ATLAS PIPELINE PARTNERS, L.P.
________________ Common Units
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
_____________ __, 1999
XXXXXXXX, XXXXXXXX, XXXXXX & CO., INC.
McDONALD INVESTMENTS
as Representatives of the Several Underwriters named in Schedule I hereto
c/o Xxxxxxxx, Xxxxxxxx, 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
______________ 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 _____________ 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, an Ohio corporation
("Viking"), AIC, Inc., a Pennsylvania corporation ("AIC"), Atlas Energy Group,
Inc., an Ohio corporation ("AEG") and REI-NY, Inc., a New York corporation
("REI_NY") (collectively, the "Atlas Entities"). [Atlas Pipeline Partners G.P.,
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").
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The Atlas Entities represent and warrant that, prior to the date
hereof, the following transactions occurred:
(a) AIC formed Atlas Pipeline Pennsylvania, LLC, a Pennsylvania limited
partnership ("PA LLC") to which it contributed all of the issued and outstanding
capital stock of Mercer 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) Xxxxxxxx Associates, LP, a ________ limited partnership was
dissolved and its interest in Shongum J.V. was distributed to REI.
(e) Shongum J.V. was dissolved and [the beneficial interest in] its
assets were distributed to REI, subject to any indebtedness of Shongum J.V.
(f) REI formed the following companies: _________, a Pennsylvania
corporation ("Columbiana Mergerco"), __________, a Pennsylvania corporation
("Other Mergerco"), [Columbiana LLC, a Pennsylvania limited liability company
("Columbiana LLC")] and ___________, a Pennsylvania limited liability company
("Other LLC").
(g) St. Julien III, a Pennsylvania corporation ("St. Julien"), merged
into Columbiana Mergerco and Other Mergerco with Columbiana Mergerco being
allocated the Columbiana gathering system and any related, qualified debt and
Other Mergerco being allocated all other assets and debt of St. Julien.
(h) Columbiana Mergerco was merged with and into Atlas Pipeline Ohio
LLC, an Ohio Limited liability company ("OH LLC"), and other Mergerco was merged
with and into Other LLC.
(i) Resource America, Inc., a Delaware corporation ("Resource")
conveyed its interest in the Shongum gathering system to OH LLC for the benefit
of REI.
(x) XXX contributed the Springcreek and Shongum 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.
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(k) AEG contributed the Champion and Xxxxxxx 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.
(l) 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.
(m) [REI formed the General Partner and Atlas Pipeline Partners G.P.,
Inc., a Delaware corporation was merged with and into the General Partner.]
(n) REI-NY created a limited liability company, Atlas Pipeline New York
LLC, a New York limited liability company ("NY LLC"), to which it contributed
all of its gathering systems in exchange for all of the member interests in NY
LLC and the assumption by NY LLC of the related, qualified debt.
(o) REI, AEG and Viking each contributed all their member interests in
OH LLC in exchange for __%, __% and __% member interests, respectively, in the
General Partner.
(p) AIC and Viking contributed all of their member interests in PA LLC
to the General Partner in exchange for __% and __% member interests,
respectively, in the General Partner.
(q) REI-NY contributed all of its member interests in NY LLC to the
General Partner in exchange for __% member interests in the General Partner.
(r) The General Partner and REI formed the Partnership to which the
General Partner contributed $10 in exchange for a 1% general partner interest
and REI contributed $990 in exchange for a 99% limited partner interest in the
Partnership.
(s) The General Partner and the Partnership formed the Operating
Partnership to which the General Partner contributed $10 in exchange for 1%
general partner interest and the Partnership contributed $990 in exchange for a
99% limited partner interest in the Operating Partnership.
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 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 $24.7 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, _________ units representing subordinated
limited partner interests in the Partnership (the "Subordinated Units"),
representing an approximately 20% interest in the Partnership and the Incentive
Distribution Rights (as defined in the Agreement of Limited Partnership (as the
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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 OH LLC, PA LLC and NY LLC to satisfy all indebtedness assumed by such
entities in connection with the acquisition of the gathering systems, and such
entities will repay such indebtedness; (ix) the General Partner will deliver an
irrevocable letter of credit in favor of the Partnership as described in the
Prospectus (as defined below) to support its obligation under the Distribution
Support Agreement (as defined below); (x) Atlas America and the Operating
Partnership will enter into the Master Gathering Agreement and the Omnibus
Agreement (each as defined below); and (xi) Atlas America, Viking and REI will
enter into the Joinder Agreement (as defined below) pursuant to which Viking and
REI will subject (and make available to Atlas America for such purposes) their
drilling acreage and gas gathering assets to the provisions of the Master
Gathering Agreement and the Omnibus Agreement.
