EXECUTION COPY
ATLAS PIPELINE PARTNERS, L.P.
2,100,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
July 14, 2004
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
KEYBANC CAPITAL MARKETS,
a Division of McDonald Investments Inc.
XXXXXXX XXXXXX XXXXXX INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Atlas Pipeline Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the several underwriters named in
Schedule 1 hereto (the "Underwriters") an aggregate of 2,100,000 common units
(the "Firm Units"), each representing a limited partner interest in the
Partnership (the "Common Units"). In addition, the Partnership proposes to grant
to the Underwriters an option to purchase up to an additional 315,000 Common
Units on the terms and for the purposes set forth in Section 2 (the "Option
Units"). The Firm Units and the Option Units, if purchased, are hereinafter
collectively called the "Units."
Atlas Pipeline Partners, GP, LLC, a Delaware limited liability company
(the "General Partner"), serves as the general partner of the Partnership.
Subject only to the issuance of preferred units (the "Preferred Units") to
Resource America, Inc. and Atlas America, Inc. in connection with the Spectrum
Acquisition (as such term is defined below), the Partnership is the sole limited
partner of Atlas Pipeline Operating Partnership, L.P., a Delaware limited
partnership (the "Operating Partnership"), and the General Partner is the
general partner of the Operating Partnership. Each of Atlas Pipeline Ohio, LLC,
a Pennsylvania limited liability company ("Ohio LLC"), Atlas Pipeline
Pennsylvania, LLC, a Pennsylvania limited liability company ("Pennsylvania
LLC"), and Atlas Pipeline New York, LLC, a Pennsylvania limited liability
company ("New York LLC"), is a subsidiary of the Operating Partnership. APC
Acquisition, LLC, a Delaware limited liability company ("APC LLC"), is a
subsidiary of the Partnership. On or prior to the First Delivery Date (as
defined herein) the Operating Partnership will purchase 100% of the capital
stock of Spectrum Field Services, Inc., a Delaware corporation (the "Spectrum
Acquisition"). Upon closing of the Spectrum Acquisition, Spectrum Field
Services, Inc. will adopt articles of conversion and convert to a Delaware
limited liability company named Spectrum Field Services, LLC ("Spectrum"). For
purposes of this Agreement, each of Ohio LLC, Pennsylvania LLC, New York LLC,
APC LLC and Spectrum is sometimes referred to herein individually as a
"Subsidiary" and collectively, as the "Subsidiaries."
The Partnership, the General Partner, the Operating Partnership and the
Subsidiaries are sometimes referred to herein individually as a "Partnership
Entity" and collectively as the "Partnership Entities." The Partnership Entities
excluding the General Partner are sometimes referred to herein collectively as
the "Partnership Group." The Partnership, the General Partner and the Operating
Partnership are sometimes referred to herein collectively as the "Atlas
Parties."
This underwriting agreement (the "Agreement") is to confirm the
agreement concerning the purchase of the Units from the Partnership by the
Underwriters.
Section 1. Representations, Warranties and Agreements of the Atlas
Parties.
The Atlas Parties, jointly and severally, represent, warrant and agree
that:
(a) A registration statement on Form S-3 (File No. 333-113523) with
respect to the Common Units being sold by the Partnership has (i) been prepared
by the Partnership in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies of
such registration statement and each of the amendments thereto, if any, have
been delivered by the Partnership to you. As used in this Agreement, "Effective
Time" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of each Effective Time;
"Preliminary Prospectus" means any preliminary prospectus supplement, including
the accompanying base prospectus, filed with the Commission by the Partnership
with your consent with respect to the Units pursuant to Rule 424(b) of the Rules
and Regulations; "Registration Statement" means such registration statement
referred to above, as amended at the Effective Time, including any documents
incorporated by reference therein at such time and all information contained in
the final prospectus supplement, including the accompanying base prospectus,
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
and deemed to be a part of the registration statement as of the Effective Time
pursuant to Rule 430A of the Rules and Regulations and any new registration
statement registering additional securities pursuant to Rule 462(b) of the Rules
and Regulations; and "Prospectus" means the final prospectus supplement,
including the accompanying base prospectus, as first filed with the Commission
pursuant to paragraph (2) or (5) of Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus or to the Prospectus shall
be deemed to refer to and include any information incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in the Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any periodic report of the Partnership
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. The Partnership meets the requirements for
use of Form S-3 under the Securities Act.
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(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of the
Effective Date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of the Prospectus, in light of
the circumstances under which the statements were made); and each of the
statements made by the Partnership in the Registration Statement, and to be made
in the Prospectus and any further amendments or supplements to the Registration
Statement or Prospectus within the coverage of Rule 175(b) of the Rules and
Regulations under the Securities Act, including (but not limited to) any
statements with respect to future available cash or future cash distributions of
the Partnership or the anticipated ratio of taxable income to distributions was
made or will be made with a reasonable basis and in good faith. Notwithstanding
the foregoing, no representation or warranty is made as to information in or
omissions from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Partnership in writing
by or on behalf of any Underwriter expressly for use therein.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus and any Preliminary Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act or Exchange Act
and the Rules and Regulations thereunder, and none of such documents contained
any untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by reference in
the Registration Statement, the Prospectus and any Preliminary Prospectus,
respectively, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or Exchange Act and the Rules and Regulations
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) Each of the Partnership and the Operating Partnership has been duly
formed and is validly existing in good standing as a limited partnership under
the Delaware Revised Uniform Limited Partnership Act, as amended (the "Delaware
LP Act"), with full partnership power and authority to own or lease, as the case
may be, and to operate its properties and to conduct its business, in each case
in all material respects as described in the Registration Statement and
Prospectus, and is duly registered or qualified to do business as a foreign
limited partnership and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to so register or
qualify would not (i) have a material adverse effect on the condition (financial
or other), business, prospects, assets or results of operations of the
Partnership Group taken as a whole (a "Material Adverse Effect") or (ii) subject
the limited partners of the Partnership or the Operating Partnership to any
material liability or disability.
