ATLAS PIPELINE PARTNERS, L.P.
1,725,000 Common Units
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
January __, 2000
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
McDONALD INVESTMENTS
as Representatives of the Several Underwriters named in Schedule I hereto
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 00XX Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Ladies & Gentlemen:
Atlas Pipeline Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell (the "Offering") an aggregate of
1,500,000 common units (the "Firm Units") representing limited partner interests
in the Partnership (the "Common Units") to the several underwriters named in
Schedule I hereto (the "Underwriters"), upon the terms and conditions set forth
in Section 2 hereof. The Partnership also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an additional
225,000 Common Units (the "Additional Units"). The Firm Units and the Additional
Units are hereinafter collectively referred to as the "Units."
The Partnership was formed to acquire, own and operate intrastate
natural gas pipeline gathering systems in Eastern Ohio, Western Pennsylvania and
Western New York owned, directly or indirectly, by Atlas America, Inc., a
Pennsylvania corporation ("Atlas America"), Resource Energy, Inc., a Delaware
corporation ("REI"), Viking Resources Corporation, a Pennsylvania corporation
("Viking"), AIC, Inc., a Delaware corporation ("AIC"), St. Julien III
Corporation, a Pennsylvania corporation ("St. Julien"), Resource America, Inc.,
a Delaware corporation ("RAI"), Atlas Energy Group, Inc., an Ohio corporation
("AEG") and REI-NY, Inc., a New York corporation ("REI-NY") (each individually
an "Atlas Entity" and collectively, the "Atlas Entities"). Atlas Pipeline
Partners GP, LLC, a Delaware limited liability company, will serve as the
general partner (the "General Partner") of each of the Partnership and Atlas
Pipeline Operating Partnership, L.P., a Delaware limited partnership (the
"Operating Partnership").
Atlas America, REI and Viking represent and warrant that, prior to the
date hereof, the following transactions occurred:
(a) AIC contributed to Atlas Pipeline Pennsylvania, LLC, a
Pennsylvania limited partnership ("PA LLC") all of the issued and outstanding
capital stock of Xxxxxx Gas Gathering, Inc., a Pennsylvania corporation
("Mercer"), in exchange for ___% of the member interests in PA LLC.
(b) Mercer was merged with and into PA LLC.
(c) Viking contributed its Pennsylvania gas gathering system
to PA LLC in exchange for ___% of the member interests in PA LLC and the
assumption by PA LLC of the related, qualified debt.
(d) AEG contributed to PA LLC the Jefferson portion of the
Xxxxxx County gas gathering system and miscellaneous related segments in
exchange for a ___% member interest in PA LLC.
(e) St. Julien divided St. Julien into St. Julien
Acquisitioncorp II, Inc., a Pennsylvania corporation ("Columbiana Mergerco") and
St. Julien with Columbiana Mergerco being allocated the Columbiana gathering
system and any related, qualified debt and St. Julien being allocated all other
assets and debt of St. Julien.
(f) Columbiana Mergerco was merged with and into Atlas
Pipeline Ohio LLC, a Pennsylvania limited liability company ("OH LLC").
(g) RAI conveyed its interest in the Shongum gathering system
and certain miscellaneous rights-of-way to OH LLC in exchange for a ___% member
interest in OH LLC issued to REI.
(h) REI contributed the Springcreek gathering system to PA LLC
in exchange for a ___% member interest in PA LLC and the assumption by PA LLC of
the related, qualified debt and contributed the Shongum gathering system to OH
LLC in exchange for a ___% member interest in OH LLC and the assumption by OH
LLC of the related, qualified debt.
(i) AEG contributed the Champion and Xxxxxxx gathering systems
and certain miscellaneous rights-of-way to OH LLC in exchange for a ____% member
interest in OH LLC and the assumption by OH LLC of the related, qualified debt.
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(j) Viking contributed its Ohio gathering systems to OH LLC in
exchange for a __% member interest in OH LLC and the assumption by OH LLC of the
related, qualified debt.
(k) REI-NY contributed to Atlas Pipeline New York LLC, a
Pennsylvania limited liability company ("NY LLC"), all of its gathering systems
in exchange for a ___% member interest in NY LLC and the assumption by NY LLC of
the related, qualified debt.
(l) RAI contributed to NY LLC certain miscellaneous rights of
way in exchange for a ___% member interest in NY LLC issued to REI.
(m) REI, AEG and Viking each contributed all their member
interests in OH LLC to the General Partner in exchange for __%, __% and __%
member interests, respectively, in the General Partner.
(n) AIC, Viking, REI and AEG contributed all of their member
interests in PA LLC to the General Partner in exchange for __%, __%,__% and __%
member interests, respectively, in the General Partner.
(o) REI-NY contributed all of its member interests in NY LLC
to the General Partner in exchange for a __% member interest in the General
Partner.
(p) The General Partner contributed $10 to the Partnership in
exchange for a 1% general partner interest and REI contributed $990 in exchange
for a 99% limited partner interest in the Partnership.
(q) The General Partner contributed $10 to the Operating
Partnership in exchange for a 1% general partner interest and the Partnership
contributed $990 in exchange for a 99% limited partner interest in the Operating
Partnership.
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It is understood and agreed by all parties that the following
transactions will occur on the Closing Date: (i) The General Partner will
contribute all of its member interests in OH LLC, PA LLC and NY LLC (which are
sometimes referred to herein collectively as the "Operating LLCs") to the
Operating Partnership in exchange for (a) an additional general partner interest
in the Operating Partnership, (b) a limited partner interest in the Operating
Partnership and (c) the right to receive $6.4 million in cash (the "Cash
Right"); (ii) the General Partner will contribute its limited partner interest
in the Operating Partnership to the Partnership in exchange for a 1% general
partner interest in the Partnership, 1,641,026 units representing subordinated
limited partner interests in the Partnership (the "Subordinated Units"),
representing an approximately 51% interest in the Partnership and the Incentive
Distribution Rights (as defined in the Agreement of Limited Partnership of the
Partnership (as the same may be amended or restated at or prior to the Closing
Date, the "Partnership Agreement") between the General Partner and ____________,
as organizational limited partner (in such capacity, the "Organizational Limited
Partner")); (iii) subject to the provisions of this Agreement, the public
offering of the Firm Units contemplated hereby will be consummated; (iv) the
Partnership will contribute the proceeds from the public offering to the
Operating Partnership in exchange for an additional limited partner interest in
the Operating Partnership; (v) the Operating Partnership will use the cash
proceeds from the offering to (a) pay expenses of the Offering, (b) satisfy the
Cash Right received by the General Partner, (c) contribute capital to OH LLC and
NY LLC to fund the acquisition of gathering systems from the 1989 Partnership
Income Program ("1989 P/S") and the 1990 Partnership Income Program ("1990 P/S")
for $.4 million and $.2 million, respectively, and Ohio LLC and NY LLC will
consummate such acquisitions, (d) create working capital and (e) contribute
capital to the Operating LLCs to satisfy all indebtedness assumed by such
entities in connection with the acquisition of the gathering systems, and such
entities will repay such indebtedness; (vi) the General Partner or Atlas
America, Viking and REI will deliver an irrevocable letter of credit in favor of
the Partnership as described in the Prospectus (as defined below) to support the
General Partner's obligation under the Distribution Support Agreement (as
defined below); and (vii) Atlas America, REI, Viking, the Partnership and the
Operating Partnership will enter into the Master Gathering Agreement and the
Omnibus Agreement (each as defined below).
The conveyances and mergers described in clauses (a) - (q) above and
the transactions described above in clauses (i) through (x) are collectively
referred to as the "Transactions." In connection with the consummation of the
Transactions, the Partnership, the Operating Partnership, the General Partner
(each individually an "Atlas Party" and collectively, the "Atlas Parties"), the
Operating LLCs and the Atlas Entities will enter into various bills of sale,
assignment and assumption agreements, merger agreements, deeds and other
instruments of assignment and conveyance (collectively, the "Conveyance
Agreements").
Atlas America and the Atlas Parties wish to confirm as follows their
agreement with you (the "Representatives") and the several other Underwriters on
whose behalf you are acting, in connection with the several purchases of the
Units by the Underwriters.
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1. Registration Statement and Prospectus. The Partnership has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (Commission File No.
333-85193) (the "Registration Statement"), including a prospectus subject to
completion relating to the Units. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If it is contemplated, at
the time this Agreement is executed, that a registration statement or a
post-effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d)
under the Act before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement includes such registration
statement. The term "Prospectus" as used in this Agreement means the prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance on Rule
430A under the Act and such information is included in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the preliminary prospectus dated ___________, 2000, relating to the Common Units
as such preliminary prospectus shall have been amended from time to time prior
to the date of the Prospectus.
2. Agreements to Sell and Purchase. The Partnership hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of Atlas America, REI, Viking and the Atlas Parties herein contained
and subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Partnership, at a
purchase price of $_____ per Unit (the "purchase price per Unit"), the number of
Firm Units set forth opposite the name of such Underwriter in Schedule I hereto
(or such number of Firm Units increased as set forth in Section 10 hereof).
The Partnership also agrees, subject to all the terms and conditions
set forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of Atlas America, REI, Viking and the
Atlas Parties herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Partnership, at the purchase price per Unit, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 7:00 p.m., New York City time, on the 30th day after the date of
the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday,
on the next business day thereafter when the American Stock Exchange is open for
trading), up to an aggregate of 225,000 Additional Units. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Units.
Upon any exercise of the over-allotment option, each Underwriter, severally and
not jointly, agrees to purchase from the Partnership the number of Additional
Units (subject to such adjustments as you may determine in order to avoid
fractional Units) which bears the same proportion to the number of Additional
Units to be purchased by the Underwriters as the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Units increased as set forth in Section 10 hereof) bears to the aggregate
number of Firm Units.