The conveyances and mergers described in clauses (a) - (s) above and
the transactions described above in clauses (i) through (xi) are collectively
referred to as the "Transactions." In connection with the consummation of the
Transactions, the Partnership, the Operating Partnership, the General Partner,
OH LLC, PA LLC and NY LLC (individually an "Atlas Party" and collectively, the
"Atlas Parties") 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").
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.
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
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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 __________, 1999, 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 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 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 ___________ 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
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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.
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
Xxxxxxxx, 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
December __, 1999 (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
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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.
(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.
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(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.
(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
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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.
(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, the Partnership and
the General Partner will not (i) offer, sell, contract to sell or
otherwise dispose of any Common Units or 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, or (ii) 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 Section ____ of the
[Partnership Agreement/Omnibus Agreement].
(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
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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.
(n) Each of the Atlas Parties will take such steps as shall be
necessary to ensure that none of them shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(o) 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.
(p) The General Partner and the Partnership will cause each of
the Atlas Entities and remaining Atlas Parties 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 OH LLC, PA
LLC and NY LLC to the properties and assets owned by them as a result
of the Transactions.
6. Representations and Warranties of the Atlas Parties. Atlas America
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, taken as a whole, or the ability of any Atlas Entity or Atlas
Party to perform its obligations under this Agreement or any Operative Document
(as defined below) to which it is a party or to own and operate the gathering
assets in all material respects as currently operated by the respective Atlas
Entities (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 OH LLC, PA LLC and NY LLC has been duly formed and is a
limited liability company validly existing and in good standing under the laws
of the state of its organization 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 OH LLC, PA LLC and NY LLC 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, REI, AIC, AEG, Viking and REI-NY 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 __% general partner interest in the Partnership; and
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 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 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.
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(h) At the Closing Date, after giving effect to the Transactions, the
General Partner will own limited partner interests in the Partnership
represented by ______ 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 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 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.
(k) At the Closing Date, 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 the Atlas Entities will own such member interests free and
clear of all liens, encumbrances, security interest, equities, charges or
claims.
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(l) 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 OH LLC, PA LLC and NY LLC, 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. 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 or Atlas Parties 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.
(n) The execution and delivery of, and the performance by Atlas America
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
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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 Operating Partnership and Atlas America 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 Partnership, the Operating Partnership,
the General Partner and Atlas America and will be a valid and legally binding
agreement of each of them enforceable against each of them in accordance with
its terms;(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; and (vii) a joinder agreement as described in the
Prospectus (the "Joinder Agreement") will have been authorized, executed and
delivered by each of Atlas America, REI and Viking and will be a valid and
legally binding agreement of each 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,
the Distribution Support Agreement, the Joinder Agreement [and other agreements]
are herein collectively referred to as the "Operative Agreements."
(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 or Atlas Parties 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 or Atlas Parties, (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 or Atlas Parties is a party or by which any of them or any of their
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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 or Atlas
Parties 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, 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 or Atlas Parties 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 or Atlas Parties 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.
(s) The accountants, Xxxxx Xxxxxxxx LLP and XxXxxxxxxx Xxxxxxx, 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 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 dated _________, 1999 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
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periods involved, except to the extent disclosed therein. The selected
historical information set forth in the Registration Statement, the Prepricing
Prospectus dated ___________, 1999 and the Prospectus (and any amendment or
supplement thereto) under the captions "Financial Summary 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 dated ___________, 1999 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 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 dated ___________, 1999 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 or Atlas
Parties 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,
taken as a whole, (ii) there has not been any change in the capitalization, or
material increase in the short-term debt or long-term debt, of the Atlas
Entities or Atlas Parties 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.