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(e) Each of the Subsidiaries has been, or in the case of Spectrum will
be prior to the First Delivery Date, duly organized and validly existing and in
good standing as a limited liability company under the laws of the jurisdiction
of its organization, with full power and authority to own or lease, as the case
may be, and to operate its respective properties and to conduct its business and
is duly registered or qualified to do business as a foreign limited liability
company and is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to so register or qualify
would not (i) have a Material Adverse Effect or (ii) subject the limited
partners of the Partnership or the Operating Partnership to any material
liability or disability.
(f) The General Partner has been duly formed and is validly existing in
good standing as a limited liability company under the Delaware Limited
Liability Company Act (the "Delaware LLC Act"), with full limited liability
company power and authority to own or lease, as the case may be, and to operate
its properties and to conduct its business and to act as general partner of the
Partnership and the Operating Partnership, and is duly registered or qualified
to do business as a foreign limited liability company and is in good standing
under the laws of each jurisdiction which requires such qualification, except
where the failure to so register or qualify would not (i) have a Material
Adverse Effect, or (ii) subject the limited partners of the Partnership or the
Operating Partnership to any material liability or disability.
(g) The General Partner is the sole general partner of the Partnership
with a 1.0101% general partner interest in the Partnership; such general partner
interest has been duly and validly authorized and issued in accordance with the
agreement of limited partnership of the Partnership (as the same may be further
amended or restated on or prior to any Delivery Date, the "Partnership
Agreement"); and the General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities, charges or
claims other than those created by or arising under the Delaware LP Act or the
Partnership Agreement.
(i) As of the date of the Prospectus, other than the Units to
be offered hereby and any rights to acquire Common Units and receive
distributions pursuant to Atlas Pipeline Partners Long-Term Incentive
Plan ("LTIP"), the Partnership has no limited partner interests issued
and outstanding other than the following:
(A) 1,641,026 Subordinated Units (as defined in the
Partnership Agreement) held by the General Partner (the
"Sponsor Units");
(B) the Incentive Distribution Rights (as defined in
the Partnership Agreement) held by the General Partner; and
(C) 3,463,659 Common Units issued to public
unitholders,
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all of such Sponsor Units, Incentive Distribution Rights, Common Units and
limited partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement and are fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Section 17-607 of the
Delaware LP Act); and the General Partner owns all of such Sponsor Units and
Incentive Distribution Rights free and clear of all liens, encumbrances,
security interests, equities, changes or claims, other than those arising under
Atlas America's Senior Secured Revolving Credit Facility, dated March 12, 2004
with Wachovia Bank (the "Atlas America Credit Facility")
(h) The Units to be issued and sold by the Partnership to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor in accordance with this Agreement will be
duly and validly issued, fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such nonassessability may
be affected by Section 17-607 of the Delaware LP Act); the Units conform to the
descriptions thereof contained in the Prospectus.
(i) The General Partner is the sole general partner of the Operating
Partnership, and subject only to the distribution rights of the Preferred Units,
has a 1.0101% partnership interest in the Operating Partnership; such interest
has been duly authorized and validly issued in accordance with the agreement of
limited partnership of the Operating Partnership (as the same may be further
amended or restated on or prior to any Delivery Date, the "Operating Partnership
Agreement"); and the General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(j) Subject only to the issuance of the Preferred Units and their
voting and distribution rights, the Partnership is the sole limited partner of
the Operating Partnership with a 98.9899% partnership interest in the Operating
Partnership; such interest has been duly authorized and validly issued in
accordance with the Operating Partnership Agreement and is fully paid (to the
extent required under the Operating Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Section 17-607 of the
Delaware LP Act); and the Partnership owns such limited partner interest free
and clear of all liens, encumbrances, security interests, equities, charges or
claims other than those arising under the Partnership's Revolving Credit and
Term Loan Agreement, dated as of July 16, 2004, with Wachovia Bank (the "Credit
Facility").
(k) At each Delivery Date, Atlas America, Inc. will own, through
wholly-owned subsidiaries, 100% of the member interests of the General Partner;
such member interests have been duly authorized and validly issued in accordance
with the limited liability company agreement of the General Partner (as the same
may be amended or restated at or prior to any Delivery Date, the "GP LLC
Agreement"), and are fully paid (to the extent required under the GP LLC
Agreement) and nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act) and Atlas America, Inc. will own all of
such member interests free and clear of any liens, encumbrances, security
interests, equities, charges or claims, other than those arising under the Atlas
America Credit Facility.
(l) At each Delivery Date, the Operating Partnership will own 100% of
the member interests of Spectrum; such member interests will have been duly
authorized and validly issued in accordance with the limited liability company
agreement of Spectrum (the "Spectrum LLC Agreement") and be fully paid (to the
extent required under the Spectrum LLC Agreement) and nonassessable (except as
such nonassessability may be affected by Section 18-607 of the Delaware LLC Act)
and will be owned by the Operating Partnership free and clear of any liens,
encumbrances, security interests, equities, charges or claims, other than those
arising under the Credit Facility.
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(m) The Partnership owns 100% of the member interests in APC LLC; such
member interests have been duly authorized and validly issued in accordance with
the limited liability company agreement of APC LLC (the "APC LLC Agreement") and
are fully paid (to the extent required under the APC LLC Agreement) and
nonassessable (except as such nonassessability may be affected by Section 18-607
of the Delaware LLC Act); and the Partnership owns such member interests free
and clear of any liens, encumbrances, security interests, equities, charges or
claims, other than those arising under the Credit Facility.
(n) The Operating Partnership owns 100% of the member interests of each
of Ohio LLC, Pennsylvania LLC and New York LLC; all such member interests have
been duly authorized, and validly issued in accordance with their respective
limited liability company agreements and are fully paid (to the extent required
by such limited liability company agreements) and nonassessable (except as such
nonassessability may be affected by Section 8931 of the Pennsylvania Limited
Liability Company Law of 1994, as amended (the "Pennsylvania LLC Law")); and the
Operating Partnership owns all of such member interests free and clear of any
liens, encumbrances, security interests, equities, charges or claims, other than
those arising under the Credit Facility.
