SECOND AMENDMENT TO BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS
Exhibit
10(j)(2)
SECOND
AMENDMENT TO BASE CONTRACT FOR SALE AND
PURCHASE
OF NATURAL GAS
SECOND
AMENDMENT TO
BASE
CONTRACT FOR THE SALE AND PURCHASE OF NATURAL GAS
This
Second Amendment To Base Contract For The Sale And Purchase Of Natural Gas
(this
"Amendment")
is
made and entered into on December 18, 2006 (the “Effective
Date”)
by and
among Atlas America, Inc. a Delaware corporation ("Atlas
DE"),
Viking Resources, LLC, a Pennsylvania limited liability company ("Viking"),
Atlas
Resources, LLC, a Pennsylvania limited liability company ("Atlas
Resources")
Atlas
Noble, LLC, a Delaware limited liability company ("Atlas
Noble"),
Resource Energy, LLC, a Delaware limited liability company ("Resource
Energy"
and
together with Viking, Atlas Resources and Atlas Noble, the "ATN
Subsidiaries"),
and
UGI Energy Services, Inc. d/b/a/ GASMARK, a Pennsylvania corporation
("GASMARK").
This
Amendment modifies, supplements, forms part of, and amends that certain Base
Contract for the Sale and Purchase of Natural Gas entered into as of November
13, 2002 between GASMARK and Viking Resources Corporation and assigned by Viking
Resources Corporation to Atlas PA by Assignment and Assumption Agreement dated
October 1, 2004 (the "Base
Contract")
and
amended by First Amendment to Base Contract for the Sale and Purchase of Natural
Gas dated November 22, 2005. Capitalized terms used in this Amendment that
are
not herein defined will have the meanings ascribed to them in the Base Contract.
In the event of a conflict between the terms of this Amendment and the Base
Contract, the terms of this Amendment shall apply.
WHEREAS,
Atlas DE will transfer all of its natural gas and oil production and development
assets to Atlas Energy Resources, LLC ("ATN")
and
its subsidiaries in connection with the initial public offering of ATN and
Atlas
DE wishes to assign its rights, duties and interests as seller under the Base
Contract to the ATN Subsidiaries which will supply gas under the Base Contract
as of the Effective Date, and GASMARK has agreed to the assignment to and
assumption by the ATN Subsidiaries;
NOW,
THEREFORE, for and in consideration of the premises and mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be bound hereby the Parties
hereby agree as follows:
I.
ASSIGNMENT
AND ASSUMPTION
1.1 Assignment.
Effective as of the Effective Date, Atlas DE does hereby sell, grant, convey,
assign, transfer and set over to the ATN Subsidiaries, jointly and severally,
all of its right, title and interest in and to the Base Contract and all
transactions confirmed thereunder.
1.2 Consent
to Assignment.
GASMARK
hereby consents to the assignment of the Base Contract, and all transactions
confirmed thereunder, from Atlas DE to the ATN Subsidiaries effective as of
the
Effective Date.
1.3 Assumption.
The ATN
Subsidiaries, jointly and severally, hereby assume and agree to pay, discharge
or perform, as appropriate, the Base Contract and all transactions confirmed
thereunder, and such Base Contract is hereby declared to be the debts,
liabilities and obligations of the ATN Subsidiaries from and after the Effective
Date.
1.4 Release
and Discharge.
Upon
execution of this Amendment by the ATN Subsidiaries, Atlas DE will be released
from
any
liability or obligation under this Base Contract and any transaction confirmed
thereunder, that arises or accrues after the Effective Date of assignment.
II.
MISCELLANEOUS
2.1 Warranties.
Each
Party represents and warrants to the others that it has the corporate authority
to execute, deliver and perform this Amendment and has taken all actions
necessary to secure all necessary approvals required to be secured in connection
therewith. The execution, delivery and performance of this Amendment and the
Base Contract have been duly authorized by all necessary corporate
action.
2.2. No
Third Party Benefit.
Nothing
contained in this Amendment, express or implied, is intended to or shall be
construed to confer upon or give any person, firm, or corporation, other than
the Parties and their respective permitted successors and assigns, any remedy
or
claim under, or by reason of, this Amendment, or any term, covenant or condition
hereof. All conditions, promises and agreements contained in this Amendment
shall be for the sole and exclusive benefit of the Parties and their respective
permitted successors and assigns.
2.4 Headings.
The
headings contained in this Amendment are for convenience of reference only
and
shall not affect, in any way, the meaning or interpretation of this
Amendment.
2.5 Amendments;
Waivers.
To be
binding, any amendment of this Amendment must be effected by an instrument
in
writing signed by all of the Parties. Rights
hereunder shall not be waived, except pursuant to a writing signed by the Party
against which enforcement of the waiver is sought.
2.6 Rights
and Remedies.
The
rights and remedies granted under this Amendment shall not be exclusive but
shall be in addition to all other rights and remedies available under the Base
Contract, at law or in equity.
2.7 Expenses
of Negotiation.
All
costs and expenses incurred in connection with this Amendment are to be borne
by
the Party incurring such costs.
2.8 Severability.
It is
the intention of the Parties hereto that whenever possible, each provision
of
the Base Contract and this Amendment will be interpreted in such manner as
to be
effective and valid under applicable law, but that if any provision of the
Base
Contract or this Amendment, as the case may be, is held to be invalid, illegal
or unenforceable in any respect under any applicable law, such invalidity,
illegality or unenforceability will not affect any other provision, and the
Base
Contract and this Amendment, as the case may be, will be reformed, construed
and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein and/or therein, as the case may be.
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2.9 Counterparts;
and Facsimile Signatures.
This
Amendment may be executed, including by facsimile signature, in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which together shall constitute one and the same
instrument.
2.10 Governing
Law.
The
interpretation and performance of this Amendment shall be governed by the laws
of the jurisdiction indicated in the Base Contract.
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IN
WITNESS WHEREOF, the Parties hereto have duly executed this instrument or have
caused this instrument to be duly executed on their behalf, on the Effective
Date.
|
UGI
ENERGY SERVICES, INC.
By: ___________________________
Name:Xxxxxxx
X. Xxxx
Title: President
|
ATLAS AMERICA, INC.,
By: _____________________________
Name: Xxxxxxx
X. Xxxxx
Title: Chief
Financial Officer
|
|
VIKING RESOURCES, LLC
By: ___________________________
Name: Xxxxxxx
X. Xxxxx
Title: Chief
Financial Officer
|
ATLAS RESOURCES, LLC
By: _____________________________
Name: Xxxxxxx
X. Xxxxx
Title:
Chief
Financial Officer
|
|
ATLAS
NOBLE, LLC
By: ___________________________
Name: Xxxxxxx
X. Xxxxx
Title: Chief
Financial Officer
|
RESOURCE ENERGY, LLC
By: _____________________________
Name: Xxxxxxx
X. Xxxxx
Title:
Chief
Financial Officer
|
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