Execution Copy
THIRD AMENDMENT TO CREDIT AGREEMENT
This Amendment to Credit Agreement (this "Amendment") is made as of the
15th day of September, 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"), 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:
A. The Obligors, Lenders and Administrative Agent 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.
C. Effective March 28, 2003, Wachovia Bank, National Association, as
Lender, assigned to KeyBank National Association, pursuant to that certain
Assignment Agreement dated March 28, 2003 (the "Assignment Agreement"), fifty
percent (50%) of Wachovia Bank, National Association's Percentage Share of the
Revolving Credit Commitment. Pursuant to such assignment, KeyBank National
Association is a Lender.
D. Contemporaneously with the execution of the Assignment Agreement,
the Credit Agreement was further amended by that certain Second Amendment to
Credit Agreement dated March 28, 2003 (the "Second Amendment"), pursuant to
which the Lenders agree to loan up to $15,000,000 to Borrower (the Credit
Agreement as amended by the First Amendment and by the Second Amendment is
herein called the "Original Agreement").
E. Borrower has requested that the Original Agreement be further
amended including without limitation, increasing the aggregate Maximum Revolving
Credit Amount to $20,000,000, and providing for the acquisition of certain
Unrestricted Entities (as herein defined), and the 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 3 hereof, the Original Agreement is hereby amended as
follows:
(a) Section 1.02 is amended to add the following:
"APC" shall mean Alaska Pipeline Company, LLC, a Delaware
limited liability company.
"APC Acquisition" shall mean APC Acquisition, LLC, a
Delaware limited liability company.
"RAI" shall mean Resource America, Inc., a Delaware
corporation.
"RAI Put Agreement" shall mean the Put Agreement to be
entered into between Borrower and RAI containing
substantially the same terms as set forth in the RAI Put
Term Sheet.
"RAI Put Term Sheet" shall mean the term sheet dated
September 15, 2003 for RAI Standby Commitment to Borrower
for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Put Right.
"Unrestricted Entities" shall mean APC Acquisition and,
upon consummation of its acquisitions of an equity
interest in APC by APC Acquisition, APC.
(b) The definition of "Applicable Margin" is amended by
deleting the table contained therein and adding the following table in
replacement thereof:
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Leverage Ratio Applicable Margin
-----------------------------------------------------------------------------
LIBOR Loans Base Rate Loans
-----------------------------------------------------------------------------
L/C Fees
-----------------------------------------------------------------------------
Less than or equal to 1.5 1.50% 0.00%
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Greater than 1.5, 1.75% 0.25%
but less than or equal to 2.5
-----------------------------------------------------------------------------
Greater than 2.5, 2.00% 0.50%
but less than or equal to 3.0
-----------------------------------------------------------------------------
Greater than 3.0 2.50% 0.75%
-----------------------------------------------------------------------------
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(c) The definition of "Guarantor" is amended by adding the
following phrase immediately before the period (".") at the end of the
definition:
", except for the Unrestricted Entities"
(d) The definition of "Change in Control" is amended by adding
the following phrase immediately following the term "Borrower at the
end of clause (i) of such definition:
"(provided, however, the acquisition by RAI, or a
wholly-owned subsidiary of RAI, of 25% or more of the
voting common units of Borrower pursuant to the terms of
the RAI Put Agreement is deemed to not constitute a Change
in Control)"
(e) The definition of "Consolidated Subsidiaries" is amended
by adding the following phrase immediately before the period (".") at
the end of the definition:
", provided, however, that the Consolidated Subsidiaries
of Borrower shall not include the Unrestricted Entities"
(f) Clause (i) in the first sentence of Section 2.06 is
deleted and replaced in its entirety by the following:
"(i) as of September 15, 2003"
(g) Section 2.12 is deleted in its entirety.
(h) The second sentence of Section 8.13 is deleted and
replaced in its entirety by the following sentences:
"In addition, at the time of the formation or acquisition
of any Subsidiary (other than the Unrestricted Entities),
Borrower shall cause such Subsidiary to execute and
deliver to the Administrative Agent (a) a Guaranty
substantially in the form and upon the terms of Exhibit
G-1, providing for the guaranty of payment and performance
of the Indebtedness, (b) Security Documents in form and
substance satisfactory to the Administrative Agent
creating liens and security interests in all assets and
properties of such Subsidiary and in the equity interest
of such Subsidiary except for any equity interests in
Unrestricted Entities, and (c) such other documents and
instruments as may be required with respect to such
Subsidiary pursuant to Section 8.05. At the time or
acquisition of any Subsidiary or any Unrestricted Entity,
Borrower shall cause such Subsidiary or Unrestricted
Entity to execute and deliver to Administrative Agent
certified copies of such Subsidiary's, or Unrestricted
Entity's, as the case may be, organizational documents.