(v) There are no legal or governmental proceedings pending or, to the
knowledge of Atlas America, threatened, against any of the Atlas Entities or
Atlas Parties, or to which any of the Atlas Entities or 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) The Atlas Entities party to the several Conveyance Agreements have,
and upon execution and delivery of the Conveyance Agreements on the Closing
Date, OH LLC, PA LLC and NY LLC will have, good and marketable title in fee
simple to all real property and good title to all personal property described in
the Prospectus to be owned by them, free and clear of all liens, claims,
security interests or other encumbrances except (i) as described in the
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Prospectus and (ii) such as do not materially interfere with the use of such
properties taken as a whole as they have been used in the past and are proposed
to be used in the future as described in the Prospectus; [and all real property
and buildings held under lease by the Atlas Entities are held by such entities
and upon consummation of the Transactions on the Closing Date, will be held by
OH LLC, PA LLC or NY LLC under valid and subsisting and enforceable leases with
such exceptions as do not materially interfere with the use of such properties
taken as a whole as they have been used in the past and are proposed to be used
in the future as described in the Prospectus]. The Conveyance Agreements will
be, as of the Closing Date, sufficient (legally and otherwise) to transfer or
convey to OH LLC, PA LLC and NY LLC all properties not already held by them that
are, individually or in the aggregate, required to enable them to conduct their
respective operations (in all material respects as contemplated by the
Prospectus), subject to the conditions, reservations and limitations contained
in the Conveyance Agreements and those set forth in the Prospectus. OH LLC, PA
LLC and NY LLC 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 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 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
taken as a whole.
(z) Upon execution and delivery of the Conveyance Agreements on the
Closing Date each of OH LLC, PA LLC and NY LLC will have, such consents,
easements, rights-of-way or licenses from any person ("rights-of- way") as are
necessary 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 rights-of-way which, if not obtained, would not have, individually or
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in the aggregate, a Material Adverse Effect; each of the Atlas Parties 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 taken as a whole.
(aa) Each of 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) To the knowledge of Atlas America, none of the Atlas Entities or
Atlas Parties nor any employee or agent of any of the Atlas Entities or Atlas
Parties has made any payment of funds of an Atlas Entity or Atlas Party or
received or retained any funds in either case in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(cc) 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.
(dd) At the Closing Date, after giving effect to the Transactions, the
Atlas Parties will own or possess, all patents, trademarks, trademark
registrations, service marks, service mark 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 with respect to the foregoing.
(ee) None of the Atlas Parties 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
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by" an "investment company" within the meaning of the Investment Company Act of
1940, as amended, (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, (iii) a "gas utility,"
"public utility" or "utility" within the meaning of [insert applicable state
statutes] or (iv) a "public utility" or "utility" or otherwise subject to rate
and terms of service regulation within the meaning of the applicable laws of any
state in which any such Atlas Party does business.
(ff) None of the Atlas Entities or 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.
(gg) None of the Atlas Entities or 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. .
(hh) Except as described in or contemplated by the Prospectus, no
material labor dispute with the employees of any of the Atlas Entities exists
or, to the knowledge of Atlas America, is imminent.
(ii) At the Closing Date, after giving effect to the Transactions, the
Atlas Parties 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 Ohio LLC, PA LLC or NY LLC 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.
(jj) 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,
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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.
(kk) 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.
(ll) 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 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 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,
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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 or any Atlas Party may
otherwise have.
(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 or an Atlas Party, such Underwriter Indemnified Party
shall promptly notify Atlas America and the Atlas Parties in writing, and the
Partnership 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 the indemnifying party is foreclosed by reason of such
delay from asserting a defense otherwise available to it. 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 or an Atlas Party
has agreed in writing to pay such fees and expenses, (ii) Atlas America or the
Atlas Parties 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 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 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 Atlas America and the Atlas Parties 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 or such Atlas Parties. It is
understood, however, that Atlas America 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
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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 or Atlas America 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 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.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless Atlas America and the Atlas Parties, their respective
directors and officers who sign the Registration Statement, and any person who
controls Atlas America 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 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 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 and the Atlas Parties by paragraph (b) above (except that if
Atlas America or an Atlas Party 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 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.
(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
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proportion as is appropriate to reflect the relative benefits received by Atlas
America 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 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 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 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 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 and the Atlas Parties or any other affiliate of Atlas
America 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 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.
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(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 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, the Atlas Parties or any
of their respective directors or officers or any person controlling Atlas
America 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 or the Atlas Parties or any of their respective directors or officers or
any person controlling Atlas America 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:
(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, 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, any of the
Atlas Parties or the operations of the gathering assets transferred to OH LLC,
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PA LLC or NY LLC 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 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 and Atlas Parties,
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.
(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
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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).
