staines, 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: /s/ Michael L. Staines
-------------------------------------
Michael L. Staines, 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: /s/ Michael L. Staines
-------------------------------------
Michael L. Staines, 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: /s/ Michael L. Staines
-----------------------------------------
Michael L. Staines, President
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LENDER, ADMINISTRATIVE AGENT AND ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
Individually, Administrative Agent and Issuing Bank
By: /s/ Russell Clingman
------------------------------------------------
Russell Clingman
Director
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