(o) Except for (i) the Partnership's ownership of a 98.9899%
partnership interest in the Operating Partnership and a 100% member interest in
APC LLC, (ii) the Operating Partnership's ownership of 100% of the member
interests of Ohio LLC, Pennsylvania LLC and New York LLC, and (iii) after the
date of the Spectrum Acquisition, the Operating Partnership's ownership of 100%
of the member interest of Spectrum, neither the Partnership nor the Operating
Partnership will own at each Delivery Date, directly or indirectly, any equity
or long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity.
(p) Except for any such rights which have been effectively complied
with or waived and except for rights to acquire Common Units under the LTIP, (i)
no person has the right, contractual or otherwise, to cause the Partnership to
issue any partner interests in the Partnership or any equity interests in any
other Partnership Entity, (ii) there are no preemptive rights, resale rights,
rights of first refusal or other rights to purchase any partner interests in the
Partnership or any equity interests in any other Partnership Entity, nor any
restriction upon voting or transfer of any partnership or membership interests
in any of the Partnership Entities and (iii) no person has the right to act as
an underwriter, or as a financial advisor to the Partnership, in connection with
the offer and sale of the Units, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or the effectiveness of
the Registration Statement or the sale of the Units as contemplated thereby or
otherwise. Except for such rights that have been waived, neither the filing of
the Registration Statement nor the offering or sale of the Units as contemplated
by this Agreement gives rise to any rights for or relating to the registration
of any Units or other securities of the Partnership. Except as described in the
Prospectus, there are no outstanding options or warrants to purchase (A) any
Common Units, Subordinated Units, Incentive Distribution Rights or other
interests in the Partnership or (B) any interests in the General Partner, the
Operating Partnership, or any other member of the Partnership Group other than
rights to acquire Common Units and receive distributions pursuant to the LTIP.
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(q) The Partnership has all requisite power and authority to issue,
sell and deliver the Units, in accordance with and upon the terms and conditions
set forth in this Agreement, the Partnership Agreement, the Registration
Statement and the Prospectus. On each Delivery Date, all corporate, partnership
and limited liability company action, as the case may be, required to be taken
by the Atlas Parties or any of their partners or members for the authorization,
issuance, sale and delivery of the Units, the execution and delivery by Atlas
Parties of this Agreement and the consummation of the transactions contemplated
by this Agreement, shall have been validly taken.
(r) This Agreement has been duly authorized, executed and delivered by
the Atlas Parties, and constitutes the valid and legally binding agreement of
each of the Atlas Parties, enforceable against each of them in accordance with
its terms.
(s) The Partnership Agreement has been duly authorized, executed and
delivered and is a valid and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its terms.
(t) The Operating Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and the Partnership, and is a
valid and legally binding agreement of the General Partner and the Partnership,
enforceable against the General Partner and the Partnership in accordance with
its terms.
(u) Each of the limited liability company agreements of Ohio LLC,
Pennsylvania LLC and New York LLC has been duly authorized, executed and
delivered by the Operating Partnership and is a valid and legally binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms.
(v) The APC LLC Agreement has been duly authorized, executed and
delivered by the Partnership, and is a valid and legally binding agreement of
the Partnership, enforceable against the Partnership in accordance with its
terms.
(w) At the First Delivery Date, the Spectrum LLC Agreement will be duly
authorized, executed and delivered by the Operating Partnership and be a valid
and legally binding agreement of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms.
Provided that, with respect to each agreement described in clauses (r) through
(w) above, the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and provided, further, that the indemnity, contribution and
exoneration provisions contained in any of such agreements may be limited by
applicable laws and public policy.
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(x) None of the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement by the Atlas
Parties, or the consummation by the Atlas Parties of the transactions
contemplated hereby (i) conflicts or will conflict with or constitutes or will
constitute a breach or violation of the agreement of limited partnership,
limited liability company agreement, or other organizational documents of any of
the Partnership Entities, (ii) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default under (or an event which,
with notice or lapse of time or both, would constitute such an event), any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any of the Partnership Entities is a party or by which any
of them or any of their respective properties may be bound, (iii) violates or
will violate any statute, law or regulation or any order, judgment, decree or
injunction of any court or governmental agency or body having jurisdiction over
any of the Partnership Entities or any of their assets or properties in a
proceeding to which any of them or other property is a party or (iv) will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Partnership Entities, in the case of clauses
(ii), (iii) or (iv), which conflicts, breaches, violations or defaults would
have a Material Adverse Effect or would materially impair the ability of any of
the Atlas Parties to perform their obligations under this Agreement.
(y) Except as described in the Prospectus, there are no contracts,
agreements or understandings between any of the Partnership Entities and any
person granting such person the right to require the Partnership to file a
registration statement under the Securities Act with respect to any securities
of any member of the Partnership Group owned or to be owned by such person or to
require the Partnership to include such securities with the Units registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by any of the Partnership
Entities under the Securities Act.
(z) No Partnership Entity has sold or issued any Common Units during
the six-month period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act other
than Common Units issued pursuant to employee benefit plans, qualified options
plans or other employee compensation plans and other than the 750,000 Common
Units sold by the Partnership on April 14, 2004.
(aa) Neither the General Partner nor any member of the Partnership
Group nor Spectrum Field Services, Inc. has sustained, since the date of the
latest audited financial statements included in the Prospectus, any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capitalization or long-term debt of the General Partner or
Spectrum Field Services, Inc. or the capitalization or consolidated long-term
debt of the Partnership Group, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, consolidated financial position, securityholders'
equity, capitalization, results of operations, business or prospects of Spectrum
Field Services, Inc. or the Partnership Group, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus.