(vii) Each of OH LLC, PA LLC and NY LLC has been duly formed
and is a limited liability company validly existing and in good
standing under the laws of the state of its organization, 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) None of OH LLC, PA LLC or NY LLC is duly registered or
qualified as a foreign limited liability company for the transaction of
business under the laws of any state; and to such counsel's knowledge,
there are no 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 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.
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(x) Each of Atlas America, REI, AIC, AEG, Viking and REI-NY 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).
(xi) The General Partner is the sole general partner of the
Partnership, with a __% 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 (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 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 ________ Subordinated Units issued to the General
Partner pursuant to the Partnership Agreement and the limited partner
interests represented thereby have been duly authorized and validly
issued in accordance with the Partnership Agreement and are fully paid
(to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under "The Partnership
Agreement--Limited Liability"); after giving effect to the
Transactions, the General Partner will own ________ 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.
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(xiii) The ________ 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) The General Partner owns a 1.0101% general partner
interest in the Operating Partnership and the Partnership owns a
98.9899% limited partner interest in the Operating Partnership; such
interests have been duly authorized and validly issued in accordance
with the Operating Partnership Agreement and are fully paid (to the
extent required under the Operating 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 the General Partner and the
Partnership 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.
(xv) 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
OH LLC, PA LLC and NY LLC, 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.
(xvi) 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, 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
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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.
(xvii) 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.
(xviii) This Agreement has been duly authorized and validly
executed and delivered by Atlas America and each of the Atlas Parties.
(xix) To the knowledge of such counsel, none of the Atlas
Entities or Atlas Parties 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.
(xx) To the knowledge of such counsel, each of the Atlas
Parties 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 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.
(xxi) Each of the Operative Agreements to which any of the
Atlas Entities or Atlas Parties is a party have been duly authorized
and validly executed and delivered by each of the Atlas Entities and
Atlas Parties parties thereto and constitutes a valid and binding
obligation of each of the Atlas Entities and Atlas Parties 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, applicable law relating to fiduciary duties and an
implied covenant of good faith and fair dealing.
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(xxii) 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 and
Atlas Parties 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 or Atlas
Parties, (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 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 or an Atlas Party 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 States of
New York, Pennsylvania or Ohio or federal law, 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 or Atlas
Parties which in the case of clauses (B), (C) or (D) would reasonably
be expected to have a Material Adverse Effect.
(xxiii) 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 or Atlas Parties
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.
(xxiv) 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".
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(xxv) The Registration Statement was declared effective under
the Act on _______________, 1999; 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.
(xxvi) The Registration Statement and the Prospectus (except
for the financial statements and the notes and the schedules thereto
and the other financial, statistical and accounting data included in
the Registration Statement or the Prospectus, as to which such counsel
need not express any opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
promulgated thereunder.
(xxvii) To the knowledge of such counsel, (A) there is no
legal or governmental proceeding pending or threatened to which any of
the Atlas Entities or Atlas Parties 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 or
Atlas Parties 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.
(xxviii) 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.
(xxix) 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.
(xxx) The Common Units have been approved for listing on the
AMEX, subject only to official notice of issuance.
(xxxi) 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.
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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 and (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.
-33-
(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 [Atlas Entities and Atlas Parties],
dated the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) Each of [the Atlas Entities and Atlas Parties, 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) [[OH LLC, PA LLC or NY LLC] has all requisite power and
authority as a limited liability company under the laws of the State of
[Ohio, Pennsylvania or New York, as applicable] to own or lease its
properties and to conduct its business in the State of [Ohio,
Pennsylvania or New York, as applicable]
(iii) 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 or Atlas Parties 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 taken as a whole.
(iv) Each of the Conveyance Agreements relating to the
transfer of property in the State of [Ohio, Pennsylvania or New York,
as applicable], 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 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); 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, except motor vehicles or other property requiring
conveyance of certificated title as to which the Conveyance Agreements
are sufficient (legally and otherwise) to compel delivery of such
certificated title.
-34-
(v) Each of the bills of sale, assignment and assumption
agreements, merger agreements, deeds and other instruments of
assignment and conveyance (including, without limitation, the form of
the exhibits and schedules thereto) 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, and, upon proper recordation of any of
such bills of sale, assignment and assumption agreements, merger
agreements, deeds and other instruments of assignment and conveyance in
the State of [Ohio, Pennsylvania or New York, as applicable], will
constitute notice to all third parties under the recordation statutes
of the State of [Ohio, Pennsylvania or New York, as applicable]
concerning record title to the assets transferred thereby; recordation
in the office of the County Clerk for each county in which [OH LLC, PA
LLC or NY LLC] 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,
merger agreements, deeds and other instruments of assignment and
conveyance of interests in real property located in such county.