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3. Terms of Public Offering. The Partnership has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Units as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Units upon the terms set forth in the Prospectus.
4. Delivery of the Units and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Units shall be made at the offices of
Friedman, Billings, Xxxxxx & Co., Inc. located at Potomac Tower, 0000 00xx
Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, at 10:00 a.m., New York City time, on
January __, 2000 (the "Closing Date"). The place of closing for the Firm Units
and the Closing Date may be varied by agreement between you and the Partnership.
Delivery to the Underwriters of and payment for any Additional Units to
be purchased by the Underwriters shall be made at the aforementioned office at
such time on such date (the "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the Partnership of the Underwriters' determination
to purchase a number, specified in such notice, of Additional Units. The place
of closing for any Additional Units and the Option Closing Date for such Units
may be varied by agreement between you and the Partnership.
Certificates for the Firm Units and for any Additional Units to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 5:00 p.m., New York City time, on the third
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in Arlington, VA for
inspection and packaging not later than 11:30 a.m., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Units and any Additional Units
to be purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase price
therefor in immediately available funds.
5. Agreements of the Partnership and the General Partner. The
Partnership and the General Partner agree with the several Underwriters as
follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Units may commence,
the Partnership and the General Partner will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing when the Registration Statement or such post-effective
amendment has become effective.
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(b) The Partnership will advise you promptly and, if requested
by you, will confirm such advice in writing: (i) when any amendments to the
Registration Statement become effective; (ii) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Units for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; (iv) of the receipt of any comments from the Commission and (v)
within the period of time referred to in paragraph (f) below, of the happening
of any event which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other applicable law. If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Partnership and the General Partner will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Partnership will furnish to you, without charge, (i)
two XXXXX versions of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the Registration Statement, (ii) two manually signed copies of the
registration statement corresponding to the XXXXX version filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the Registration Statement, and (iii) such number of conformed
copies of the Registration Statement as originally filed and of each amendment
thereto, but without exhibits, as you or your counsel may reasonably request.
(d) The Partnership will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you or your counsel
shall reasonably object in writing after being so advised or (ii) so long as, in
the opinion of counsel for the Underwriters, a Prospectus is required to be
delivered in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Partnership has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Partnership consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the Units
are offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Partnership.
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(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Partnership
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. At any time after nine months after the time of
issuance of the Prospectus, upon request, but at your expense, the Partnership
will deliver as many copies of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act as you may reasonably request, provided that a
prospectus is required by the Act to be delivered in connection with sales of
Units by any Underwriter or dealer. The Partnership consents to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by the several Underwriters and by
all dealers to whom Units may be sold, both in connection with the offering and
sale of the Units and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the
judgment of the Partnership or in the opinion of counsel for the Underwriters is
required to be set forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the Prospectus to comply with the Act or any
other law, the Partnership will forthwith prepare and, subject to the provisions
of paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto, and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof; provided that, if any such event
necessitating a supplement or amendment to the Prospectus occurs at any time
after nine months after the time of issuance of the Prospectus, such supplement
or amendment shall be prepared at your expense. In the event that the
Partnership and you, as Representatives of the several Underwriters, agree that
the Prospectus should be amended or supplemented, the Partnership, if requested
by you, will promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Partnership and the General Partner will cooperate
with you and with counsel for the Underwriters in connection with the
registration or qualification of the Units for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as you may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall any Atlas Party
be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to service of process
in suits, other than those arising out of the offering or sale of the Units, in
any jurisdiction where it is not now so subject.
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(h) The Partnership will make generally available to its
unitholders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as soon
as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of two years hereafter, the Partnership
will furnish to you (i) as soon as publicly available, a copy of each report of
the Partnership mailed to unitholders or filed with the Commission or the
principal national securities exchange or automated quotation system upon which
the Units may be listed, and (ii) from time to time such other information
concerning the Partnership as you may reasonably request.
(j) The Partnership will apply the net proceeds from the sale
of the Units and the Operating Partnership will apply all amounts contributed to
it by the Partnership from the sale of the Units in accordance with the
description set forth under the caption "Use of Proceeds" in the Prospectus.
(k) If Rule 430A of the Act is employed, the Partnership will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise
you of the time and manner of such filing.
(l) Except as provided in this Agreement, (i) the Partnership
will not (a) offer, sell, contract to sell or otherwise dispose of any Common
Units, any securities that are convertible into, or exercisable or exchangeable
for, or that represent the right to receive, Common Units or any securities that
are senior to or pari passu with Common Units, or (b) grant any options or
warrants to purchase Common Units or Subordinated Units for a period of 180 days
after the date of the Prospectus without your prior written consent, except for
the issuance and transfer of Common Units and Subordinated Units to occur upon
the closing of the Offering described in the Prospectus and the issuance of
Common Units pursuant to Article 4 of the Partnership Agreement and Section ___
of the Omnibus Agreement and (ii) except as provided in the Prospectus, the
General Partner will not offer, sell, contract to sell or otherwise dispose of
any Subordinated Units, any securities that are convertible into, or exercisable
or exchangeable for, or that represent the right to receive, Common Units or
Subordinated Units or any securities that are senior to or pari passu with
Common Units for a period of two (2) years after the date of the Prospectus
without your prior written consent.
(m) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Atlas Parties have not taken, and will not take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Common Units to facilitate the sale or resale of the Units.
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(n) The Partnership shall fully comply in a timely manner with
all provisions of the Act and the Exchange Act, including the rules and
regulations thereunder, in order to permit the completion of the distribution of
the Units as contemplated hereby, and the registration of the Units under the
Exchange Act.
(o) The General Partner and the Partnership will cause each of
the Atlas Entities, the Operating Partnership and the Operating LLCS to
accomplish or obtain as soon as practicable all consents, recordings and
filings, and enforce all rights under the Conveyance Agreements, necessary or
appropriate to perfect, preserve and protect the title of the Operating LLCs to
the properties and assets owned by them as a result of the Transactions, except
where the failure to obtain such consents recordings or filings or to perfect,
preserve and protect such title would not have a Material Adverse Effect (as
defined below).
6. Representations and Warranties of the Atlas Parties. Atlas America,
REI, Viking, and the Atlas Parties, jointly and severally, represent and warrant
to each Underwriter that:
(a) Any Prepricing Prospectus, at the date of filing thereof
with the Commission, complied in all material respects with the requirements of
the Act and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus. The Registration Statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act complied or will comply in all
material respects with the provisions of the Act and did not or will not at any
such times 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. Each of the statements made by the Partnership in such
documents within the coverage of Rule 175(b) of the rules and regulations under
the 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 statements in or omissions from the
Registration Statement, the Prospectus or any Prepricing Prospectus made in
reliance upon and in conformity with information furnished to the Partnership in
writing by or on behalf of any Underwriter through you expressly for use therein
(that information being limited to that described in Section 12 hereof).
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(b) The Partnership has been duly formed and is validly
existing and in good standing as a limited partnership under the Delaware
Revised Uniform Limited Partnership Act (the "Delaware LP Act") with full power
and authority to own or lease its properties to be owned or leased at the
Closing Date, after giving effect to the Transactions, and to conduct its
business to be conducted at the Closing Date, in each case as described in the
Registration Statement and the Prospectus. The Partnership is, or at the Closing
Date will be, duly registered or qualified as a foreign limited partnership for
the transaction of business under the laws of each jurisdiction in which, after
giving effect to the Transactions, the character of the business conducted by it
or the nature or location of the properties owned or leased by it makes such
registration or qualification necessary, except where the failure so to register
or qualify would not (i) have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Atlas Parties and the Operating LLCs, taken as a whole (a
"Material Adverse Effect") or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(c) The Operating Partnership has been duly formed and is
validly existing and in good standing as a limited partnership under the
Delaware LP Act with full partnership power and authority to own or lease its
properties to be owned or leased at the Closing Date, after giving effect to the
Transactions, and to conduct its business to be conducted at the Closing Date,
in each case as described in the Registration Statement and the Prospectus. The
Operating Partnership is, or at the Closing Date will be, duly registered or
qualified as a foreign limited partnership for the transaction of business under
the laws of each jurisdiction in which, after giving effect to the Transactions,
the character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a Material Adverse Effect, or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(d) The General Partner has been duly formed and is a limited
liability company validly existing and in good standing under the laws of the
State of Delaware with full company power and authority to own or lease its
properties to be owned or leased at the Closing Date, after giving effect to the
Transactions, to conduct its business to be conducted at the Closing Date and to
act as general partner of the Partnership and the Operating Partnership, in each
case in all material respects as described in the Registration Statement and the
Prospectus. The General Partner is duly registered or qualified as a foreign
limited liability company for the transaction of business under the laws of each
jurisdiction in which, after giving effect to the Transactions, the character of
the business conducted by it or the nature or location of the properties owned
or leased by it makes such registration or qualification necessary, except where
the failure so to register or qualify would not (i) have a Material Adverse
Effect, or (ii) subject the limited partners of the Partnership to any material
liability or disability.
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(e) Each of the Operating LLCs has been duly formed and is a
limited liability company validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania with full company power and authority to own
or lease its properties to be owned or leased at the Closing Date, after giving
effect to the Transactions, to conduct its business to be conducted at the
Closing Date, to assume and perform the liabilities being assumed by it pursuant
to the Conveyance Agreements and to conduct its business to be conducted at the
Closing Date, in each case after giving effect to the Transactions and in all
material respects as described in the Registration Statement and the Prospectus.