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(bb) The historical financial statements (including the related notes
and supporting schedules) included in the Registration Statement, the
Preliminary Prospectus, and the Prospectus (and any amendment or supplement
thereto) present fairly in all material respects the financial position, results
of operations and cash flows of the entities purported to be shown thereby at
the respective dates and for the respective periods indicated, comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act, and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved. The
selected historical financial data set forth in the Registration Statement, the
Preliminary Prospectus dated July 12, 2004, and the Prospectus (and any
amendment or supplement thereto) under the captions "Our Selected Historical
Financial and Operating Data" and "Spectrum's Selected Historical Financial
Data" is accurately presented in all material respects and prepared on a basis
consistent with the audited and unaudited historical consolidated financial
statements from which it has been derived. The unaudited pro forma financial
information (including the related notes) included in the Prospectus and any
Preliminary Prospectus complies in all material respects with the applicable
accounting requirements of Article 11 of Regulation S-X of the Commission; the
assumptions used in the preparation of such pro forma financial statements are,
in the opinion of the management of the Atlas Parties, reasonable; the pro forma
adjustments give appropriate effect to those assumptions; and the pro forma
adjustments reflected in such pro forma financial statements have been properly
applied to the historical amounts in compilation of such pro forma financial
statements; no other pro forma financial information is required to be included
in the Registration Statement or the Prospectus.
(cc) Xxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Partnership Group and Spectrum Field Services, Inc., and whose
reports are included and incorporated by reference in the Prospectus and who
have delivered the letter referred to in Section 7(e) hereof, are and have been,
during the periods covered by the financial statements on which they reported,
an independent registered public accounting firm as required by the Securities
Act and the Rules and Regulations.
(dd) Each of the Partnership Entities has (A) good and marketable title
to all of the properties and assets described in the Prospectus as owned by it,
free and clear of all liens, claims, security interests, charges, encumbrances,
defects and restrictions (except for (i) taxes not yet payable, (ii) as
described in the Prospectus and the financial statements included or
incorporated therein by reference and (iii) such liens, charges, encumbrances
and restrictions as do not detract from the value thereof and do not materially
interfere with the use thereof taken as a whole as such properties and assets
have been used in the past and are proposed to be used in the future). All
assets held under lease or license by the members of the Partnership Group are
held under valid, subsisting and enforceable leases or licenses, with such
exceptions (i) as are not material and do not interfere with the use made and
proposed to be made of such assets as they have been used as described in the
Prospectus or (ii) that would not have a material adverse effect on the
condition (financial or other), business, prospects, properties,
securityholders' equity or results of operations of the Partnership Group, taken
as a whole.
(ee) Each of the Partnership Entities carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for businesses engaged in similar businesses in similar
industries, and none of the Partnership Entities has received notice of
cancellation or non-renewal of such insurance.
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(ff) Each of the Partnership Entities own or possess adequate rights to
use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights and licenses
necessary for the conduct of their respective businesses and none of the
Partnership Entities are aware of any claim to the contrary or any challenge by
any other person to the rights of any of the Partnership Entities with respect
to the foregoing.
(gg) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which any of the Partnership Entities is a
party or of which any property or assets of any of the Partnership Entities is
the subject that are required to be described in the Registration Statement or
Prospectus but are not described as required; and to the best knowledge of the
Partnership Entities, no such proceedings are threatened by governmental
authorities or by others.
(hh) There are no contracts, agreements or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
thereunder which have not been described in the Prospectus or filed as exhibits
to the Registration Statement.
(ii) No relationship, direct or indirect, exists between or among any
member of the Partnership Group on the one hand, and the securityholders,
customers or suppliers of any member of the Partnership Group, the directors or
officers of the General Partner, or any affiliate of a member of the Partnership
Group, on the other hand, which is required to be described in the Prospectus,
which is not so described.
(jj) Except as described in the Prospectus, no labor disturbance by the
employees of any member of the Partnership Group (and to the extent they perform
services on behalf of any member of the Partnership Group, employees of Atlas
America, or any affiliate of Atlas America), exists or, to the knowledge of the
Partnership Entities, is imminent or threatened, which might be expected to have
a material adverse effect on the general affairs, management, consolidated
financial position, securityholders' equity, results of operations, business or
prospects of the Partnership Group, taken as whole.
(kk) The Partnership and the General Partner are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the General Partner or the Partnership would have any
liability; neither the Partnership nor the General Partner has incurred nor does
either expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
for which the General Partner or the Partnership would have any liability that
is intended to be qualified under Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified and nothing has occurred,
whether by action or by failure to act, which could reasonably be expected to
cause the loss of such qualification.
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(ll) Each of the Partnership Entities has filed (or has obtained
extensions with respect to) all tax returns required to be filed through the
date hereof, which returns are complete and correct in all material respects,
and has paid all taxes shown to be due pursuant to such returns, other than
those (i) which, if not paid, would not have a material adverse effect on the
condition (financial or other), business, prospects, properties,
securityholders' equity or results of operations of the Partnership Group, taken
as a whole, or (ii) which are being contested in good faith. No tax deficiency
has been determined adversely to any Partnership Entity which has had (nor do
the Atlas Parties have any knowledge of any tax deficiency which, if determined
adversely to any Partnership Entity, might have) a material adverse effect on
the consolidated (financial or other), business, prospects, properties,
securityholders' equity or results of operations of the Partnership Group, taken
as a whole.
(mm) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither the General Partner nor any member of the Partnership Group
has (i) issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid any
distributions.
(nn) The Partnership Entities (i) make and keep accurate books and
records and (ii) maintain internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of the Partnership's consolidated financial statements and to maintain
accountability for the Partnership's consolidated assets, (C) access to its
assets is permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing assets at
reasonable intervals.
(oo) None of the Partnership Entities (i) is in violation of its
certificate of limited partnership or agreement of limited partnership,
certificate of formation or limited liability company agreement or other
organizational or governing documents; (ii) is in breach or default in any
material respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a breach or default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject, (iii) is in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or (iv) has failed to obtain any
material license, permit, certificate, franchise or other governmental or
regulatory authorization or permit necessary to the ownership or leasing of its
property or to the conduct of its business, except in the case of clauses (ii)
and (iv) as would not have a material adverse effect on the condition (financial
or other), business, assets, results of operations of the Partnership Group,
taken as a whole.
(pp) No permit, consent, approval, certificate, authorization or order
of any person, court, governmental agency or body is required in connection with
the execution, delivery and performance of, or the consummation by any of the
Partnership Entities of the transactions contemplated by this Agreement except
(i) such permits, consents, approvals and similar authorizations required under
the Act, the Exchange Act and state securities or "Blue Sky" laws, (ii) such
permits, consents, approvals, certificates and similar authorizations which have
been, or prior to the Closing Time will be, obtained and (iii) such permits,
consents, approvals, certificates and similar authorizations which, if not
obtained, would not, individually or in the aggregate, have a Material Adverse
Effect.