(vi) 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 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 or Atlas Parties 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.
(vii) To the knowledge of such counsel, each of the Atlas
Entities and Atlas Parties has such permits, consents, licenses,
franchises and authorizations ("permits") issued by the appropriate
[Ohio, Pennsylvania or 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
-35-
adverse effect upon the operations conducted in the State of [Ohio,
Pennsylvania or New York, as applicable] by the Atlas Parties, taken as
a whole; and, to the knowledge of such counsel, none of the Atlas
Entities or Atlas Parties 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.
(viii) None of the Atlas Parties is now, and after the sale of
the Units by the Partnership and application of the net proceeds from
such sale as described in the Prospectus under the caption "The
Transactions; Use of Proceeds" will be a "gas utility", "public
utility" or "utility" within the meaning of [insert any applicable
state statute].
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 or any of the Atlas Parties may be subject,
and (F) state that they are relying as to certain matters on the opinions of
Xxxxxx & Xxxxx L.L.P. and [others].
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.
-36-
(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 and XxXxxxxxxx and
Xxxxxxx, independent certified public accountants, substantially in the
forms heretofore approved by you.
(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 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 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 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 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 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 OH LLC, PA LLC and NY
LLC contemplated in the Conveyance Agreements shall have been
-37-
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 Partnership, the General Partner and
the Operating Partnership, 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.
(n) There shall have been furnished to you at the Closing
Date, a certificate reasonably satisfactory to you, signed on behalf of
Atlas America by the President or a Vice President thereof,
respectively, to the effect that (A) the representations and warranties
of Atlas America 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) Atlas America 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 Partnership shall have
furnished to you a letter substantially in the form of Exhibit B hereto
from each officer and each director of the General Partner.
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.
-38-
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.
(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.
-39-
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.
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 20 of the
[Master Agreement Among Underwriters of Xxxxxxxx, Billings, Xxxxxx & Co., 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 ___ of
the Master Agreement Among Underwriters of Xxxxxxxx, Billings, Xxxxxx & Co.,
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.
-40-
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
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 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 _____________ 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 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 Xxxxxxxx, 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, 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.
-41-
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.
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.
-42-
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Operating Partnership, the General Partner, OH LLC,
PA LLC, NY LLC, Atlas America, Inc. 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:
------------------------------------------
ATLAS PIPELINE PARTNERS G.P., LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
-43-
ATLAS PIPELINE PENNSYLVANIA, LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ATLAS PIPELINE OHIO, LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ATLAS PIPELINE NY LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ATLAS AMERICA, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
-44-
Confirmed as of the date first
above mentioned on behalf of
itself and the other several
Underwriters named in Schedule I
hereto.
XXXXXXXX, XXXXXXXX, XXXXXX & CO., INC.
As Representative of the Several Underwriters
By:
----------------------------------------
Managing Director
XxXXXXXX INVESTMENTS
As Representative of the Several Underwriters
By:
----------------------------------------
Managing Director
-45-
SCHEDULE I
Atlas Pipeline Partners, L.P.
Number of Firm Units
Underwriter to be Purchased
----------- ---------------
Xxxxxxxx, Xxxxxxxx, Xxxxxx & Co., Inc...................
McDonald Investments....................................
Total
EXHIBIT A
Entity Jurisdiction in which registered or qualified
------ ---------------------------------------------
Atlas America, Inc.
Resource Energy, Inc.
Viking Resources Corporation
Atlas Energy Group, Inc.
AIC, Inc.
REI-NY, Inc.
EXHIBIT B
[Letterhead of officer, director or holder of Common Units or
Subordinated Units]
Atlas Pipeline Partners, L.P.
Public Offering of Common Units
----------------------------
Xxxxxxxx, Xxxxxxxx, 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. as representative 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 Common Units or 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 180 days after the date of the Prospectus (as
defined in the Underwriting Agreement) without your prior written consent.
Exh. B-1
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.
Yours very truly,
[Signature of officer, director or common
Unitholder]
[Name and address of officer, director or common
Unitholder]
Exh. B-2