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(i) Section 9.01 is amended by replacing the period (".") with
a semi-colon (";") at the end of Subsection 9.01 (h), and deleting the
existing Subsection 9.01 (i) and replacing it with the following
Subsections 9.01(i), (j) and (k):
"(i) Debt in the form of limited guaranty agreements
executed by Borrower and APL Operating, severally,
guaranteeing Debt incurred by APC Acquisition in an amount
not to exceed $50,000,000;
(j) Debt not otherwise described under subparagraphs (a)
through (i) above not to exceed $250,000 in the aggregate;
and
(k) Debt to RAI constituting Borrower's obligation to
purchase RAI's Preferred Membership Interests in APC
Acquisition, in the event RAI acquires such interests from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ under the terms of the RAI Put
Agreement, and to reimburse RAI for its expenses in
accordance with the RAI Put Term Sheet."
(j) Section 9.02 is amended by deleting the "and" at the end
of Subsection 9.02(e) and inserting immediately before the period (".")
at the end of Subsection 9.02 (f), the following Subsection 9.02(g):
"and,
(g) Liens on equity interests in any Unrestricted Entities
securing Debt of such Unrestricted Entities."
(k) Subsection 9.03(i) is amended by:
(A) adding to clause (b) the following phrase
immediately following the term "Person":
"(other than an Unrestricted Entity)";
(B) adding to clause (e) the following phrase
immediately following the term "Person":
"(other than an Unrestricted Entity)";
(C) adding to clause (f) the following phrase
immediately following the phrase "in such acquired
assets" at the end of clause (f):
"; provided, however, nothing herein shall
require any Unrestricted Entity to grant a
first priority lien in its assets"; and
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(D) deleting existing clause (y) and replacing it in
its entirety by the following:
"(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, except for the acquisition by APC
Acquisition of an equity interest in APC."
(l) Section 9.06 is amended by adding the following phrase at
the end of the first sentence thereof:
"and as an owner of Unrestricted Entities."
(m) Section 9.14 is amended by deleting the number "3.00" and
replacing it with the number "3.50."
(n) Section 9.15 is amended by deleting the number
"$16,000,000" and replacing it with the number "$30,500,000."
(o) Section 9.18 is amended by deleting the "and" immediately
following the number "5" and adding the following phrase immediately
following the number "6":
", 19, and 20"
(p) Section 9.20 is amended by adding the following phrase
immediately following the term "Subsidiaries" in the first sentence
thereof:
"(other than Unrestricted Entities)"
(q) Section 9.23 is amended by adding the following sentence
at the end thereof: "Without limiting the forgoing, no amendment to the
RAI Put Agreement shall be made that shall modify the terms of
Borrower's payment option with respect to the RAI put in such a manner
as to require or permit Borrower to pay cash to RAI for such put."
(r) Annex I attached to the Original Agreement is deleted in
its entirety and Annex I attached hereto is substituted in lieu
thereof.
(s) Schedule 7.15 attached to the Original Agreement is
deleted in its entirety and Schedule 7.15 attached hereto is
substituted in lieu thereof.
(t) Schedule 7.23 attached to the Original Agreement is
amended to add as items 19 and 20 thereto the RAI Put Term Sheet and
the RAI Put Agreement, respectively.
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SECTION 3. Increase in Maximum Revolving Credit Amounts. Upon
satisfaction of the conditions of effectiveness under Section 4 hereof, the
total aggregate Maximum Revolving Credit Amounts will be increased to
$20,000,000. 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.
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) Borrower shall deliver to Administrative Agent and Lenders
multiple counterparts of this Amendment, duly executed by the Obligors
and the Unrestricted Entities.
(b) Borrower shall deliver to Wachovia Bank, National
Association its $10,000,000 promissory note duly executed by Borrower.
(c) Borrower shall deliver to KeyBank National Association its
$10,000,000 promissory note duly executed by Borrower.