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(qq) No Partnership Entity, nor any director, officer, agent, employee
or other person associated with or acting on behalf of any Partnership Entity
has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(rr) The Partnership Entities are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
releases of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not
individually or in the aggregate, have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus. None of the Partnership Entities has
been named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended.
(ss) Neither the General Partner nor any member of the Partnership
Group is, or, as of each Delivery Date after giving effect to the application of
the net proceeds as described in the Prospectus, will be, (i) an "investment
company" as defined in the Investment Company Act of 1940, as amended, or (ii) a
"public utility company" or "holding company" under the Public Utility Holding
Company Act of 1935, as amended.
(tt) Each of the Partnership Entities has such consents, easements,
rights-of-way, permits or licenses from each person (collectively,
"rights-of-way") as are necessary to conduct its business in the manner
described, and subject to the limitations contained, in the Prospectus, except
for (i) qualifications, reservations and encumbrances as may be set forth in the
Prospectus which are not reasonably expected to have a material adverse effect
upon the ability of the Partnership Group, taken as a whole, to conduct its
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted, and (ii) such rights-of-way the absence of
which would not, individually or in the aggregate, result in a Material Adverse
Effect; other than as set forth in the Prospectus, each of the Partnership
Entities has fulfilled and performed all its material obligations with respect
to such rights-of-way and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or would result in
any impairment of the rights of the holder of any such rights-of-way, except for
such revocations, terminations and impairments that would not (x) have a
material adverse effect upon the ability of the Partnership Group, taken as a
whole, to conduct its businesses in all material respects as currently conducted
and as contemplated by the Prospectus to be conducted or (y) individually or in
the aggregate, result in a Material Adverse Effect; and, except as described in
the Prospectus, none of such rights-of-way contains any restriction that is
materially burdensome to the Partnership Group, taken as a whole.
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(uu) Each of the Partnership Entities has such consents, licenses,
franchises and certificates of governmental or regulatory authorities
("permits") as are necessary to own or lease its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for such permits
that, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect and except for such permits that are of a routine or
administrative nature and that are expected in the reasonable judgment of the
General Partner to be obtained, as necessary, in the ordinary course of business
subsequent to the date hereof; each of the Partnership Entities has fulfilled
and performed all its material obligations with respect to such permits and no
event has occurred that would prevent such permits from being renewed or
reissued or that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results or would result in any impairment
of the rights of the holder of any such permit, except for such non-renewals,
non-issues, revocations, terminations and impairments that would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, prospects, properties,
securityholders' equity or results of operations of the Partnership Group taken
as a whole.
(vv) Except as disclosed in the Prospectus, none of the Partnership
Entities is subject to rate or terms of service regulation under federal or
state law.
(ww) The General Partner and the Partnership have established and
maintain disclosure controls and procedures (as such term is defined in Rule
13a-14 and 15d-14 under the Exchange Act); such disclosure controls and
procedures (i) are designed to ensure that material information relating to the
General Partner or the Partnership, including its consolidated subsidiaries, is
made known to the General Partner's and the Partnership's chief executive
officer and chief financial officer by others within those entities,
particularly during the periods in which the periodic reports under the Exchange
Act are being prepared; (ii) have been evaluated for effectiveness as of a date
within 90 days prior to the filing of the Partnership's most recent annual or
quarterly report filed with the Commission; and (iii) are effective in all
material respects to perform the functions for which they were established.
Based on the evaluation of its disclosure controls and procedures, the Atlas
Parties are not aware of (i) any significant deficiency in the design or
operation of internal controls which could adversely affect the Partnership's
ability to record, process, summarize and report financial data or any material
weaknesses in internal controls; or (ii) any fraud, whether or not material,
that involves management or other employees who would have a significant role in
the Partnership's internal controls. Since the date of the most recent
evaluation of such disclosure controls and procedures, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(xx) The Partnership has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in the form of
a personal loan made, directly or indirectly, by the General Partner, the
Partnership or any Subsidiary to any director of the General Partner or
executive officer of General Partner; and since July 30, 2002, neither the
General Partner nor the Partnership has directly or indirectly, including
through any subsidiary: (i) extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or for any
member of the managing board of the General Partner or executive officer of the
Partnership, or to or for any family member or affiliate of any member of the
managing board or executive officer of the General Partner; or (ii) made any
material modification, including any renewal thereof, to any term of any
personal loan to any member of the managing board or executive officer of the
General Partner, or any family member or affiliate of any member of the managing
board or executive officer, which loan was outstanding on July 30, 2002.
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(yy) Except for Anthem Securities, Inc., a wholly-owned subsidiary of
Atlas America, Inc., to the Partnership's and the General Partner's knowledge,
there are no affiliations or associations between any member of the NASD and any
of the General Partner's, the Partnership's or any Subsidiary's officers,
managing board members or 5% or greater securityholders, except as set forth in
the Registration Statement and the Prospectus.
(zz) Neither the Operating Partnership nor any Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the
Partnership, from making any other distribution on the Operating Partnership's
or such Subsidiary's equity, from repaying to the Partnership any loans or
advances to the Operating Partnership or such Subsidiary from the Partnership or
from transferring any of the Operating Partnership's or such Subsidiary's
property or assets to the Partnership or any other subsidiary of the
Partnership, except as described in the Registration Statement or the
Prospectus.
(aaa) Except as disclosed in the Registration Statement and the
Prospectus, none of the Partnership Entities (i) has any material lending or
other relationship with any bank or lending affiliate of the Underwriters and
(ii) intends to use any of the proceeds from the sale of the Units hereunder to
repay any outstanding debt owed to any affiliate of the Underwriters.
(bbb) Each certificate signed by or on behalf of any Partnership Entity
and delivered to the Underwriters or counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by such
Partnership Entity to the Underwriters as to the matters covered thereby.
Section 2. Purchase of the Units by the Underwriters.