Each of the Operating LLCs is duly registered or qualified as a foreign limited
liability company for the transaction of business under the laws of each
jurisdiction in which, after giving effect to the Transactions, the character of
the business conducted by it or the nature or location of the properties owned
or leased by it makes such registration or qualification necessary, except where
the failure so to register or qualify would not (i) have a Material Adverse
Effect, or (ii) subject the limited partners of the Partnership to any material
liability or disability.
(f) Each of Atlas America, REI, AIC, AEG, Viking and REI-NY
has been duly formed and is a corporation validly existing and in good standing
under the laws of the state of its incorporation with full corporate power and
authority to own or lease its properties to be owned or leased at the Closing
Date, after giving effect to the Transactions, to conduct its business to be
conducted at the Closing Date, to assume and perform the liabilities being
assumed by it pursuant to the Conveyance Agreements and to conduct its business
to be conducted at the Closing Date, in each case in all material respects as
described in the Registration Statement and the Prospectus. Each of Atlas
America, REIand Viking is duly registered or qualified as a foreign corporation
for the transaction of business under the laws of each jurisdiction in which,
after giving effect to the Transactions, the character of the business conducted
by it or the nature or location of the properties owned or leased by it makes
such registration or qualification necessary, except where the failure so to
register or qualify would not (i) have a Material Adverse Effect, or (ii)
subject the limited partners of the Partnership to any material liability or
disability.
(g) At the Closing Date and the Option Closing Date, after
giving effect to the Transactions, the General Partner will be the sole general
partner of the Partnership with a 1.0101% general partner interest in the
Partnership; its general partner interest will be duly authorized and validly
issued in accordance with the Partnership Agreement; the General Partner will
own all of the Incentive Distribution Rights; such Incentive Distribution Rights
will be duly authorized and validly issued in accordance with the Partnership
Agreement; and, except for liens securing any commercial bank or institutional
lender to Atlas America or any of its Affiliates, (the "Permitted Encumbrances")
the General Partner will own such general partner interest and Incentive
Distribution Rights free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
12
(h) At the Closing Date, after giving effect to the
Transactions, the General Partner will own limited partner interests in the
Partnership represented by 1,641,026 Subordinated Units; such Subordinated Units
and the limited partner interests represented thereby will be duly authorized
and validly issued in accordance with the Partnership Agreement, and will be
fully paid and nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and, except for Permitted Encumbrances the
General Partner will hold its limited partner interests represented by its
Subordinated Units free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(i) At the Closing Date, there will be issued to the
Underwriters the Firm Units (assuming no purchase by the Underwriters of
Additional Units); at the Closing Date or the Option Closing Date, as the case
may be, the Firm Units or the Additional Units, as the case may be, and the
limited partner interests represented thereby will be duly authorized by the
Partnership Agreement and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and other than the Subordinated Units and
Incentive Distribution Rights owned by the General Partner as set forth above,
the Units will be the only limited partner interests of the Partnership issued
and outstanding at the Closing Date or the Option Closing Date.
(j) At the Closing Date and the Option Closing Date, after
giving effect to the Transactions, the General Partner will own a 1.0101%
general partner interest in the Operating Partnership and the Partnership will
own a 98.9899% limited partner interest in the Operating Partnership; such
interests will have been duly authorized and validly issued in accordance with
the Partnership Agreement of the Operating Partnership (as the same may be
amended and restated at or prior to the Closing Date, the "Operating Partnership
Agreement" and together with the Partnership Agreement, the "Partnership
Agreements") and will be fully paid (to the extent required under the Operating
Partnership Agreement) and the limited partnership interest will be
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the General Partner and the Partnership will
own such interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
13
(k) At the Closing Date and the Option Closing Date, after
giving effect to the Transactions, the Atlas Entities will collectively own 100%
of the member interests in the General Partner; such member interests will have
been duly authorized and validly issued and will be fully paid and
nonassessable; and, except for Permitted Encumbrances, such entities will own
such member interests free and clear of all liens, encumbrances, security
interest, equities, charges or claims.
(l) At the Closing Date and the Option Closing Date, after
giving effect to the Transactions, except for (i) the General Partner's general
partner interest in the Partnership and the Operating Partnership, (ii) the
General Partner's limited partner interest in the Partnership, (iii) the
Partnership's limited partner interest in the Operating Partnership, and (iv)
the Operating Partnership's member interests in the Operating LLCs, none of the
Atlas Parties will own, directly or indirectly, any equity or long term debt
securities of any person, or have any membership, participation or other
interest in any firm, partnership, limited liability company, joint venture,
association or other entity.
(m) Except as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any limited partner interests in the
Partnership or the Operating Partnership pursuant to either the Partnership
Agreement or the Operating Partnership Agreement, respectively, or any agreement
or other instrument to which the Partnership or the Operating Partnership is a
party or by which either of them may be bound. Except as described in the
Prospectus, 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 or the Operating Partnership under the Act. Except as described in
the Prospectus, there are no outstanding options or warrants to purchase any
Common Units or Subordinated Units or other partnership interests or
distribution rights in the Partnership or the Operating Partnership. The Units,
when issued and delivered against payment therefor as provided herein and the
Subordinated Units and Incentive Distribution Rights to be issued to the General
Partner, when issued and delivered in accordance with the terms of the
Partnership Agreement, will conform in all material respects to the description
thereof contained in the Prospectus. The Partnership has all requisite power and
authority to issue, sell and deliver (i) the Units, in accordance with and upon
the terms and conditions set forth in this Agreement, the Partnership Agreement
and the Registration Statement and Prospectus and (ii) the Subordinated Units
and Incentive Distribution Rights, in accordance with the terms and conditions
set forth in the Partnership Agreement. At the Closing Date and the Option
Closing Date, all corporate, company and partnership action, as the case may be,
required to be taken by the Atlas Entities, the Atlas Parties or the Operating
LLCs or any of their respective shareholders, partners or members for the
authorization, issuance, sale and delivery of the Units, the Subordinated Units
and Incentive Distribution Rights and the consummation of the transactions
(including the Transactions) contemplated by this Agreement shall have been
validly taken.
14
(n) The execution and delivery of, and the performance by
Atlas America, REI, Viking and each of the Atlas Parties of their respective
obligations under, this Agreement have been duly and validly authorized by each
of them, and this Agreement has been duly executed and delivered by each of
them, and constitutes the valid and legally binding agreement of each of them,
enforceable against each of them in accordance with its terms.
(o) At or before the Closing Date, (i) the Partnership
Agreement will have been duly authorized, executed and delivered by the General
Partner and will be a valid and legally binding agreement of the General Partner
and the Organizational Limited Partner, enforceable against the General Partner
and the Organizational Limited Partner in accordance with its terms; (ii) the
Operating Partnership Agreement will have been duly authorized, executed and
delivered by each of the General Partner and the Partnership and will be a valid
and legally binding agreement of the General Partner and the Partnership,
enforceable against each of them in accordance with its terms; (iii) a master
natural gas gathering agreement as described in the Prospectus (the "Master
Gathering Agreement") will have been duly authorized, executed and delivered by
each of the Partnership, the Operating Partnership, Atlas America, REI and
Viking and will be a valid and legally binding agreement of each of them
enforceable against each of them in accordance with its terms; (iv) each of the
Conveyance Agreements will have been duly authorized, executed and delivered by
the parties thereto and will be a valid and legally binding agreement of the
parties thereto enforceable against each of such parties in accordance with its
terms; (v) an omnibus agreement as described in the Prospectus (the "Omnibus
Agreement") will have been duly authorized, executed and delivered by each of
the Operating Partnership, Atlas America, REI and Viking and will be a valid and
legally binding agreement of each of them enforceable against each of them in
accordance with its terms; and (vi) a distribution support agreement as
described in the Prospectus (the "Distribution Support Agreement") will have
been authorized, executed and delivered by each of the General Partner and the
Partnership and will be a valid and legally binding agreement of each of them
enforceable against each of them in accordance with its terms; provided that,
with respect to each agreement described in this Section 6(o), 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. The Partnership Agreements, the Master Gathering Agreement,
the Conveyance Agreements, the Omnibus Agreement and the Distribution Support
Agreement are herein collectively referred to as the "Operative Agreements."
15
(p) None of the offering, issuance and sale by the Partnership
of the Units, the execution, delivery and performance of this Agreement or the
Operative Agreements by the Atlas Entities, the Atlas Parties or the Operating
LLCs which are parties thereto, or the consummation of the transactions
contemplated hereby and thereby (including the Transactions) (i) conflicts or
will conflict with or constitutes or will constitute a violation of the
agreement of limited partnership, certificate or articles of incorporation or
bylaws or other organizational documents of any of the Atlas Entities, the Atlas
Parties or the Operating LLCs, (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 Atlas Entities, the Atlas Parties or
the Operating LLCs 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 directed to any of the Atlas Entities, the Atlas
Parties or the Operating LLCs or any of their properties in a proceeding to
which any of them or their 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 Atlas Parties or the Operating LLCs, in the case of clauses
(ii), (iii) or (iv), which conflicts, breaches, violations or defaults would
have a Material Adverse Effect.
(q) 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 Atlas Entities the Atlas Parties or the Operating LLCs of the
transactions contemplated by, this Agreement or the Operative Agreements
(including the Transactions), 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
Date 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.
(r) None of the Atlas Entities, the Atlas Parties or the
Operating LLCs is in (i) violation of its agreement of limited partnership,
certificate or articles of incorporation or bylaws or other organizational
documents, or of any law, statute, ordinance, administrative or governmental
rule or regulation applicable to it or of any decree of any court or
governmental agency or body having jurisdiction over it or (ii) breach, default
(or an event which, with notice or lapse of time or both, would constitute such
an event) or violation in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to which
it is a party or by which it or any of its properties may be bound, which
breach, default or violation would, if continued, have a Material Adverse
Effect.