(d) Borrower shall deliver duly executed multiple counterparts
of certificates of the Secretary or Assistant Secretary of each of the
Company, and the Guarantors setting forth resolutions of its Board of
Directors in form and substance satisfactory to the Lender with respect
to this Amendment.
(e) Borrower shall deliver such other agreements, documents,
financing statements, items, instruments, opinions, certificates,
waivers, consents, and evidence as the Lender may request.
(f) Borrower shall pay to Administrative Agent, for the
ratable account of the Lenders, a fee equal to three-quarters of one
percent (0.75%) of the increase in the total aggregate Maximum
Revolving Credit Amounts from $15,000,000 to $20,000,000.
(g) 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 8 hereof to the extent invoices for such fees and
expenses have been delivered to Borrower.
SECTION 5. Post-Closing Obligations. On or before September 30, 2003,
each Obligor, as applicable, shall deliver to Administrative Agent (i) duly
executed multiple counterpart amendments to such of the Security Instruments as
requested by Administrative Agent to amend the amount of the maximum
indebtedness secured by such Security Documents from $15,000,000 to $20,000,000,
and, (ii) as necessary, such mortgage tax affidavit(s). Each Obligor, as
necessary, shall pay such mortgage taxes as may be due as a result of the
amendment to the Security Instruments.
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SECTION 6. Representations and Warranties. Each of the Obligors, as
applicable, 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 such 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 such Obligor is subject; the 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 6 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 7. 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.
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(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 any defenses, counterclaims or rights of
setoff to the payment of any Indebtedness.
SECTION 11. 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 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.
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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.]
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IN WITNESS WHEREOF, the parties have executed this Third 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:
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
S-1
GUARANTORS:
ATLAS PIPELINE PARTNERS GP, LLC, a
Delaware limited liability company
By:
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
S-2
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:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ATLAS PIPELINE OPERATING PARTNERSHIP, a
Delaware limited partnership
By: Atlas Pipeline Operating Partnership,
L.P., a Delaware limited partnership
and its sole member
By:
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
S-3
LENDER, ADMINISTRATIVE AGENT AND
ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
Individually, Administrative Agent and
Issuing Bank
By:
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Director
S-4
LENDER:
KEYBANK NATIONAL ASSOCIATION
Individually
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
S-5
ANNEX 1
Annex I 1
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Maximum Revolving
Name of Lender Outstanding Loans Letters of Credit Percentage Share Credit Amount
--------------------------------------------------------------------------------------------------------------------
Wachovia Bank, National $0 $0 50% $10,000,000
Association
--------------------------------------------------------------------------------------------------------------------
KeyBank National Association $0 $0 50% $10,000,000
--------------------------------------------------------------------------------------------------------------------
Total $0 100% $20,000,000
--------------------------------------------------------------------------------------------------------------------
Annex I 1
SCHEDULE 7.15
OWNERSHIP/SUBSIDIARIES
(Issued and Outstanding Membership Units of the General Partner)
-----------------------------------------------------------------------------------------------------------------
Holder Percentage of Ownership
-----------------------------------------------------------------------------------------------------------------
AIC, Inc. 33.40% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
Viking Resources Corp. 23.56% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
Resource Energy Group, Inc. 20.24% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
Atlas Energy Group, Inc. 10.21% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
REI - NY, Inc. 6.63% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
Atlas Resources, Inc. 5.96% member interest of Atlas Pipeline Partners, GP, LLC
-----------------------------------------------------------------------------------------------------------------
(Ownership of Authorized Securities of the Subsidiaries)
Atlas Pipeline Partners, L.P. owns a 98.9899% limited partner interest in Atlas
Pipeline Operating Partnership, L.P.
Atlas Pipeline Partners GP, LLC owns a 1.0101% general partner interest in Atlas
Pipeline Operating Partnership, L.P.
Atlas Pipeline Operating Partnership, L.P. owns a 100% member interest in Atlas
Pipeline Ohio, LLC.
Atlas Pipeline Operating Partnership, L.P. owns a 100% member interest in Atlas
Pipeline Pennsylvania, LLC.
Atlas Pipeline Operating Partnership, L.P. owns a 100% member interest in Atlas
Pipeline New York, LLC.
Atlas Pipeline Operating Partnership, L.P. owns a 100% member interest in APC
Acquisition, LLC.
Schedule 7.15