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Partnership agrees
to sell 2,100,000 Firm Units to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the aggregate number
of Firm Units from the Partnership set forth opposite that Underwriter's name in
Schedule 1 hereto. The respective purchase obligations of the Underwriters with
respect to the Firm Units shall be rounded among the Underwriters to avoid
fractional units, as Xxxxxx Brothers Inc. may determine.
In addition, the Partnership grants to the Underwriters an option to
purchase up to an aggregate of 315,000 Option Units. Such option (the "Option")
is granted for the purpose of covering over-allotments in the sale of Firm Units
and is exercisable as provided in Section 4 hereof. The Option Units shall be
purchased severally for the account of the Underwriters in proportion to the
aggregate number of Firm Units set forth opposite the name of such Underwriters
in Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option shall be adjusted by Xxxxxx Brothers Inc. so that no
Underwriter shall be obligated to purchase Option Units other than in 100 Unit
amounts.
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The price of both the Firm Units and any Option Units shall be $33.1089
per Unit.
The Partnership shall not be obligated to deliver any of the Units to
be delivered on any Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Units to be purchased on such Delivery Date as
provided herein.
Section 3. Offering of Units by the Underwriters.
Upon authorization by Xxxxxx Brothers Inc. of the release of the Firm
Units, the several Underwriters propose to offer the Firm Units for sale upon
the terms and conditions set forth in the Prospectus.
Section 4. Delivery of and Payment for the Units.
Delivery of and payment for the Firm Units shall be made at the offices
of Xxxxxx & Xxxxxx L.L.P. beginning at 9:30 a.m., New York, New York time, on
the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between Xxxxxx Brothers
Inc. and the Partnership. This date and time are sometimes referred to as the
"First Delivery Date." On the First Delivery Date, the Partnership shall deliver
or cause to be delivered the Firm Units to Xxxxxx Brothers Inc. for the account
of each Underwriter in book entry form through the facilities of the Depository
Trust Company against payment to or upon the order of the Partnership of the
purchase price by wire transfer in immediately available funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder.
The Option granted in Section 2 will expire thirty (30) days after the
date of this Agreement and may be exercised in whole or in part from time to
time by written notice being given to the Partnership by Xxxxxx Brothers Inc.
Such notice shall set forth the aggregate number of Option Units as to which the
Option is being exercised, the names in which the Option Units are to be
registered, the denominations in which the Option Units are to be issued and the
date and time, as determined by Xxxxxx Brothers Inc., when the Option Units are
to be delivered; provided, however, that this date and time shall not be earlier
than the First Delivery Date nor earlier than the second business day after the
date on which the Option shall have been exercised nor later than the fifth
business day after the date on which the Option shall have been exercised. The
date and time the Option Units are delivered are sometimes referred to as a
"Second Delivery Date" and the First Delivery Date and any Second Delivery Date
are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Units shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Underwriters
and the Partnership) beginning at 9:30 a.m., New York, New York time, on such
Second Delivery Date. On such Second Delivery Date, the Partnership shall
deliver or cause to be delivered the Option Units to Xxxxxx Brothers Inc. for
the account of each Underwriter in book entry form through the facilities of the
Depository Trust Company against payment to or upon the order of the Partnership
of the purchase price by wire transfer in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder.
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Section 5. Further Agreements of the Atlas Parties.
Each the Atlas Parties covenants and agrees with each Underwriter:
(a) The Partnership will prepare the Prospectus in a form approved by
the Underwriters and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act. The Partnership will make no further amendment or any supplement
to the Registration Statement or to the Prospectus prior to the last Delivery
Date except as permitted herein and will advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof. The Partnership will file promptly all reports and other
documents required to be filed by it with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering and sale of the Units, and will advise the
Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Units for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information, and in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) The Partnership will furnish promptly to each of the Underwriters
and to counsel for the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith;
(c) The Partnership will deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and (ii)
each Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Units or any
other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, the
Partnership will notify the Underwriters and, upon their request, will prepare
and furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
16
(d) The Partnership will file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the reasonable judgment of the Partnership or the
Underwriters, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any prospectus pursuant to Rule
424 of the Rules and Regulations, the Partnership will furnish a copy thereof to
the Underwriters and counsel for the Underwriters and obtain the consent of the
Underwriters to the filing;
(f) As soon as practicable after the Effective Date, the Partnership
will make generally available to its securityholders and to deliver to the
Underwriters an earnings statement of the Partnership and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Partnership, Rule
158);
(g) For a period of two years following the Effective Date, the
Partnership will furnish to the Underwriters copies of all materials furnished
by the Partnership to its securityholders and all public reports and all reports
and financial statements furnished by the Partnership to the principal national
securities exchange or automated quotation system upon which the Units may be
listed pursuant to requirements of or agreements with such exchange or system or
to the Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder and such other information concerning the Partnership as
the Underwriters may reasonably request;
(h) The Partnership will from time to time take such action as the
Underwriters may reasonably request to qualify the Units for offering and sale
under the securities laws of such jurisdictions as you may request and comply
with such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the distribution
of the Units; provided that in connection therewith the Partnership shall not be
required to qualify as a foreign limited partnership where it is not now so
qualified or to file a general consent to service of process in any jurisdiction
where it is not now subject;
(i) The Atlas Parties will not, without the prior written consent of
Xxxxxx Brothers Inc., for a period of ninety (90) days from the date of the
Prospectus, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person at any time
in the future of) any Common Units or securities convertible into or
exchangeable for Common Units (other than Units issued pursuant to employee
benefit plans, qualified option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding options,
17
warrants or rights), or sell or grant options, rights or warrants with respect
to any Common Units or securities convertible into or exchangeable for Common
Units (other than the grant of options pursuant to option plans existing on the
date hereof and the sale of the Preferred Units in the Operating Partnership as
disclosed in the Preliminary Prospectus and the Prospectus), or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such Common
Units, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Units or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx Brothers
Inc. on behalf of the Underwriters; and will cause each person or entity listed
on Annex 1 to furnish to you, prior to the First Delivery Date, a letter or
letters, substantially in the form of Exhibit A hereto, pursuant to which each
such person shall agree not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any Common Units or securities convertible
into or exchangeable for Common Units or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Units, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, in each case
for a period of ninety (90) days from the date of the Prospectus, without the
prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters;
(j) The Partnership will apply for the supplemental listing of the
Units on the New York Stock Exchange, and will use its best efforts to complete
that listing, subject only to official notice of issuance, prior to the First
Delivery Date;
(k) The Partnership will apply the net proceeds from the offering of
the Units as set forth in the Prospectus;
(l) The Atlas Parties will take such steps as shall be necessary to
ensure that neither the General Partner nor any member of the Partnership Group
shall become (i) an "investment company" as defined in the Investment Company
Act of 1940, as amended, or (ii) a "public utility company" or "holding company"
under the Public Utility Holding Company Act of 1935, as amended; and
(m) The Atlas Parties will not, directly or indirectly, take any action
designed to or which constitutes or which might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Partnership to facilitate the sale or resale
of the Units.