16
(s) The accountants, Xxxxx Xxxxxxxx LLP, XxXxxxxxxx & Coursan
and Ernst & Young LLP, who have certified or shall certify the audited financial
statements included in the Registration Statement, any Prepricing Prospectus and
the Prospectus (or any amendment or supplement thereto), are independent public
accountants with respect to Atlas America, REI, Viking and the Atlas Parties as
required by the Act and the applicable published rules and regulations
thereunder.
(t) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement, the Prepricing
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 or operations purported to be shown thereby on
the basis stated therein at the respective dates or for the respective periods
and have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except to the
extent disclosed therein. The selected historical information set forth in the
Registration Statement, the Prepricing Prospectus and the Prospectus (and any
amendment or supplement thereto) under the captions "Summary Financial and
Operating Data of Resource America, Inc. Gathering Operations" and "Selected
Financial and Operating Data of Resource America, Inc. Gathering Operations" is
accurately presented in all material respects and prepared on a basis consistent
with the audited and unaudited historical financial statements from which it has
been derived. The pro forma financial statements of the Partnership included in
the Registration Statement, the Prepricing Prospectus and the Prospectus (and
any amendment or supplement thereto) are accurately presented in all material
respects and have been prepared in all material respects in accordance 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 Atlas America, REI, Viking and the General
Partner, reasonable; 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.
(u) Except as disclosed in the Registration Statement, the
Prepricing Prospectus and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is set
forth therein, (i) none of the Atlas Entities, the Atlas Parties or the
Operating LLCs has incurred any liability or obligation, indirect, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, that, singly or in the aggregate, is material to the Atlas Parties and
the Operating LLCs, taken as a whole, (ii) there has not been any change in the
capitalization, or increase in the short-term debt or long-term debt, of the
Atlas Entities, the Atlas Parties or the Operating LLCs that, singly or in the
aggregate, is material to the Atlas Parties and the Operating LLCs and (iii)
there has not been any material adverse change, or any development involving or
which may reasonably be expected to involve, singly or in the aggregate, a
prospective Material Adverse Effect whether or not arising in the ordinary
course of business.
17
(v) There are no legal or governmental proceedings pending or,
to the knowledge of Atlas America, REI or Viking, threatened, against any of
Atlas America, REI, Viking, the Operating LLCs or the Atlas Parties, or to which
any of Atlas America, REI, Viking, the Operating LLCs or the Atlas Parties is a
party, or to which any of their respective properties is subject, that are
required to be described in the Registration Statement or the Prospectus but are
not described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the Act.
(w) Upon execution and delivery of the Conveyance Agreements,
the Atlas Entities party thereto will have conveyed to the Operating LLCs all of
their respective rights, title and interest in and to all real and personal
property described in the Prospectus to be conveyed to the Operating LLCs (the
"Property"), free and clear of all liens, claims, security interests or other
encumbrances except (i) as described in the Prospectus and (ii) such as do not
materially detract from the value of the Property and do not materially
interfere with the use of the Property taken as a whole as the Property has been
used in the past and as the Property is proposed to be used in the future as
described in the Prospectus. The Property consists of all real and personal
property necessary to operate the gathering assets described in the Prospectus
in all material respects as currently operated by the respective Atlas Entities.
The Operating LLCs will, upon execution and delivery of the Conveyance
Agreements, succeed in all material respects to the business, assets,
properties, liabilities and operations reflected by the pro forma financial
statements of the Partnership, except as disclosed in the Prospectus.
(x) The Partnership has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the distribution
of the Units, will not distribute, any prospectus (as defined under the Act) in
connection with the offering and sale of the Units other than the Registration
Statement, any Prepricing Prospectus, the Prospectus or other materials, if any,
permitted by the Act, including Rule 134 of the general rules and regulations
thereunder.
(y) Each of Atlas America, REI, Viking, the Operating LLCs and
the Atlas Parties has, or at the Closing Date will have, such permits, consents,
licenses, franchises, certificates and authorizations of governmental or
regulatory authorities ("permits") as are necessary to own 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
which, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect; each of the Atlas Parties and the Operating LLCs has,
or at the Closing Date will have, fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any impairment of the rights of the holder of any such permit,
except for such revocations, terminations and impairments that would not have a
Material Adverse Effect, subject in each case to such qualification as may be
set forth in the Prospectus; and, except as described in the Prospectus, none of
such permits contains any restriction that is materially burdensome to the Atlas
Parties and the Operating LLCs, taken as a whole.
18
(z) Upon execution and delivery of the Conveyance Agreements
on the Closing Date each of the Operating LLCs will have, such consents,
easements, rights-of-way or licenses from any person ("rights-of- way") as are
necessary to the conduct of the Partnership's business in the manner described
in the Prospectus, subject to such qualifications as may be set forth in the
Prospectus and except for such rights-of-way which, if not obtained, would not
have, individually or in the aggregate, a Material Adverse Effect; each of the
Atlas Parties and the Operating LLCs, has, or at the Closing Date will have,
fulfilled and performed all its material obligations with respect to such
rights-of-way and no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results 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 have a Material
Adverse Effect, subject in each case to such qualification as may be set forth
in the Prospectus; and, except as described in the Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the
Atlas Parties and the Operating LLCs, taken as a whole.
(aa) Each of Atlas America, REI, Viking, the Operating LLCs
and the Atlas Parties (i) makes and keeps books, records and accounts, which, in
reasonable detail, accurately and fairly reflect the transactions and
dispositions of assets and (ii) maintains systems of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) Each of the Atlas Entities and Atlas Parties has filed
(or has obtained extensions with respect to) all material federal, state and
foreign, income and other tax returns required to be filed through the date
hereof, which returns are complete and correct in all material respects, and has
timely 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, or (ii) which
are being contested in good faith.
(cc) At the Closing Date, after giving effect to the
Transactions, the Atlas Parties and the Operating LLCs will own or possess, all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights owned by them or necessary for the conduct of their respective
businesses, and the Atlas Parties are not aware of any claim to the contrary or
any challenge by any other person to the rights of the Atlas Parties and the
Operating LLCs with respect to the foregoing.
19
(dd) None of the Atlas Parties or the Operating LLCs is now,
and after sale of the Units to be sold by the Partnership hereunder and
application of the net proceeds from such sale as described in the Prospectus
under the caption "The Transactions; Use of Proceeds" will be, (i) an
"investment company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a "public
utility company," "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" thereof, under the Public Utility Holding Company Act
of 1935, as amended.
(ee) None of the Atlas Entities, the Operating LLCs or the
Atlas Parties 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,
investigation, order or decree, otherwise than as set forth or contemplated in
the Prospectus, except for any such loss or interference that would not have a
Material Adverse Effect.
(ff) None of the Atlas Entities, the Operating LLCs or the
Atlas Parties has violated any environmental, safety, health or similar law or
regulation applicable to its business relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), or lacks any permits,
licenses or other approvals required of them under applicable Environmental Laws
to own, lease or operate their properties and conduct their business as
described in the Prospectus or is violating any terms and conditions of any such
permit, license or approval, which in each case would have a Material Adverse
Effect.
(gg) Except as described in or contemplated by the Prospectus,
no material labor dispute with the employees of Atlas America exists or, to the
knowledge of Atlas America, is imminent.
(hh) At the Closing Date, after giving effect to the
Transactions, the Atlas Parties and the Operating LLCs will maintain insurance
covering their properties, operations, personnel and businesses against such
losses and risks as are reasonably adequate to protect them and their businesses
in a manner consistent with other businesses similarly situated. None of the
Atlas Entities has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be made
with respect to any asset to be transferred to any of the Operating LLCs in
order to continue such insurance, and all such insurance is outstanding and duly
in force on the date hereof and will be outstanding and duly in force on the
Closing Date.
(ii) Except as described in the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to the knowledge
of Atlas America, threatened, to which any of the Atlas Entities or Atlas
Parties, or any of their respective subsidiaries, is or may be a party or to
which the business or property of any of the Atlas Entities or Atlas Parties, or
any of their respective subsidiaries, is or may be subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued by any
governmental agency or that has been proposed by any governmental body and (iii)
no injunction, restraining order or order of any nature issued by a federal or
state court or foreign court of competent jurisdiction to which any of the Atlas
Entities or Atlas Parties, or any of their respective subsidiaries, is or may be
subject, that, in the case of clauses (i), (ii) and (iii) above, is reasonably
expected to (A) singly or in the aggregate have a Material Adverse Effect, (B)
prevent or result in the suspension of the offering and issuance of the Units or
(C) in any manner draw into question the validity of this Agreement or any
Operative Agreement.
20
(jj) The sale and issuance of the Subordinated Units and
Incentive Distribution Rights to the General Partner pursuant to the Partnership
Agreement are exempt from the registration requirements of the Act and the
securities laws of any state having jurisdiction with respect thereto, and none
of the Atlas Parties has taken or will take any action that would cause the loss
of such exemption.
(kk) The Units have been approved for listing on the American
Stock Exchange ("AMEX"), subject only to official notice of issuance.