Section 6. Expenses.
The Partnership agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Units and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement, any supplemental agreement
among Underwriters and any other related documents in connection with the
18
offering, purchase, sale and delivery of the Units; (e) the filing fees incident
to securing any required review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Units; (f) any applicable listing or
other fees; (g) the fees and expenses of qualifying the Units under the
securities laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) the cost of printing
certificates representing the Units and the costs and charges of any transfer
agent or registrar; (i) the costs and expenses of the Partnership relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Units, including, without limitation, expenses
associated with the production of road show slides and graphics, travel and
lodging expenses of the representatives and officers of the Partnership and the
cost of any aircraft chartered in connection with the road show; (j) the fees
and expenses of the Partnership's accountants and the fees and expenses of
counsel (including local and special counsel) for the Partnership; and (k) all
other costs and expenses incident to the performance of the obligations of the
Partnership under this Agreement; provided that, except as provided in this
Section 6 and in Sections 8 and 11, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Units which they may sell and the expenses of advertising any
offering of the Units made by the Underwriters.
Section 7. Conditions of Underwriters' Obligations.
The respective obligations of the Underwriters hereunder are subject to
the accuracy, when made and on each Delivery Date, of the representations and
warranties of the Atlas Parties contained herein, to the performance by the
Atlas Parties of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been disclosed to the Underwriters and complied with to their satisfaction.
(b) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Units, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Partnership shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) Ledgewood Law Firm, P.C. shall have furnished to the Underwriters
their written opinion, as counsel to the Partnership, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Underwriters with respect to the matters set forth in
Exhibit B to this Agreement.
(d) The Underwriters shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Units, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
reasonably require, and the Partnership shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
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(e) At the time of execution of this Agreement, the Underwriters shall
have received from Xxxxx Xxxxxxxx LLP a letter or letters, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated the
date hereof (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(f) With respect to the letter or letters of Xxxxx Xxxxxxxx LLP
referred to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial letter"), the
Partnership shall have furnished to the Underwriters a letter (the "bring-down
letter") of such accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(g) On each Delivery Date, the General Partner shall have furnished to
the Underwriters a certificate, dated such Delivery Date, of the Chairman of the
Managing Board, the President or a Vice President and the Chief Financial
Officer of the General Partner stating that:
(i) the representations, warranties and agreements of the
Atlas Parties contained in this Agreement are true and correct at and
as of such Delivery Date; the Atlas Parties have complied with all
their agreements and satisfied all the conditions contained herein; and
the conditions set forth in Sections 7(a), 7(h) and 7(i) have been
fulfilled; and
(ii) they have carefully examined the Registration Statement
and the Prospectus and (A) the Registration Statement and Prospectus do
not include any untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the case of the
Prospectus, in light of the circumstances under which the statements
were made, and (B) since the Effective Date no event has occurred which
is required to be set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
20
(h) None of the Partnership Entities shall have sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus (A) any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
shall have become a party to or the subject of any litigation, court or
governmental action, investigation, order or decree which is materially adverse
to the Partnership Entities or (B) since such date there shall not have been any
material adverse change in the partners' or members' capital, or short-term or
long-term debt of the Partnership Entities or any change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, operations, business, prospects, capitalization, management, financial
position, securityholders' equity or results of operations of the Partnership
Entities, taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (A) or
(B), makes it in the judgment of the Underwriters, impracticable or inadvisable
to proceed with the public offering or the delivery of the Units being delivered
on such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(i) Subsequent to the execution and delivery of this Agreement, if any
debt securities of any of the Partnership Entities are rated by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, (i) no
downgrading shall have occurred in the rating accorded such debt securities and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
securities of any of the Partnership Entities.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Partnership on
any exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such), including, without limitation, as a
result of terrorist activities after the date hereof, as to make it, in the
judgment of the Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Units being delivered on such Delivery Date
on the terms and in the manner contemplated in the Prospectus.
(k) The New York Stock Exchange, Inc. shall have approved the Units for
supplemental listing, subject only to official notice of issuance.
21
(l) On or prior to the First Delivery Date, pursuant to Section 5(i)
hereof, the General Partner shall have furnished to you a letter substantially
in the form of Exhibit A hereto from each of its securityholders, executive
officers and directors.
(m) The closing of the Spectrum Acquisition shall have occurred prior
to the First Delivery Date.
(n) The Credit Facility will have closed prior to the First Delivery
Date and the terms of the Credit Facility will not be materially different from
those set forth in the Prospectus.
(o) The Partnership Entities shall have furnished the Underwriters such
additional documents and certificates as the Underwriters or counsel for the
Underwriters may reasonably request.
All opinions, letters, documents, evidence and certificates mentioned
above or elsewhere in this Agreement shall be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to the
Underwriters and to counsel for the Underwriters.
Section 8. Indemnification and Contribution.
(a) The Atlas Parties, jointly and severally, shall indemnify and hold
harmless each Underwriter, the directors, officers and employees of each
Underwriter, and any person who controls any Underwriter within the meaning of
the Securities Act or the Exchange Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Units), to which that Underwriter, director, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (B) in
any written or electronically produced materials or information provided
electronically to investors by, or with the approval of, the Partnership in
connection with the marketing of the offering of the Units, including any
roadshow or investor presentations made to investors by the Partnership, whether
in person or electronically (the "Marketing Materials"), (ii) the omission or
alleged omission to state in the Registration Statement, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the omission or alleged
omission to state in any Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iv) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner to, the
Units or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i), (ii) or (iii) above (provided that the
Atlas Parties shall not be liable under this clause (iv) to the extent that it
is determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
22
its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such director, officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Atlas Parties shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, in reliance upon and
in conformity with written information concerning such Underwriter furnished to
the Partnership by or on behalf of any Underwriter specifically for inclusion
therein which information consists solely of the information specified in
Section 8(e). The foregoing indemnity agreement is in addition to any liability
which the Atlas Parties may otherwise have to any Underwriter or to any
director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Atlas Parties, their employees, the officers and directors of
the General Partner, and any person who controls the Atlas Parties within the
meaning of the Securities Act or the Exchange Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Atlas Parties or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
in the Registration Statement, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) the omission or alleged omission to state in
any Preliminary Prospectus, the Prospectus or in any amendment or supplement
thereto any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Partnership by
or on behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Atlas Parties and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Atlas Parties or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the Atlas
Parties or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
23
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriters shall have the right to employ counsel to represent jointly the
Underwriters and their respective directors, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the Atlas Parties
under this Section 8 if, in the reasonable judgment of the Underwriters, it is
advisable for the Underwriters, and those directors, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel (plus local counsel if
necessary) shall be paid by the Atlas Parties. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Sections 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Atlas
Parties, on the one hand, and the Underwriters on the other, from the offering
of the Units or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Atlas Parties, on the one hand, and the Underwriters on the other,
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Atlas Parties,
on the one hand, and the Underwriters on the other, with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Units purchased under this Agreement (before deducting
expenses) received by the Partnership, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the Units purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Units under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Partnership or the
24
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Atlas Parties and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Units
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Atlas Parties
acknowledge that the table of underwriters on page S-59, the first paragraph
under the subheading "Commissions and Expenses" on page S-59, the second
paragraph under the subheading "Lock-up Agreements," and the first paragraph,
the last sentence under the second paragraph and the third paragraph under the
subheading "Stabilization, Short Positions and Penalty Bids" on page S-60 and
the information under the subheading "Affiliations" on page S-61 all under the
caption "Underwriting" in the Prospectus constitute the only information
concerning such Underwriters furnished in writing to the Partnership by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
Section 9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Units which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of the Firm Units set opposite the
name of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to
the total number of Firm Units set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Units on such Delivery Date if the total number of the Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Units to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of Units which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
25
underwriters satisfactory to the non-defaulting Underwriters who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Units to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
non-defaulting Underwriters do not elect to purchase the Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase, and of the Partnership to sell, the
Option Units) shall terminate without liability on the part of any
non-defaulting Underwriter or the Atlas Parties, except that the Atlas Parties
will continue to be liable for the payment of expenses to the extent set forth
in Sections 6 and 11. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Firm Units which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Atlas Parties for damages, including expenses paid
by the Partnership pursuant to Sections 6 and 11, caused by its default. If
other Underwriters are obligated or agree to purchase the Units of a defaulting
or withdrawing Underwriter, either the non-defaulting Underwriters or the
Partnership may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Partnership
or counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
Section 10. Termination.
The obligations of the Underwriters hereunder may be terminated by the
Underwriters by notice given to and received by the Partnership prior to
delivery of and payment for the Firm Units if, prior to that time, any of the
events described in Sections 7(h) or 7(i) shall have occurred or if the
Underwriters shall decline to purchase the Units for any reason permitted under
this Agreement.
Section 11. Reimbursement of Underwriters' Expense.
If the Partnership shall fail to tender the Units for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of any
of the Atlas Parties to perform any agreement on their part to be performed, or
because any other condition of the Underwriters' obligations hereunder required
to be fulfilled by any of the Atlas Parties is not fulfilled, the Atlas Parties
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Units, and upon
demand the Atlas Parties shall pay the full amount thereof to the Underwriters.
If this Agreement is terminated pursuant to Section 9 by reason of the default
of one or more Underwriters, the Atlas Parties shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
26
Section 12. Notices.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxx Brothers Inc., Syndicate Registration
Department, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Fax:
000-000-0000), with a copy, in the case of any notice pursuant to Section 8(c),
to the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
(b) if to the Atlas Parties, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Partnership set forth in the
Registration Statement, Attention: President, Atlas Pipeline Partners GP, LLC
(Fax: (000) 000-0000).
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Atlas Parties shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of the
Underwriters.
Section 13. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Atlas Parties and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Atlas Parties contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the General
Partner, the officers of the General Partner who have signed the Registration
Statements and any person controlling the General Partner within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
Section 14. Survival.
The respective indemnities, representations, warranties and agreements
of the Atlas Parties and the Underwriters contained in this Agreement or made by
or on behalf on them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Units and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
27
Section 15. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means each Monday,
Tuesday, Wednesday, Thursday or Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close and (b) "subsidiary" has the meaning set forth in Rule
405 of the Rules and Regulations.
Section 16. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
Section 18. Headings.
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Agreement.
[Signature Pages to Follow]
28
If the foregoing correctly sets forth the agreement among the Atlas
Parties and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ATLAS PIPELINE PARTNERS, L.P.
By: Atlas Pipeline Partners GP LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
ATLAS PIPELINE PARTNERS GP, LLC
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
ATLAS PIPELINE OPERATING PARTNERSHIP, L.P.
By: Atlas Pipeline Partners GP, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
Accepted:
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
KEYBANC CAPITAL MARKETS
a Division of McDonald Investments Inc.
XXXXXXX XXXXXX XXXXXX INC.
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Authorized Representative
SCHEDULE 1
Number of
Underwriters Firm Units
------------ ----------
Xxxxxx Brothers Inc.................................... 1,050,000
X.X. Xxxxxxx & Sons, Inc............................... 462,000
Friedman, Billings, Xxxxxx & Co., Inc.................. 336,000
KeyBanc Capital Markets................................ 126,000
Xxxxxxx Xxxxxx Xxxxxx Inc.............................. 126,000
=========
Total.................................................. 2,100,000