7. Indemnification and Contribution.
(a) Each of Atlas America, REI, Viking and the Atlas Parties,
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and its affiliates (within the meaning of Rule 405 of the Act) and their
respective directors, officers, employees, agents and controlling persons
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
(each an "Underwriter Indemnified Party") from and against any and all losses,
claims, damages, liabilities and expenses (including but not limited to
reasonable attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, whether or not such litigation or claim is
initiated or brought by any Atlas Entity, any Operating LLC or any Atlas Party,
and any and all amounts paid in settlement of any claim or litigation) which,
jointly or severally, any such Underwriter Indemnified Party may incur under any
applicable federal or state law, or otherwise, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except to the extent but only to the extent that such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
furnished in writing to the Partnership or the General Partner by or on behalf
of any Underwriter through you expressly for use in connection therewith (it
being understood that such information is limited to the information described
in Section 12 hereof); provided, further, that the indemnification contained in
this paragraph (a) with respect to any Prepricing Prospectus shall not inure to
the benefit of any Underwriter Indemnified Party on account of any such loss,
claim, damage, liability or expense arising from the sale of the Units by such
Underwriter Indemnified Party to any person if a copy of the Prospectus shall
not have been delivered or sent to such person within the time required by the
Act and the regulations thereunder, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the
Partnership has delivered the Prospectus to the several Underwriters in
requisite quantity and on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement shall be in addition to any liability which Atlas
America, REI, Viking or any Atlas Party may otherwise have.
21
(b) If any action, suit or proceeding shall be brought against
any Underwriter Indemnified Party in respect of which indemnity may be sought
against Atlas America, REI, Viking or an Atlas Party, such Underwriter
Indemnified Party shall promptly notify Atlas America, REI, Viking and the Atlas
Parties in writing, and Atlas America, REI and Viking may elect to assume the
defense thereof, including the employment of counsel (which counsel shall be
reasonably acceptable to such Underwriter Indemnified Party) and payment of all
reasonable fees and expenses. The failure or delay by an Underwriter Indemnified
Party to notify the indemnifying party shall not relieve it from liability which
it may have to an Underwriter Indemnified Party unless such failure or delay
materially prejudices the indemnifying party's ability to defend such action,
suit or proceeding on behalf of such Underwriter Indemnified Party. Such
Underwriter Indemnified Party shall have the right to employ separate counsel in
any such action, suit or proceeding and to participate in (but not control) the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter Indemnified Party unless (i) Atlas America, REI,
Viking or an Atlas Party has agreed in writing to pay such fees and expenses,
(ii) Atlas America, REI and Viking have failed to assume the defense or employ
counsel reasonably satisfactory to such Underwriter Indemnified Party or (iii)
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter Indemnified Party and Atlas
America, REI, Viking or an Atlas Party, and such Underwriter Indemnified Party
shall have been advised by its counsel that representation of such Underwriter
Indemnified Party and Atlas America, REI, Viking or such Atlas Party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Partnership shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter Indemnified Party) or
that there may be legal defenses available to such Underwriter Indemnified Party
that are different from or in addition to those available to Atlas America, REI,
Viking or such Atlas Parties. It is understood, however, that Atlas America,
REI, Viking and the Atlas Parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Underwriter Indemnified Parties not having actual or potential
differing interests with you or among themselves, which firm shall be designated
in writing by you, and that all such fees and expenses shall be reimbursed as
they are incurred. None of the Atlas Parties, Atlas America, REI or Viking shall
be liable for any settlement of any such action, suit or proceeding effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, Atlas America, REI, Viking
and the Atlas Parties agree, jointly and severally, to indemnify and hold
harmless any Underwriter Indemnified Party, to the extent provided in the
preceding paragraph, from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
22
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless Atlas America, REI, Viking and the Atlas Parties,
their respective directors and officers who sign the Registration Statement, and
any person who controls Atlas America, REI, Viking and the Atlas Parties within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from Atlas America, REI, Viking and the
Atlas Parties to each Underwriter, but only with respect to information
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto (it being understood that
such information is limited to the information described in Section 12 hereof).
If any action, suit or proceeding shall be brought against Atlas America, REI,
Viking or an Atlas Party, any of such directors and officers or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to Atlas America,
REI, Viking and the Atlas Parties by paragraph (b) above (except that if the
Partnership shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
(but not control) the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and Atlas America, REI, Viking and the
Atlas Parties, any of such directors and officers and any such controlling
person shall have the rights and duties given to the Underwriters by paragraph
(b) above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
23
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraph (a) or (c) hereof in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by Atlas
America, REI, Viking and the Atlas Parties on the one hand and the Underwriters
on the other hand from the offering of the Units, or (ii) if, but only 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 Atlas America,
REI, Viking and the Atlas Parties on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by Atlas America, REI,
Viking and the Atlas Parties on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
Offering (before deducting expenses) received by Atlas America, REI, Viking and
the Atlas Parties bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of Atlas America, REI, Viking
and the Atlas Parties on the one hand, and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by Atlas America, REI,
Viking and the Atlas Parties or any other affiliate of Atlas America, REI,
Viking and the Atlas Parties on the one hand, or by the Underwriters on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Atlas America, REI, Viking and the Atlas Parties and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Units underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Firm Units set forth opposite their names in Schedule I hereto (or such
numbers of Firm Units increased as set forth in Section 10 hereof) and not
joint.
24
(f) No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of Atlas America, REI, Viking and the Atlas
Parties set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, Atlas America, REI,
Viking, the Atlas Parties or any of their respective directors or officers or
any person controlling Atlas America, REI, Viking or the Atlas Parties, (ii)
acceptance of any Units and payment therefor in accordance with the terms of
this Agreement, and (iii) any termination of this Agreement. A successor to any
Underwriter Indemnified Party, or to Atlas America, REI, Viking or the Atlas
Parties or any of their respective directors or officers or any person
controlling Atlas America, REI, Viking or an Atlas Party shall be entitled to
the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Units hereunder are subject to the
following conditions:
25
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Units may commence,
the Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall be or have
been timely made, as the case may be; no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of Atlas America, REI,
Viking, the Atlas Parties or any Underwriter, threatened by the Commission and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of Atlas
America, REI, Viking, any of the Atlas Parties or the operations of the
gathering assets transferred to the Operating LLCs pursuant to the Conveyance
Agreements not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Units, or (ii) any event or development relating to or
involving Atlas America, any of the Atlas Parties, any of the Operating LLCs or
any executive officer or director of any of such entities which makes any
statement made in the Prospectus untrue or which, in the opinion of the
Partnership and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, as Representatives of the several Underwriters, materially adversely
affect the market for the Units.
(c) You shall have received on the Closing Date, an opinion of
Ledgewood Law Firm, P.C., counsel for the Atlas Entities, the Atlas Parties and
the Operating LLCs, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Partnership has been duly formed and is
validly existing and in good standing as a limited partnership under
the Delaware LP Act with all necessary power and authority, after
giving effect to the Transactions, to own or lease its properties, and
conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
26
(ii) The Partnership is duly registered or qualified
as a foreign limited partnership for the transaction of business under
the laws of the States of New York, Pennsylvania and Ohio; and, to such
counsel's knowledge, such jurisdictions are the only jurisdictions in
which, after giving effect to the Transactions, the character of the
business conducted by the Partnership or the nature or location of the
properties owned or leased by it make such registration or
qualification necessary (except where the failure to so register or so
qualify would not (A) have a Material Adverse Effect, or (B) subject
the limited partners of the Partnership to any material liability or
disability).
(iii) The Operating Partnership has been duly formed
and is validly existing and in good standing as a limited partnership
under the Delaware LP Act with all necessary power and authority, after
giving effect to the Transactions, to own or lease its properties, and
conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(iv) The Operating Partnership is duly registered or
qualified as a foreign limited partnership for the transaction of
business under the laws of the States of New York, Pennsylvania and
Ohio; and, to such counsel's knowledge, such jurisdictions are the only
jurisdictions in which, after giving effect to the Transactions, the
character of the business conducted by the Operating Partnership or the
nature or location of the properties owned or leased by it make such
registration or qualification necessary (except where the failure to so
register or so qualify would not (A) have a Material Adverse Effect, or
(B) subject the limited partners of the Partnership to any material
liability or disability).
(v) The General Partner has been duly formed and is a
limited liability company validly existing and in good standing under
the laws of the State of Delaware, with all necessary power and
authority, after giving effect to the Transactions, to own or lease its
properties, conduct its business and act as general partner of the
Partnership and the Operating Partnership, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(vi) The General Partner is duly registered or
qualified as a foreign limited liability company for the transaction of
business under the laws of the States of New York, Pennsylvania and
Ohio; and to such counsel's knowledge, such jurisdictions are the only
jurisdictions in which, after giving effect to the Transactions, the
character of the business conducted by the General Partner or the
nature or location of the properties owned or leased by it make such
registration or qualification necessary (except where the failure to so
register or so qualify would not (A) have a Material Adverse Effect, or
(B) subject the limited partners of the Partnership to any material
liability or disability).
27
(vii) Each of the Operating LLCs has been duly formed
and is a limited liability company validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania, with all
necessary company power and authority, after giving effect to the
Transactions, to own or lease its properties, assume and perform the
liabilities being assumed by it pursuant to the Conveyance Agreements,
and conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(viii) Each of the Operating LLCs is duly registered
or qualified as a foreign limited liability company for the transaction
of business under the laws of each jurisdiction in which, after giving
effect to the Transactions, the character of the business conducted by
such entity or the nature or location of the properties owned or leased
by it make such registration or qualification necessary (except where
the failure to so register or so qualify would not (A) have a Material
Adverse Effect, or (B) subject the limited partners of the Partnership
to any material liability or disability).
(ix) Each of Atlas America, REI, AIC, AEG, Viking and
REI-NY have been duly formed and is a corporation validly existing and
in good standing under the laws of the state of its incorporation, with
all necessary corporate power and authority, after giving effect to the
Transactions, to own or lease its properties, assume and perform the
liabilities being assumed by it pursuant to the Conveyance Agreements,
and conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(x) Each of Atlas America, REI and Viking is duly
registered or qualified as a foreign corporation for the transaction of
business under the laws of the States set forth on Exhibit A to this
opinion; and to such counsel's knowledge, such jurisdictions are the
only jurisdictions in which, after giving effect to the Transactions,
the character of the business conducted by such entity or the nature or
location of the properties owned or leased by it make such registration
or qualification necessary (except for the failure to so register or so
qualify would not (A) have a Material Adverse Effect, or (B) subject
the limited partners of the Partnership to any material liability or
disability).
28
(xi) 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 authorized and
validly issued in accordance with the Partnership Agreement; the
General Partners owns all of the Incentive Distribution Rights; such
Incentive Distribution Rights have been duly authorized and validly
issued in accordance with the Partnership Agreement and are fully paid;
and, except for the Permitted Encumbrances, the General Partner owns
such general partner interest and Incentive Distribution Rights free
and clear of all liens, encumbrances, security interests, charges or
claims (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner as
debtor is on file in the office of the Secretary of State of the State
of Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the DGCL or
the Delaware LP Act, as appropriate.
(xii) The 1,641,026 Subordinated Units to be issued
to the General Partner pursuant to the Partnership Agreement and the
limited partner interests represented thereby have been duly authorized
and, when issued and delivered against payment therefor, will be
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
matters described in the Prospectus under "The Partnership
Agreement--Limited Liability"); after giving effect to the
Transactions, except for the Permitted Encumbrances, the General
Partner will own such Subordinated Units, free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware, naming any such owner as debtor is on file in the
office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the DGCL.
(xiii) The 1,500,000 Units to be issued and sold to
the Underwriters by the Partnership pursuant to this Agreement and the
limited partner interests represented thereby have been duly authorized
by the Partnership Agreement and, when issued and delivered against
payment therefor as provided in this Agreement, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); other than the Subordinated Units and
Incentive Distribution Rights that will be owned by the General
Partner, the Units will be the only limited partner interests of the
Partnership issued and outstanding at the Closing Date.
(xiv) As of the Closing, after giving effect to the
Transactions, the General Partner will own a 1.0101% general partner
interest in the Operating Partnership and the Partnership will own a
98.9899% limited partner interest in the Operating Partnership; such
interests will have been duly authorized and validly issued in
accordance with the Operating Partnership Agreement and will be fully
paid (to the extent required under the Operating Partnership Agreement)
and the limited partnership interest will be nonassessable (except as
such nonassessability may be affected by matters described in the
Prospectus under the caption "The Partnership Agreement--Limited
Liability"); and, except for the Permitted Encumbrances, the General
Partner and the Partnership will own such interests free and clear of
all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming any such owner as debtor is on
file in the office of the Secretary of State of the State of Delaware
or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the DGCL or
the Delaware LP Act, as applicable.
29
(xv) Except as described in the Prospectus, there are
no preemptive rights or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any limited partner
interests in the Partnership or the Operating Partnership pursuant to
the Partnership Agreement, the Operating Partnership Agreement or any
other agreement or instrument known to such counsel to which the
Partnership or the Operating Partnership is a party or by which either
of them may be bound. To such counsel's knowledge, except as described
in the Prospectus, 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 or the Operating
Partnership. To such counsel's knowledge, except as described in the
Prospectus, there are no outstanding options or warrants to purchase
any Common Units or Subordinated Units or other partnership interests
in the Partnership or the Operating Partnership. The Partnership has
all requisite power and authority to issue, sell and deliver (A) the
Units, in accordance with and upon the terms and conditions set forth
in this Agreement, the Partnership Agreement and the Registration
Statement and Prospectus, and (B) the Subordinated Units, in accordance
with the terms and conditions set forth in the Partnership Agreement.
(xvi) Upon the consummation of the Transactions, the
unitholders will not be liable under the laws of the State of Delaware
for the liabilities of the Partnership or the Operating Partnership,
except as provided under Sections 17-303 and 17-607 under the Delaware
LP Act or in the Partnership Agreement .
(xvii) This Agreement has been duly authorized and
validly executed and delivered by Atlas America, REI, Viking and each
of the Atlas Parties and constitutes a valid and binding obligation of
each of such parties, enforceable against each such party in accordance
with its terms, subject to (A) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws from
time to time in effect affecting creditors' rights and remedies
generally and general principles of equity (regardless of whether such
principles are considered in a proceeding at law or in equity) and (B)
public policy and applicable law with respect to the indemnity,
contribution and exoneration provisions contained herein.
(xviii) To the knowledge of such counsel, none of the
Atlas Entities, the Atlas Parties, or the Operating LLCs is in (A)
breach or violation of the provisions of its agreement of limited
partnership, certificate or articles of incorporation or bylaws or
other organizational documents or (B) default (and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which it is a party or by which it or any of its
properties may be bound, which breach, default or violation would, if
continued, have a Material Adverse Effect.
30
(xix) To the knowledge of such counsel, each of the
Atlas Parties and the Operating LLCs has such permits, consents,
licenses, franchises and authorizations ("permits") of governmental or
regulatory authorities 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 which, if not obtained would not reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect; and, to the knowledge of such counsel, none of the
Atlas Parties or the Operating LLCs has received any notice of
proceedings relating to the revocation or modification of any such
permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a Material Adverse Effect.
(xx) Each of the Operative Agreements to which any of
the Atlas Entities, the Atlas Parties or the Operating LLCs is a party
have been duly authorized and validly executed and delivered by each of
the Atlas Entities, the Atlas Parties and the Operating LLCs parties
thereto and constitutes a valid and binding obligation of each of the
Atlas Entities, the Atlas Parties and the Operating LLCs parties
thereto, enforceable against each such party in accordance with its
respective terms, subject to (A) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws from
time to time in effect affecting creditors' rights and remedies
generally and general principles of equity (regardless of whether such
principles are considered in a proceeding at law or in equity) and (B)
public policy and applicable law with respect to the indemnity,
contribution and exoneration provisions contained therein.
(xxi) None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of
this Agreement or the Operative Agreements by the Atlas Entities, the
Atlas Parties or the Operating LLCs party thereto, or the consummation
of the transactions contemplated hereby and thereby (including the
Transactions) (A) constitutes or will constitute a violation of the
Partnership Agreements or the certificate or articles of incorporation
or bylaws or other organizational documents of any of the Atlas
Entities, the Atlas Parties or the Operating LLCs, (B) 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 other Operative Agreement, any bond, debenture,
note or any other evidence of indebtedness, any indenture or any other
material agreement or instrument known to such counsel to which an
Atlas Entity, an Atlas Party or an Operating LLC is a party or by which
any one of them may be bound, (C) results or will result in any
violation of the Delaware LP Act, the DGCL, the laws of the
Commonwealth of Pennsylvania or federal law that, in our experience,
are normally applicable to transactions of the type contemplated by the
foregoing, as in effect on the date hereof (other than state and
foreign securities or blue sky laws and the rules and regulations of
the National Association of Securities Dealers, Inc., as to which we
express no opinion, or federal securities laws, as to which the opinion
expressed in this subparagraph (xxi) is limited to nothing having come
to our attention that leads us to believe that such a violation has or
will occur), or (D) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of any of the Atlas Entities, the Atlas Parties or the Operating
LLCS which in the case of clauses (B), (C) or (D) would reasonably be
expected to have a Material Adverse Effect.
31
(xxii) No permit, consent, approval, certificate,
authorization or order of any federal or state court, governmental
agency or body is required in connection with the execution and
delivery of, or the consummation by the Atlas Entities, the Atlas
Parties or the Operating LLCs of the transactions contemplated by this
Agreement or the Operative Agreements (including the Transactions),
except (A) such permits, consents, approvals, certificates and similar
authorizations required under the Act and the Exchange Act, (B) such
permits consents, approvals, certificates and similar authorizations
required under state securities or "Blue Sky" laws, as to which such
counsel need not express any opinion and (C) as described in the
Prospectus.
(xxiii) The statements in the Registration Statement
and Prospectus under the captions "The Transactions," "Cash
Distribution Policy," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business--Regulation,"
"Business--Environmental and Safety Regulation," "Conflicts of Interest
and Fiduciary Responsibilities," "Description of the Common Units,"
"Description of the Subordinated Units" and "The Partnership
Agreement," insofar as they constitute descriptions of the Operative
Agreements or refer to statements of law or legal conclusions, are
accurate and complete in all material respects, and the Units, the
Common Units, the Subordinated Units and Incentive Distribution Rights
conform in all material respects to the descriptions thereof contained
in the Registration Statement and Prospectus under the captions
"Prospectus Summary--The Offering," "Cash Distribution Policy,"
"Description of the Common Units," "Description of the Subordinated
Units" and "The Partnership Agreement".
(xxiv) The Registration Statement was declared
effective under the Act on January __, 2000; to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened by the Commission; and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by such Rule.
32
(xxv) The Registration Statement and the Prospectus
(other than (i) the financial statements included therein, including
the notes and schedules thereto and the auditors' reports thereon and
(ii) the other historical, pro forma and projected financial
information and the statistical and accounting information included
therein, as to which such counsel need not comment) comply as to form
in all material respects with the requirements of the Act and the rules
and regulations promulgated thereunder.
(xxvi) To the knowledge of such counsel, (A) there is
no legal or governmental proceeding pending or threatened to which any
of the Atlas Entities, the Atlas Parties or the Operating LLCs is a
party or to which any of their respective properties is subject that is
required to be disclosed in the Prospectus and is not so disclosed and
(B) there are no agreements, contracts or other documents to which any
of the Atlas Entities, the Atlas Parties or the Operating LLCs is a
party that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(xxvii) None of the Atlas Parties is an "investment
company" or a company "controlled by" an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(xxviii)Upon delivery to the Underwriters of
certificates evidencing the Units issued in the name of the
Underwriters and payment by the Underwriters of the purchase price for
the Units, the Underwriters will acquire the Units free of any adverse
claim (as such term is defined in Section 8-302 of the New York Uniform
Commercial Code), assuming that the Underwriters are acting in good
faith and without notice of any adverse claim.
(xxix) The Common Units have been approved for
listing on the AMEX, subject only to official notice of issuance.
(xxx) The offer, sale and issuance of the
Subordinated Units and Incentive Distribution Rights to the General
Partner pursuant to the Partnership Agreement are exempt from the
registration requirements of the Act and the securities laws of any
state having jurisdiction with respect thereto.
33
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Atlas Entities and
Atlas Parties and the independent public accountants of the Partnership and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement
(other than (i) the financial statements included therein, including the notes
and schedules thereto and the auditors' reports thereon and (ii) the other
historical, pro forma and projected financial information and the statistical
and accounting information included therein, as to which such counsel need not
comment), as of its effective date contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus
(other than (i) the financial statements included therein, including the notes
and schedules thereto and the auditors' reports thereon, and (ii) the other
historical, pro forma and projected financial information and the statistical
and accounting information included therein, as to which such counsel need not
comment), as of its issue date and the Closing Date contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Atlas
Entities and the Atlas Parties and upon information obtained from public
officials, (B) assume that all documents submitted to them as originals are
authentic, that all copies submitted to them conform to the originals thereof,
and that the signatures on all documents examined by them are genuine, (C) state
that their opinion is limited to federal laws, the Delaware LP Act, the DGCL and
the laws of the Commonwealth of Pennsylvania, (D) with respect to the opinions
expressed in paragraphs (ii), (iv), (vi), (viii) and (x) above as to the due
qualification or registration as a foreign limited partnership, limited
liability company or corporation, as the case may be, of each of the Atlas
Entities and Atlas Parties, state that such opinions are based upon the opinions
of ____________________________________________________ provided pursuant to (d)
below and upon certificates of foreign qualification or registration provided by
the Secretary of State of the States of Ohio, Pennsylvania and New York (each of
which shall be dated as of a date not more than fourteen days prior to the
Closing Date and shall be provided to you), (E) state that they express no
opinion with respect to the title of any of the Atlas Parties to any of their
respective real or personal property, (F) state that they express no opinion
with respect to state or local taxes or tax statutes to which any of the limited
partners of the Partnership or any of the Atlas Parties may be subject and (G)
state that they are relying as to certain matters on the opinions of Xxxxxxx &
Xxxxx L.L.P.
(d) You shall have received on the Closing Date, an opinion of
each of (i) _____________________, with respect to the State of Ohio (ii)
______________________, with respect to the State of Pennsylvania, (iii) and
______________________, with respect to the State of New York, each of which is
acting as special local counsel for the applicable Atlas Entities, Atlas Parties
and Operating LLCs, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
34
(i) Each of the Atlas Entities, Atlas Parties and
Operating LLCs, as applicable, has been duly qualified or registered as
a foreign corporation, foreign limited liability company or a foreign
limited partnership, as the case may be, for the transaction of
business under the laws of Ohio, Pennsylvania or New York, as
applicable.
(ii) The execution, delivery and performance of the
Conveyance Agreements relating to the transfer of property in the State
of Ohio, Pennsylvania or New York, as applicable, did not or will not
violate any statute of the State of Ohio, Pennsylvania or New York, as
applicable, or any rule, regulation or, to the knowledge of such
counsel, any order of any agency of the State of Ohio, Pennsylvania or
New York, as applicable, having jurisdiction over any of the Atlas
Entities, the Atlas Parties or the Operating LLCs or any of their
respective properties, except for any such violations which,
individually or in the aggregate, would not have a material adverse
effect upon the unitholders or the operations conducted in the State of
Ohio, Pennsylvania or New York, as applicable, by the Atlas Parties and
the Operating LLCs, taken as a whole.
(iii) Each of the Conveyance Agreements relating to
the transfer of property in the State of Ohio, Pennsylvania or New
York, as applicable, and in the case of New York, this Agreement,
assuming the due authorization, execution and delivery thereof by the
parties thereto, to the extent it is a valid and legally binding
agreement under the applicable law as stated therein and that such law
applies thereto, is a valid and legally binding agreement of the
parties thereto under the laws of the State of Ohio, Pennsylvania or
New York, as applicable, enforceable in accordance with its terms,
subject to (A) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights generally and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B) public policy
and applicable law with respect to the indemnity contribution and
exoneration provisions contained therein; each of the Conveyance
Agreements is in a form sufficient (legally and otherwise) as between
the parties thereto to convey to the transferee thereunder all of the
right, title and interest of the transferor stated therein in and to
the properties located in the State of Ohio, Pennsylvania or New York,
as applicable, as described in the Conveyance Agreements, subject to
the conditions, reservations and limitations contained in the
Conveyance Agreements.
35
(iv) Each of the bills of sale, assignment and
assumption agreements, deeds and other instruments of assignment and
conveyance (including, without limitation, the form of the exhibits and
schedules thereto) and each of the mortgage releases and UCC-3
termination statements is in a form sufficient (legally and otherwise)
for recordation in the appropriate public offices of the State of Ohio,
Pennsylvania or New York, as applicable, to the extent such recordation
is required; recordation in the office of the County Clerk for each
county in which OH LLC or NY LLC, as applicable, owns property is the
appropriate public office in the State of Ohio, Pennsylvania or New
York, as applicable, for the recordation of bills of sale, assignment
and assumption agreements, deeds and other instruments of assignment
and conveyance of interests in real property located in such county.
(v) No permit, consent, approval, authorization,
order, registration, filing or qualification of or with any court,
governmental agency or body of the State of Ohio, Pennsylvania or New
York, as applicable, having jurisdiction over the Atlas Entities, the
Atlas Parties, the Operating LLCs or any of their respective properties
is required for the offering, issuance and sale by the Partnership of
the Units, the execution, delivery and performance of this Agreement or
the Operative Agreements by the Atlas Entities, Atlas Parties or the
Operating LLCs party thereto or the conveyance of properties located in
the State of Ohio, Pennsylvania or New York, as applicable, purported
to be conveyed to OH LLC, NY LLC or PA LLC pursuant to the Conveyance
Agreements or the consummation of the transactions (including the
Transactions) contemplated by this Agreement and the Operative
Agreements, except (A) as may be required under state securities or
"Blue Sky" laws, as to which such counsel need not express any opinion,
(B) such permits, consents, approvals and similar authorizations which
have been obtained, and (C) such permits, consents, approvals and
similar authorizations which, if not obtained, would not, individually
or in the aggregate, have a Material Adverse Effect.
(vi) To the knowledge of such counsel, each of the
Atlas Entities the Atlas Parties and the Operating LLCs has such
permits, consents, licenses, franchises and authorizations ("permits")
issued by the appropriate Ohio, Pennsylvaniaor New York, as applicable,
governmental or regulatory authorities 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 which, if not obtained
would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect upon the operations conducted in
the State of Ohio, Pennsylvania or New York, as applicable, by the
Atlas Parties and the Operating LLCs, taken as a whole; and, to the
knowledge of such counsel, none of the Atlas Entities, Atlas Parties or
Operating LLCs has received any notice of proceedings relating to the
revocation or modification of any such permits which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse
Effect.
36
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Atlas
Entities and Atlas Parties and upon information obtained from public officials,
(B) assume that all documents submitted to them as originals are authentic, that
all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, (C) state that such
opinions are limited to federal laws and the laws of the State of Ohio,
Pennsylvania or New York, as applicable, (D) state that they express no opinion
with respect to the title of any of the real or personal property purported to
be transferred by the Conveyance Agreements, (E) state that they express no
opinion with respect to state or local taxes or tax statutes to which any of the
limited partners of the Partnership may be subject, and (F) state that they are
relying as to certain matters on the opinions of Xxxxxx & Xxxxx L.L.P.
In rendering such opinion, such counsel shall state that (A) Ledgewood
Law Firm, P.C. is hereby authorized to rely upon such opinion letter in
connection with the Transactions as if such opinion letter were addressed and
delivered to them on the date hereof and (B) subject to the foregoing, such
opinion letter may be relied upon only by the Underwriters and its counsel in
connection with the Transactions and no other use or distribution of this
opinion letter may be made without such counsel's prior written consent.
(e) You shall have received on the Closing Date an opinion of
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to the issuance and sale of the Units, the
Registration Statement and the Prospectus (together with any supplement or
amendment thereto) and other related matters as the Representatives may
reasonably require.
(f) You shall have received on the Closing Date a letter from
Xxxxxxx & Xxxxx L.L.P. confirming the opinion that is filed as Exhibit 8.1 to
the Registration Statement and stating that the Underwriters may rely upon such
opinion as if it were addressed to them.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Xxxxx Xxxxxxxx LLP, XxXxxxxxxx and Xxxxxxx and Xxxxx & Xxxxx
LLP, independent certified public accountants, substantially in the forms
heretofore approved by you.
37
(h) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or taken or, to the knowledge of the
Partnership and the General Partner, shall be threatened by the Commission at or
prior to the Closing Date; (ii) there shall not have been any change in the
partners' capital or shareholder's equity of the Partnership, the Operating
Partnership or the General Partner, as the case may be, nor any material
increase in the short-term or the long-term debt of the Partnership, the
Operating Partnership or the General Partner (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
the Prospectus (or any amendment or supplement thereto), any material adverse
change in or affecting the condition (financial or other), business, prospects,
operations, properties, net worth or results of operations of the Atlas Parties,
taken as a whole which makes it, in your judgment, impracticable or inadvisable
to proceed with the public offering of the Units as contemplated by the
Prospectus; (iv) the Atlas Parties and the Operating LLCs shall not have any
liabilities or obligations, direct or contingent (whether or not in the ordinary
course of business), that are material to the Atlas Parties and the Operating
LLCs, taken as a whole other than those reflected in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of Atlas America, REI, Viking and the Atlas
Parties contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date.
(i) Atlas America, REI, Viking and the Atlas Parties shall not
have failed at or prior to the Closing Date to have performed or complied in all
material respects with any of their agreements herein contained and required to
be performed or complied with by them hereunder at or prior to the Closing Date.
(j) The AMEX shall have approved the Units for inclusion,
subject only to official notice of issuance and evidence of satisfactory
distribution.
(k) Atlas America, REI, Viking and the Atlas Parties shall
have furnished or caused to be furnished to you such further certificates and
documents as you shall have reasonably requested.
(l) Prior to or simultaneously with the sale of the Units on
the Closing Date, (i) the conveyance of assets to the Operating LLCs
contemplated in the Conveyance Agreements shall have been consummated and (ii)
each of the Operative Agreements shall have been executed and delivered and
become effective in substantially the form filed as an exhibit to the
Registration Statement.
(m) There shall have been furnished to you at the Closing Date
a certificate reasonably satisfactory to you, signed on behalf of the
Partnership by the General Partner by the President or the Executive Vice
President and the Chief Financial Officer thereof to the effect that: (A) the
representations and warranties of each of the Atlas Parties contained in this
Agreement are true and correct at and as of the Closing Date as though made at
and as of the Closing Date; (B) each of the Atlas Parties has in all material
respects performed all obligations required to be performed by it pursuant to
the terms of this Agreement at or prior to the Closing Date; (C) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or taken or, to the knowledge
of any of the Atals Parties, threatened by the Commission, and all requests for
additional information on the part of the Commission have been complied with or
otherwise satisfied; (D) the Common Units have been duly approved for listing,
subject to official notice of issuance, on the AMEX; and (E) no event
contemplated by subsection (h) of this Section 8 in respect of the Atlas Parties
shall have occurred.
38
(n) There shall have been furnished to you at the Closing
Date, a certificate reasonably satisfactory to you, signed on behalf of each of
Atlas America, REI and Viking by the President or a Vice President thereof,
respectively, to the effect that (A) the representations and warranties of each
of Atlas America, REI and Viking contained in this Agreement are true and
correct at and as of the Closing Date as though made at and as of the Closing
Date and (B) each of Atlas America, REI and Viking has in all material respects
performed all obligations required to be performed by it pursuant to the terms
of this Agreement at or prior to the Closing Date.
(o) On or prior to the date hereof, the General Partner shall
have furnished to you a letter substantially in the form of Exhibit B hereto.
All such opinions, certificates, letters and other documents referred
to in this Section 8 will be in compliance with the provisions hereof only if
they are reasonably satisfactory in form and substance to you and your counsel.
The Partnership shall furnish to you conformed copies of such opinions,
certificates, letters and other documents in such number as you shall reasonably
request.
The several obligations of the Underwriters to purchase Additional
Units hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (f), (j), (l) and (m) shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (c) and (e), as applicable, shall be revised to reflect the sale of
Additional Units.
9. Expenses. (a) The Partnership agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, including: (i) the
preparation, printing or reproduction, and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
each Prepricing Prospectus, the Prospectus, and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Prepricing Prospectus, the
Prospectus, and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Units; (iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Units, including any stamp taxes in connection with the
original issuance and sale of the Units; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda,
and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Units; (v) the registration of the Common
Units under the Exchange Act and the listing of the Common Units on AMEX; (vi)
the registration or qualification of the Units for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the reasonable fees
and expenses of counsel for the Underwriters in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.'s
review and approval of the Underwriters' participation in the Offering and the
distribution of the Units; (viii) the transportation and other expenses incurred
by or on behalf of officers and employees of the Partnership in connection with
presentations to prospective purchasers of the Units; and (ix) the fees and
expenses of the Partnership's accountants and the fees and expenses of counsel
(including local and special counsel) for the Partnership.
39
(b) The Partnership agrees to reimburse the Representatives
for their out-of-pocket expenses in connection with the performance of its
activities under this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated (otherwise than pursuant
to the second paragraph of Section 10 hereof) including but not limited to,
costs such as printing, facsimile, courier service, direct computer expenses,
accommodations, travel and the fees and expenses of the Representatives' outside
legal counsel and any other advisors, accountants, appraisers, etc., and costs
in connection with making road show presentations with respect to the offering
of the Units.
(c) Notwithstanding anything to the contrary in this Xxxxxxx
0, Xxxxx Xxxxxxx, Viking and REI agree to pay or reimburse any of the expenses
referred to in Sections 9(a) and (b) in excess of $750,000.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Units may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Partnership by notifying you,
or by you, as Representatives of the several Underwriters, by notifying the
Partnership.
40
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Units which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Firm Units which such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of the Firm Units which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Units set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Units set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 8 of the
Agreement Among Underwriters of Friedman, Billings, Xxxxxx & Co., Inc. and
McDonald Investments Inc., to purchase the Firm Units which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. If
any one or more of the Underwriters shall fail or refuse to purchase Firm Units
which it or they are obligated to purchase on the Closing Date and the aggregate
number of Firm Units with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Units which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Partnership for the purchase of such Firm Units by one or more
non-defaulting Underwriters or other party or parties approved by you and the
Partnership are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any party hereto (other than the
defaulting Underwriter). In any such case which does not result in termination
of this Agreement, either you or the Partnership shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If any one or
more of the Underwriters shall fail or refuse to purchase Additional Units which
it or they are obligated to purchase hereunder on the Option Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Units set forth opposite its name in Schedule I hereto
bears to the aggregate number of Firm Units set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 8 of the Agreement Among Underwriters of Friedman,
Billings, Xxxxxx & Co., Inc. and McDonald Investments Inc., to purchase the
Additional Units which such defaulting Underwriter or Underwriters are
obligated, but fail or refuse, to purchase. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Partnership, purchases Units which a defaulting Underwriter
is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
41
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to any Atlas Entity or Atlas Party, by notice to the Partnership, if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Units), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Virginia shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Units
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Units by the
Underwriters. Notice of such termination may be given to the Partnership by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the 12th and 14th paragraphs under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus, constitute
the only information furnished by or on behalf of the Underwriters through you
as such information is referred to in Sections 6(a) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 7, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to Atlas America, REI, Viking or any of
the Atlas Parties, at the office of the Partnership at 000 Xxxxxx Xxxx, Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000, Attention: [______________________], or (ii) if to
you, as Representatives of the several Underwriters, care of Friedman, Billings,
Xxxxxx & Co., Inc., Potomac Tower, 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: ____________________.
This Agreement has been and is made solely for the benefit of the
several Underwriters, Atlas America, REI, Viking, the Atlas Parties, their
directors and officers, and the other controlling persons referred to in Section
7 hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Units in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
42
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
43
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Operating Partnership, the General Partner, Atlas
America, REI, Viking and the several Underwriters.
Very truly yours,
ATLAS PIPELINE PARTNERS, L.P.
By: ATLAS PIPELINE PARTNERS G.P., LLC,
its General Partner
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ATLAS PIPELINE OPERATING PARTNERSHIP, L.P.
By: ATLAS PIPELINE PARTNERS G.P., LLC,
its General Partner
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
44
ATLAS PIPELINE PARTNERS G.P., LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ATLAS AMERICA, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
RESOURCE ENERGY, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
VIKING RESOURCES CORPORATION
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Confirmed as of the date first
above mentioned on behalf of itself
and the other several Underwriters
named in Schedule I hereto.
45
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
As Representative of the Several Underwriters
By: _________________________________
Managing Director
McDONALD INVESTMENTS
As Representative of the Several Underwriters
By: _________________________________
Managing Director
46
SCHEDULE I
Atlas Pipeline Partners, L.P.
Number of Firm Units
Underwriter to be Purchased
----------- ---------------
Friedman, Billings, Xxxxxx & Co., Inc.........................................
McDonald Investments, Inc. ...................................................
Total
EXHIBIT A
Entity Jurisdiction in which registered or qualified
------ ---------------------------------------------
Atlas America, Inc.
Resource Energy, Inc.
Viking Resources Corporation
EXHIBIT B
[Letterhead of General Partner]
Atlas Pipeline Partners, L.P.
Public Offering of Common Units
----------------------------
Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Atlas Pipeline
Partners, L.P., a Delaware limited partnership (the "Partnership"), Atlas
Pipeline Operating Partnership, L.P., a Delaware limited partnership, Atlas
Pipeline Pennsylvania, LLC, a Pennsylvania limited liability company, Atlas
Pipeline OH LLC, an Ohio limited liability company, Atlas Pipeline New York,
LLC, a New York limited liability company, Atlas America, Inc., a Pennsylvania
corporation, and Friedman, Billings, Xxxxxx & Co., Inc. and McDonald Investments
Inc. as representatives of the underwriters, relating to an underwritten public
offering of common units representing limited partner interests (the "Common
Units") of the Partnership.
To induce you to enter into the Underwriting Agreement, the undersigned
agrees that it will not offer, sell, contract to sell or otherwise dispose of
any Subordinated Units (as defined in the Underwriting Agreement), any
securities that are convertible into, or exercisable or exchangeable for, or
that represent the right to receive, Common Units or Subordinated Units or any
securities that are senior to or pari passu with Common Units for a period of
two (2) years after the date of the Prospectus (as defined in the Underwriting
Agreement) without your prior written consent.
If for any reason the Underwriting Agreement is terminated before the
Closing Date (as defined in the Underwriting Agreement), the agreement set forth
above shall likewise be terminated.
ATLAS PIPELINE GP, LLC
By:
its Managing Member
By:
Name:
Title:
