PURCHASE AGREEMENT (this "Agreement") dated as of January 18, 2002,
among New Vulcan Coal Holdings, L.L.C., a Delaware limited liability company
(the "Purchaser"), and the following (collectively known as the "Sellers"): AIC,
INC., a Delaware corporation. ("AIC"); VIKING RESOURCES CORPORATION, a
Pennsylvania corporation ("Viking"); RESOURCE ENERGY, INC., a Delaware
corporation ("Resource Energy"); ATLAS ENERGY GROUP, INC., an Ohio corporation
("Atlas Energy"), ATLAS RESOURCES, INC., a Pennsylvania corporation ("Atlas
Resources") and REI-NY, INC., a Delaware corporation ("REI-NY").
WHEREAS, the Sellers, collectively, own all the limited
liability company membership interests (the "Company Interests") of Atlas
Pipeline Partners GP, LLC, a Delaware limited liability company (the "Company").
WHEREAS, the Purchaser desires to purchase, and the Sellers
desire to sell to the Purchaser, all of the Company Interests, on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual benefits to be derived from this Agreement and the representations,
warranties, covenants, agreements and conditions contained herein, the parties
hereto hereby agree as set forth below.
Article I
DEFINITIONS
Capitalized terms used but not defined herein have the
meanings set forth in Annex I hereto.
Article II
PURCHASE AND SALE OF COMPANY INTERESTS; CLOSING
2.1 The Purchase and Sale of Company Interests.
In accordance with, and subject to, the provisions of this Agreement,
at the Closing (as defined below), the Sellers shall sell and transfer to the
Purchaser, and the Purchaser shall purchase from the Sellers, all of the Company
Interests for consideration of $29,000,000 less the amount set forth in Section
7.4 (such amount, the "Purchase Price").
2.2 Taking of Necessary Action; Further Assurances.
Prior to the Closing Date, and subject to the terms and conditions
contained in this Agreement, the parties hereto shall use reasonable business
efforts to take or cause to be taken all such actions as may be necessary or
appropriate in order to effectuate the transactions contemplated hereby.
2.3 Closing.
The closing (the "Closing") of the consummation of the transactions
contemplated by this Agreement, unless another date or place is agreed to by the
parties, shall take place at the offices of X'Xxxxxxxx LLP, 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, subject to the satisfaction or waiver (to the
extent the same may be waived) of the conditions set forth in Article VI, on the
Closing Date, as defined in Section 2.1 of the Contribution Agreement (such date
on which the Closing is consummated being referred to herein as the "Closing
Date").
2.4 Closing Deliveries; Payment of Purchase Price.
At the Closing, upon delivery by the Sellers to the Purchaser of the
deliveries set forth in Section 6.2(g), the Purchaser shall pay to the Sellers
the Purchase Price on the Closing Date, by wire transfer to an account
designated by the Sellers to the Purchaser in writing at least three Business
Days prior to the Closing Date.
Article III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers jointly and severally represent and warrant to the
Purchaser, as of the date hereof, as set forth below.
3.1 Title to the Company Interests.
(a) The Sellers are the lawful owners, of record and beneficially, of
all of the Company Interests in the amounts set forth on Schedule 3.1 and have
good and marketable title to such securities, free and clear of any Encumbrances
whatsoever (except for the Encumbrances set forth on Schedule 3.1, all of which
shall be terminated, released, discharged and satisfied in full prior to the
Closing) and with no restriction on the voting rights and other incidents of
record and beneficial ownership pertaining thereto. Except for this Agreement or
as set forth on Schedule 3.1 (all of which items set forth thereon shall be
terminated, released, discharged and satisfied in full prior to or at Closing),
there are no agreements or understandings to which the Company and/or any Seller
is a party or is bound with respect to, directly or indirectly, the acquisition,
disposition or voting of, or any other matters pertaining to, any of the Equity
Interests of the Company.
(b) Except as set forth on Schedule 3.1 (all of which shall be
terminated, released, discharged and satisfied in full prior to the Closing),
neither the Company nor any of its assets is subject to any liability,
obligation, pledge, guaranty, security interest, security agreement, support
agreement, lien or other Encumbrance.
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3.2 Authority; Noncontravention; Consents.
(a) AIC is a corporation duly formed, validly existing and in good
standing under the laws of the state of Delaware. Viking is a corporation duly
formed, validly existing and in good standing under the laws of the Commonwealth
of Pennsylvania. Resource Energy is a corporation duly formed, validly existing
and in good standing under the laws of the state of Delaware. Atlas Energy is a
corporation duly formed, validly existing and in good standing under the laws of
the state of Ohio. Atlas Resources is a corporation duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania. REI-NY is a corporation duly formed, validly existing and in good
standing under the laws of the state of Delaware. Each Seller has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such qualification necessary
and the failure to be so qualified or in good standing would not have a Material
Adverse Effect on such Seller. Each Seller has made available to the Purchaser
true, correct and complete copies of its Fundamental Documents. Each Seller has
all the respective requisite corporate power and authority to enter into this
Agreement and any and all instruments and documents necessary or appropriate in
order to effectuate fully the terms and conditions of this Agreement and all
related transactions contemplated hereby and to perform their respective
obligations hereunder. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of each Seller,
this Agreement has been duly and validly executed and delivered by each Seller,
and this Agreement is the valid and binding obligation of each Seller,
enforceable against each Seller in accordance with its terms, except as such
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other Laws affecting creditor's rights generally
or by general principles of equity.
(b) Except as set forth on Schedule 3.2, neither the execution,
delivery and performance of this Agreement by each Seller nor the consummation
of the transactions contemplated hereby nor compliance by each Seller with any
of the provisions hereof will (i) conflict with, or result in any violations of,
or cause a breach or default (or an event that, upon notice or lapse of time, or
both, would result in a breach or default) under, or give rise to a right of
termination, amendment, cancellation or acceleration of any obligations
contained in or the loss of any material benefit under (x) the Fundamental
Documents of such Seller or (y) any term, condition or provision of any Contract
to which such Seller is a party or by which such Seller or any of its properties
may be bound or (ii) conflict with or result in any violations of any Law
applicable to such Seller or any of its properties, except, in the case of
conflicts or violations pursuant to clause (i)(y) or (ii), that could not have,
individually or in the aggregate, a Material Adverse Effect on the Company or
the Sellers.
(c) Except as contemplated by this Agreement, no Permit, authorization,
consent or approval of or by, or any notification of or filing with, any Person
(governmental or private) is required in connection with the execution, delivery
and performance by any of the Sellers of this Agreement or the consummation by
the Sellers of the transactions contemplated hereby.
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3.3 Organization; Good Standing; Qualification and Power of the Company.
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The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite limited liability company power and authority to own or
lease and operate its properties and to conduct its business as it is presently
conducted and as proposed to be conducted. The Company is duly licensed,
authorized or qualified as a foreign limited liability company for the
transaction of business and is in good standing under the laws of each
jurisdiction in which its ownership, lease or operation of property, nature of
activities or conduct of business makes such qualification necessary except
where the failure to be so qualified or in good standing is not reasonably
likely to have a Material Adverse Effect on the Company. The Sellers have
delivered to the Purchaser (or their counsel) true, correct and complete copies
of (i) the Certificate of Formation of the Company, together with all amendments
and any other modifications thereto (the "Company Certificate of Formation") and
(ii) the "limited liability company agreement" of and with respect to the
Company as such term is defined in Section 18-101(7) of the Delaware LLC Act
(the "Company LLC Agreement", and together with the Certificate of Formation, as
each may be amended, modified or supplemented in accordance with the terms
thereof, the "Company Fundamental Documents"). None of the Company, the Sellers,
nor any of their respective Affiliates, officers, directors or managers has
taken or caused to be taken (or resolved to take) any action to amend, modify,
terminate or rescind, in whole or in part, any of the Company Fundamental
Documents. The Company is not in violation or breach of any of the terms,
conditions or provisions of the Company Fundamental Documents.
3.4 Equity Investments.
Except as set forth in Section 3.5(d), the Company does not own or
hold, directly or indirectly, any Equity Interest in any Person.
3.5 Capitalization.
(a) For all purposes of this Agreement, including this Section 3.5, all
references to capital stock of the Company shall mean and refer to limited
liability company interests in the Company within the meaning of the Delaware
LLC Act, and all references to the authorization or authorized status of such
capital stock shall mean and refer to the power of the Company to issue or give
effect to such capital stock in accordance with the Company LLC Agreement. The
authorized capitalization of the Company consists solely of the Company
Interests. Except for the Company Interests, there are no other Equity Interests
in the Company authorized, issued, sold, transferred or outstanding.
(b) All of the Company Interests have been duly authorized and validly
issued, free of any preemptive or similar rights, and are fully paid and
nonassessable.
(c) There are no outstanding subscriptions, options, convertible
securities, warrants, calls, preemptive rights, rights of first refusal, rights
or agreements or commitments of any kind (issued or granted by, or binding upon,
any of the Sellers or the Company) to purchase or otherwise acquire any security
of or Equity Interest in the Company. Except for Encumbrances set forth on
Schedule 3.1, all of which shall be terminated, released, discharged and
satisfied in full prior to the Closing, each Seller has full legal right to
sell, assign and transfer the Company Interests owned by it to the Purchaser and
will, upon Closing, transfer to the Purchaser good and marketable title to the
Company Interests free and clear of all Liens.
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(d) Except for the Equity Interests in the MLP and the OLP set forth in
Schedule 3.5, the Company has no subsidiaries, nor does it own any stock,
partnership interest, joint venture interest or any other security or ownership
interest or other Equity Interest in any other Person. The Company is the sole
general partner of the MLP, with a general partner interest in the MLP of
1.0101%, and the sole record and beneficial owner of the interests in the MLP
set forth on Schedule 3.5 (the "Company's LP Interest"), having an aggregate
limited partner interest in the MLP of 49.7964%. The Company is the sole general
partner of the OLP, with a general partner interest in the OLP of 1.0101%.
(e) All Equity Interests of the Company (including any predecessors
thereof) have been offered, sold and issued in compliance with all applicable
federal and state securities and "blue sky" laws and rules and regulations
promulgated thereunder. The Company has not violated any applicable federal or
state securities or "blue sky" laws or rules or regulations promulgated
thereunder.
3.6 Financial Statements.
The Sellers have previously delivered to Purchaser (i) the
audited balance sheets of the Company as of December 31, 2000 and the related
consolidated statements of operations, retained earnings and cash flows for the
fiscal year then ended; and (ii) the unaudited balance sheet of the Company as
of October 31, 2001 and the related statements of operations, retained earnings
and cash flows for the period then ended (collectively, the "Financial
Statements," and the balance sheet as of October 31, 2001 being the "Latest
Balance Sheet" and the date thereof being the "Latest Balance Sheet Date").
Except as set forth on Schedule 3.6, the Financial Statements (i) are in
accordance with the books and records of the Company, (ii) fairly present in all
material respects the financial condition of the Company as of the respective
dates indicated and the results of operations, equity and cash flows of the
Company for the respective periods indicated and (iii) have been prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby.
3.7 Tax Matters.
(a) Except as set forth on Schedule 3.7 or as is not reasonably likely
to have a Material Adverse Effect on the Company, (i) the Company (including its
predecessors) has timely filed (and, with respect to Tax Returns not filed as of
the date hereof, will file) in accordance with all applicable Laws (taking into
account valid extensions) all Tax Returns required to be filed by it, and all
such Tax Returns were (and with respect to Tax Returns not filed as of the date
hereof but filed prior to the Closing Date, will be) true, correct and complete
in all material respects, (ii) the Company (including its predecessors) has
timely paid (and, until the Closing Date, will timely pay) all Taxes due and
required to be paid by it, including any Taxes levied upon any of its
properties, assets, income or franchises, except Taxes being challenged in good
faith, (iii) all amounts required to be collected or withheld by the Company
(including its predecessors) have been (and until the Closing Date, will be)
collected or withheld and any such amounts which are required to be remitted to
any taxing authority have been (and will be) duly remitted, (iv) no taxing
authority in any jurisdiction in which the Company (including its predecessors)
has not filed Tax Returns has made a claim, assertion or threat that such
non-filing entity is or may be subject to taxation in such jurisdiction, (v) no
Proceeding is in progress, pending, proposed or, to the Best Knowledge of the
Sellers, threatened, in each case with regard to any Taxes or Tax Returns of the
Company (including its predecessors), (vi) neither the Company nor any
predecessor thereof is or has ever been a party to or bound by a Tax sharing or
Tax allocation or similar agreement or arrangement, and (vii) the accruals and
reserves for Taxes on the Latest Balance Sheet are complete and adequate to
cover any liability of the Company for Taxes for the period through the date
thereof. The Company has elected to be classified as a partnership for purposes
of the Code and any applicable state income Tax Laws and such election has not
been withdrawn or revoked. The Company is an entity taxable as a partnership,
and has always been such, and there is no fact in existence that would cause the
Company to be taxed other than as a partnership.
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(b) None of the Sellers is a "foreign person" as defined in Section
1445(f)(3) of the Code and the rules and regulations promulgated thereunder.
(c) Except as set forth on Schedule 3.7 or as is not reasonably likely
to have a Material Adverse Effect on the Company, the Company has established
(and until the Closing Date will maintain) on its books and records reserves
adequate to pay all Taxes not yet due and payable in accordance with GAAP which
are reflected in the Company's Financial Statements to the extent required.
(d) There are no material Tax Liens upon the assets of the Company
except for Liens for Taxes not yet due (or for Taxes due, which are being
challenged in good faith).
(e) The Sellers have prior to the execution of this Agreement made
available to the Purchaser true and complete copies of (i) all material Tax
Returns, and any material amendments thereto, filed by the Company, (ii) all
material audit reports received from any Tax authority relating to any Tax
Return filed by the Company, and (iii) any material closing agreement entered
into by the Company with any Tax authority.
(f) Except as set forth on Schedule 3.7 or as is not reasonably likely
to have a Material Adverse Effect on the Company, no event, transaction, act or
omission has occurred which would result in the Company becoming liable to pay
or to bear any Tax as transferee, successor or otherwise which is primarily or
directly chargeable or attributable to any other Person. Except as set forth on
Schedule 3.7 or as is not reasonably likely to have a Material Adverse Effect on
the Company, the Company has no actual or contingent liability (whether by
reason of indemnity, warranty or otherwise) to any other Person in respect of
any actual, contingent or deferred liability of such Person for Taxes.
(g) There are no outstanding agreements or waivers by or with respect
to the Company extending the period for assessment or collection of any Taxes.
(h) There are no changes in the tax accounting methods subject to
Section 481(a) of the Code that have an on-going effect on the Company.
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3.8 Employees.
The Company does not have any employees and has not
established any Plan. In addition, the Company does not have, and will not have
prior to the Closing Date, any liability or obligation (x) arising under or
related to any Plan, (y) otherwise in respect of any person for, or in respect
of, in any manner, salary, wages, commissions, bonuses, employee benefits,
pension benefits, severance, termination pay or other similar obligations or
liabilities or (z) arising under or related to any laws relating to employees or
any of the other items set forth in clauses (x) and (y).
3.9 Property.
The Company has no property or assets other than the Equity Interests
set forth in Section 3.5(d).
Article IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers, as of
the date hereof, as set forth below.
4.1 Organization; Good Standing; Qualification and Power.
The Purchaser is a limited liability company, duly organized, validly
existing and in good standing under the Laws of the State of Delaware, has all
requisite limited liability company power and authority to own, lease and
operate its properties and to carry on its business as now being conducted, and
is duly qualified and in good standing to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its properties
makes such qualification necessary and the failure to be so qualified or in good
standing would have a Material Adverse Effect on the Purchaser. The Purchaser
has made available to the Company true, correct and complete copies of its
Fundamental Documents.
4.2 Authority; Noncontravention; Consents.
(a) The Purchaser has all the requisite limited liability company power
and authority to enter into this Agreement and any and all instruments necessary
or appropriate in order to effectuate fully the terms and conditions of this
Agreement and all related transactions contemplated hereby and to perform its
respective obligations hereunder. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary limited liability company
action on the part of the Purchaser, and this Agreement has been duly and
validly executed and delivered by the Purchaser and this Agreement is the valid
and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability thereof may be limited
by any applicable bankruptcy, reorganization, insolvency or other Laws affecting
creditor's rights generally or by general principles of equity.
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(b) Neither the execution, delivery and performance of this Agreement
by the Purchaser nor the consummation of the transactions contemplated hereby
nor compliance by the Purchaser with any of the provisions hereof will (i)
conflict with, or result in any violations of, or cause a breach or default (or
an event that, upon notice or lapse of time, or both would result in a breach or
default) under, or give rise to a right of termination, amendment, cancellation
or acceleration of any obligations contained in or the loss of any material
benefit under (x) the Fundamental Documents of the Purchaser or (y) any term,
condition or provision of any Contract to which the Purchaser is a party, or by
which the Purchaser or any of its properties may be bound or (ii) conflict with
or result in any violations of any Law applicable to the Purchaser or any of its
properties, except, in the case of conflicts or violations pursuant to clause
(i)(y) or (ii), that would not have, individually or in the aggregate, a
Material Adverse Effect on the Purchaser.
(c) Except as set forth on Schedule 4.2 and as required by the HSR Act,
if applicable, no consent, approval, Order or authorization of, registration,
declaration or filing with, or notification to any Governmental Entity or any
other third party is required in connection with the execution, delivery and
performance by the Purchaser of this Agreement or the consummation of the
transactions contemplated hereby.
4.3 Investment.
The Purchaser is acquiring the Company Interests for its own account
for investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same.
4.4 Accredited Investor.
The Purchaser is an "accredited investor" within the meaning of Rule
501 under the Securities Act. The Purchaser has had the opportunity to ask
questions of, and receive answers from the Company concerning the assets,
liabilities, business and affairs of the Company.
4.5 Accredited Investor.
The Purchaser's principal executive office is located in New York, New
York and the offer of the Company Interests is made in that state.
Article V
CONDUCT AND TRANSACTIONS PRIOR TO THE CLOSING;
ADDITIONAL AGREEMENTS
5.1 Confidentiality.
Each of the Sellers agrees that all confidential or proprietary
information or workproducts relating to the Company and its business that are
known to such Seller or any of its Affiliates, officers, directors, employees,
agents or representatives as of the Closing Date are the sole property of the
Company. Each of the Sellers agrees that it will not use or disclose such
information or workproduct except for the benefit of the Company, and each of
the Sellers will use its reasonable best efforts to protect such information and
workproduct from misuse, loss, theft or accidental disclosure.
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5.2 Consents.
Each party shall use its reasonable best efforts, and the other parties
shall cooperate with such efforts, to obtain any consents and approvals of, or
effect the notification of or filing with, each Person or authority, whether
private or governmental, whose consent or approval is required in order to
permit the consummation of the transactions contemplated hereby.
5.3 Efforts to Consummate.
Subject to the terms and conditions herein provided, the parties shall
do or cause to be done all such reasonable acts and things as may be necessary,
proper or advisable, consistent with all applicable Laws, to consummate and make
effective the transactions contemplated hereby as promptly as practicable after
the date hereof.
5.4 Public Announcements.
Each party agrees that, except as provided in Section 6.14 of the
Contribution Agreement, it will not issue any reports, statements or releases,
in each case, pertaining to this Agreement or the transactions contemplated
hereby (including the Contribution Agreement), without the prior written consent
of the Company or the Purchaser, as the case may be, which consent shall not
unreasonably be withheld or delayed.
5.5 Distribution of the Company's LP Interest.
The parties agree that the Company shall distribute the Company's LP
Interest to Resource America or affiliates of Resource America at or prior to
the Closing.
5.6 Release of Liens.
From and after the date hereof, the Sellers shall, and shall cause the
Company to, cause each of the Encumbrances set forth on Schedule 3.1 and each
Encumbrance to which the Company or any of its assets is a party or is bound to
be terminated, forever discharged and released, without cost or penalty to the
Company. The Encumbrances, guaranties and other obligations of the Company
contemplated by this Section 5.6 are collectively referred to herein as the
"Released Obligations".
Article VI
CONDITIONS
6.1 Conditions to Each Party's Obligations.
The respective obligations of each party to effect the transactions
contemplated hereby are subject to the satisfaction on or prior to the Closing
Date of the conditions set forth below, unless waived in writing, in whole or in
part (to the extent such conditions can be waived) by the Purchaser or the
Sellers, as applicable.
(a) Approvals. All authorizations, consents, Orders or approvals of, or
declarations or filings with, or expiration of waiting periods imposed by, any
Governmental Entity necessary for the consummation of the transactions
contemplated hereby shall have been obtained or made.
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(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other Order issued by any Governmental
Entity nor other legal restraint or prohibition preventing or materially
delaying the consummation of the transactions contemplated hereby shall be in
effect.
(c) Statutes. No action shall have been taken or threatened, and no Law
shall have been enacted, promulgated or issued or deemed applicable to the
transactions contemplated hereby by any Governmental Entity that would (i) make
the consummation of the transactions contemplated hereby illegal or materially
delay the consummation of the transactions contemplated hereby, (ii) compel the
Company, the Sellers, the Purchaser, or any of their Affiliates to dispose or
hold separate all or a material portion of the business or assets of the
Company, the Sellers, the Purchaser, or any Affiliate thereof as a result of the
consummation of the transactions contemplated hereby or (iii) render any party
unable to consummate the transactions contemplated hereby.
(d) Xxxx-Xxxxx-Xxxxxx. If applicable, the waiting period for
consummation of the transactions contemplated hereby prescribed by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), shall have expired or early termination thereof shall have been granted.
The Purchaser and the Sellers shall each pay one-half of any required filing
fees.
6.2 Conditions to Obligations of the Purchaser.
The obligations of the Purchaser to consummate the transactions
contemplated hereby are subject to the satisfaction of the conditions set forth
below, unless waived (to the extent such conditions can be waived) by the
Purchaser.
(a) Accuracy of Representations and Warranties. The representations and
warranties of the Sellers made in this Agreement shall be true and correct as of
the Closing Date, except for such failures to be true and correct that do not
have a Material Adverse Effect on the Company (in each case, giving no effect to
any Material Adverse Effect or other materiality qualifiers contained in such
representations and warranties) and the Purchaser shall have received a
certificate signed by an authorized officer of each of the Sellers to that
effect.
(b) Performance of Obligations. The Sellers shall have performed in all
material respects all obligations and covenants required to be performed by them
under this Agreement as of the Closing Date, and the Purchaser shall have
received a certificate signed by an authorized officer of each of the Sellers to
that effect.
(c) Authorization. All action necessary to authorize the execution,
delivery and performance of this Agreement by each of the Sellers and the
consummation of the transactions contemplated hereby, including, without
limitation, the requisite shareholder approvals shall have been duly and validly
taken by each of the Sellers and the Sellers shall have full power and right to
consummate the transactions contemplated hereby on the terms provided herein.
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(d) Opinion of the Sellers' Counsel. The Purchaser shall have received
an opinion of Ledgewood Law Firm, P.C., counsel for the Company and the Sellers,
dated the Closing Date, in substantially the form attached as Exhibit A hereto.
(e) Consents and Approvals. The Sellers shall have received duly
executed copies of all consents and approvals in form and substance reasonably
satisfactory to the Purchaser that are (i) required for consummation of the
transactions contemplated hereby or (ii) that are required in order to prevent a
breach of or a default under or a termination of any Contract to which the
Company or any Seller is a party or to which any portion of property of the
Company and any of the Sellers is subject.
(f) Absence of Material Adverse Change. Since the Latest Balance Sheet
Date, there shall have been no change, event or occurrence with respect to the
Company that could reasonably be expected to have a Material Adverse Effect on
the Company.
(g) Closing Documents. At the Closing, the Sellers shall deliver, or
cause to be delivered, the following to the Purchaser and the Purchaser shall
have received duly executed copies of such documents, and such documents shall
be in full force and effect:
(i) the Company Interests, and, if certificated, certificates
representing the Company Interests, duly endorsed for transfer
to the Purchaser;
(ii) the Distribution Support Agreement, dated February 2, 2000,
between the Company, the MLP, Atlas America, Inc., Resource
Energy and Viking shall have been terminated and shall be null
and void and each of the Company, the MLP, Viking , Resource
Energy and Atlas America, Inc. shall have delivered to the
Purchaser an executed Termination Agreement in the form
attached hereto as Exhibit B
(iii) certified copies of the resolutions of each Sellers' board of
directors, approving this Agreement and all other agreements
and documents contemplated hereby and the consummation of the
transactions contemplated hereby;
(iv) a secretary's certificate for each of the Company and the
Sellers certifying the Company's or such Seller's Fundamental
Documents and the incumbency of each officer executing this
Agreement or any agreement or instrument contemplated hereby;
(v) a certificate of the Secretary of State (or other applicable
office) in which the Company is organized and qualified to do
business dated as of the Closing Date (or as close thereto as
reasonably practicable), certifying as to the good standing
and non-delinquent status of such entity;
(vi) an officer's certificate as required under Section 6.2(a) and
Section 6.2(b);
(vii) resignations of officers, managers and directors of the
Company, as the Purchaser may require except for one managing
board member of the Company (and one member of each committee
thereof (which committee does not require the presence of an
independent director for the purposes of such committee under
applicable law, regulation or otherwise)) to be designated by
the Sellers in writing prior to the Closing and who shall be
reasonably acceptable to Purchaser (who the parties agree
shall be Xxxxxxxx Xxxxx); and
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(viii) company minute books and members register/transfer ledgers of
the Company.
(h) Contribution Agreement. As of the Closing Date, the parties to the
Contribution Agreement shall have satisfied or duly waived all the respective
conditions precedent to their obligations as of such date under the Contribution
Agreement.
(i) Released Obligations. The Sellers and the Company shall have
terminated and forever discharged and unconditionally released in full each of
the Released Obligations, without cost or penalty to the Company, and the
Sellers shall have provided Purchaser with documentation reasonably satisfactory
to the Purchaser to evidence the termination, discharge and release of each such
Released Obligations.
6.3 Conditions to Obligations of the Sellers.
The obligations of the Sellers to consummate the transactions
contemplated hereby are subject to the satisfaction of the conditions set forth
below, unless waived (to the extent such conditions can be waived) by the
Sellers.
(a) Accuracy of Representations and Warranties. The representations and
warranties of the Purchaser made in this Agreement shall be true and correct as
of the Closing Date, except for such failures to be true and correct that do not
have a Material Adverse Effect on the Purchaser (giving no effect to any
Material Adverse Effect or other materiality qualifiers contained in such
representations and warranties) and the Sellers shall have received a
certificate signed by an authorized officer of the Purchaser to that effect.
(b) Performance of Obligations. The Purchaser shall have performed in
all material respects its obligations and covenants required to be performed by
it under this Agreement prior to or as of the Closing Date, and the Sellers
shall have received a certificate signed by an authorized officer of the
Purchaser to that effect, and the Seller shall have received a certificate
signed by an authorized officer of the Purchaser to that effect.
(c) Authorization. All action necessary to authorize the execution,
delivery and performance of this Agreement by the Purchaser and the consummation
of the transactions contemplated hereby, including, without limitation, the
requisite member approval, shall have been duly and validly taken by the
Purchaser, and the Purchaser shall have full power and right to consummate the
transactions contemplated hereby on the terms provided herein.
(d) Consent and Approvals. The Purchaser shall have received duly
executed copies of all consents and approvals in form and substance reasonably
satisfactory to the Sellers that are required for consummation of the
transactions contemplated hereby.
(e) Purchase Price. The Purchase Price, payable in accordance with
Section 2.4, shall have been paid to the Sellers.
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(f) Closing Documents. At the Closing, the Sellers shall have received
duly executed copies of the closing documents set forth below, and such
documents shall be in full force and effect:
(i) certified copies of the resolutions of the board of managers
of the Purchaser authorizing and approving this Agreement and
all other agreements and instruments contemplated hereby to be
entered into by the Purchaser and the consummation of the
transactions contemplated hereby;
(ii) a secretary's certificate certifying the Purchaser's
Fundamental Documents and the incumbency of each officer of
the Purchaser executing this Agreement or any agreement or
instrument contemplated hereby;
(iii) a certificate of the Secretary of State of Delaware, dated as
of the Closing Date (or as close thereto as reasonably
practicable), certifying as to the good standing and
non-delinquent status of such entity; and
(iv) an officer's certificate as required under Section 6.3(a) and
Section 6.3(b).
6.4 Requisite Efforts.
It shall be a condition to each party's right to refuse to close, based
on the assertion of the failure of a condition for which such party's
obligations hereunder are subject, that the party asserting the failure of such
condition shall have acted with the requisite efforts of that party required
under this Agreement to be undertaken by such party in accordance with the terms
of this Agreement.
Article VII
ADDITIONAL AGREEMENTS
7.1 Expenses.
Except as otherwise expressly provided herein, each of the Sellers, on
one hand, and the Purchaser, on the other hand, shall bear their own expenses in
connection with the preparation for and consummation of the transactions
contemplated hereby (the "Transaction Expenses")
7.2 Certain Tax Matters.
(a) All transfer, documentary, sales, use, registration and other such
Taxes (including, but not limited to, all applicable real estate transfer or
gains Taxes and stock transfer Taxes) and any penalties, interest and additions
to Tax and fees resulting from or incurred in connection with this Agreement and
the consummation of the transactions contemplated hereby shall be paid by the
Sellers. Each party to this Agreement shall cooperate in the timely making of
all filings, returns, reports and forms as may be required in connection
therewith.
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(b) The Company and the Sellers agree that the Company shall (and shall
cause the MLP and the OLP to) cause there to be an interim closing of the books
under Section 706 of the Code for both the MLP and the OLP effective as of the
Closing Date for purposes of dividing and allocating the MLP's and the OLP's
income with respect to the Company for the taxable year in which the Closing
occurs. Such income shall be divided and allocated pursuant to a reasonable
accounting for such income that is acceptable to both the Sellers and the
Purchaser.
(c) The Sellers shall prepare the Tax Returns required to be filed by
the Company for all periods ending on or prior to the Closing Date. Each Tax
Return prepared by the Sellers for the Company shall be prepared using
accounting methods and other practices that are consistent with those used by
the Company in its prior Tax Returns.
(d) The Seller shall cause an election under Section 754 of the Code to
be filed with respect to the MLP to be effective for a taxable year ending on or
prior to the Closing Date.
7.3 Designation of Managing Board Member.
For so long as Resource America, Inc. or any of its Affiliates
beneficially owns at least 50% of the Company's LP Interest (or common units
issued upon conversion thereof) owned by the Company as of the date hereof, the
Purchaser and the Company covenant and agree that Resource America shall have
the right to designate or nominate one member of the Company's board of
managers.
7.4 Purchase Price Adjustment.
The Purchase Price shall be reduced by $3.70 times the number of common
units of the MLP outstanding immediately prior to Closing in excess of 1,621,159
(excluding common units issued upon the conversion of the Company's LP
Interest).
Article VIII
TERMINATION; EFFECT OF TERMINATION
8.1 Termination.
This Agreement may be terminated at any time prior to the Closing by:
(a) the mutual written consent of the Purchaser and the Sellers;
(b) the Purchaser, if there has been a breach by any Seller of any
representation, warranty, covenant or agreement set forth in this Agreement on
the part of such Seller which breach is material and which such party fails to
cure within 10 days after written notice thereof is given by the Purchaser
(except no cure period shall be provided for a breach which by its nature cannot
be cured);
(c) the Sellers, if there has been a breach by the Purchaser of any
representation, warranty, covenant or agreement set forth in this Agreement on
the part of the Purchaser which breach is material and which the Purchaser fails
to cure within 10 days after written notice thereof is given by the Sellers
(except no cure period shall be provided for a breach which by its nature cannot
be cured);
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(d) the Purchaser or the Sellers in writing, if the conditions set
forth in Section 6.1 shall not have been satisfied or waived (to the extent they
may be waived) by May 15, 2002 or such later date on which the termination of
the Contribution Agreement may become effective pursuant to Section 9.1(b)
thereof;
(e) the Purchaser in writing, if the conditions set forth in Section
6.2 shall not have been satisfied or waived (to the extent they may be waived)
by May 15, 2002 or such later date on which the termination of the Contribution
Agreement may become effective pursuant to Section 9.1(b) thereof and the
Purchaser is not in default under this Agreement; or
(f) the Sellers in writing, if the conditions set forth in Section 6.3
shall not have been satisfied or waived (to the extent they may be waived) by
May 15, 2002 or such later date on which the termination of the Contribution
Agreement may become effective pursuant to Section 9.1(b) thereof and if none of
the Sellers is in default under this Agreement;
provided, however, that neither the Purchaser nor the Sellers shall be entitled
to terminate this Agreement pursuant to Section 8.1(d), (e) or (f) if such
party's breach (or, with respect to the Sellers, the Sellers' or the Company's
breach) of this Agreement has contributed to the failure to satisfy any such
condition. Any termination pursuant to Section 8.1(a) shall be effected by a
written instrument signed by the Purchaser and the Sellers, and any termination
pursuant to Section 8.1 (other than a termination pursuant to Section 8.1(a))
shall be effected by written notice from the party or parties so terminating to
the other parties hereto, which notice shall specify the Section hereof pursuant
to which this Agreement is being terminated.
8.2 Effect of Termination.
In the event of the termination of this Agreement as provided in
Section 8.1, this Agreement shall be of no further force or effect, except for
Section 5.1, Section 5.4, Section 7.1, Section 8.2 and Section 8.3, each of
which shall survive the termination of this Agreement; provided, however, that
the Liability of any party for any breach by such party of the representations,
warranties, covenants or agreements of such party set forth in this Agreement
occurring prior to the termination of this Agreement shall survive the
termination of this Agreement and, in addition, in the event of any action for
breach of contract in the event of a termination of this Agreement, the
prevailing party shall be reimbursed by the other party to the action for
reasonable attorneys' fees and expenses relating to such action.
8.3 Breakup Fees.
(a) In the event this Agreement is terminated and the Contribution
Agreement has terminated pursuant to any event requiring the payment of an Atlas
Termination Fee (as defined therein), then the Sellers shall promptly pay to the
Purchaser, within one Business Day of termination, a termination fee of
$6,000,000. The payment required hereby shall be made by wire transfer of
immediate available funds to an account designated in writing by the Purchaser.
(b) In the event this Agreement is terminated and the Contribution
Agreement has terminated pursuant to any event requiring the payment of a Triton
Termination Fee (as defined therein), then the Purchaser shall promptly pay to
the Sellers, within one Business Day of termination, a termination fee of
$12,000,000. The payment required hereby shall be made by wire transfer of
immediate available funds to an account designated in writing by the Sellers.
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8.4 Survival of Representations and Warranties.
The representations, warranties, covenants and agreements set forth in
this Agreement shall terminate as of the time of Closing or upon the termination
of this Agreement pursuant to Section 8.1, as the case may be, except for such
covenants and agreements which, by their terms are to be performed in whole or
in part after the Closing.
Article IX
MISCELLANEOUS PROVISIONS
9.1 Amendment.
No amendment, supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by each party to be bound thereby.
9.2 Extension; Waiver.
At any time prior to the Closing, the parties may (a) extend the time
for the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement and (c) waive compliance with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party, and any such waiver shall not operate or be
construed as a waiver of any subsequent breach by the other party. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided.
9.3 Entire Agreement.
This Agreement and the other agreements and documents specifically
referred to herein or delivered pursuant hereto (including, but not limited to,
the Company Fundamental Documents, the Contribution Agreement and the schedules
and exhibits attached hereto and thereto and the other Constituent Documents (as
defined in the Contribution Agreement) contemplated thereby) (collectively, the
"Transaction Documents") (a) shall constitute the entire agreement between the
parties with respect to the subject matter hereof, and shall supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof (except for the Confidentiality Agreement
(as defined in the Contribution Agreement), which shall remain in effect); and
(b) are not intended to confer upon any other person or entity any rights or
remedies hereunder. Each party to this Agreement agrees that (i) no other party
to this Agreement (including its agents and representatives) has made any
representation, warranty, covenant or agreement to or with such party relating
to the Agreement or the transactions contemplated hereby, other than those
expressly set forth in the Transaction Documents and (ii) such party has not
relied upon any representation, warranty, covenant, or agreement relating to the
transactions contemplated by the Transaction Documents, other than those
referred to in clause (i) above.
-16-
9.4 Severability.
If any provision of the Agreement is rendered or declared illegal or
unenforceable by reason of any existing or subsequently enacted legislation or
by decree of a court of last resort, the Purchaser and the Sellers shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable, but all of the remaining provisions of this Agreement
shall remain in full force and effect.
9.5 Binding Effect and Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns; but
neither this Agreement nor any of the rights, benefits or obligations hereunder
shall be assigned, by operation of law or otherwise, by any party hereto without
the prior written consent of the other parties; provided, however, that the
Purchaser may, without the prior written consent of the other parties hereto,
assign its rights and obligations to its Affiliates (provided, that no such
assignment shall relieve the Purchaser of its obligations hereunder). Nothing in
this Agreement, express or implied, is intended to confer upon any person or
entity other than the parties hereto and their respective permitted successors
and assigns, any rights, benefits or obligations hereunder.
9.6 Notices.
Any notice, request, instruction, or correspondence or other document
to be given hereunder by either party to the other (herein collectively called
"Notice") shall be in writing and delivered in person or by courier service
requiring acknowledgement of receipt of delivery or mailed by certified mail,
postage prepaid and return receipt requested, or by telecopier, as follows:
(i) if to the Sellers (or, prior to the Closing Date, to the Company),
to:
c/o Resource America, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Ledgewood Law Firm, P.C.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX
Attention: Xxxxxxx X. Abt, Esq.
Telecopy: (000) 000-0000
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(ii) if to the Purchaser, to:
Kisco Management Corporation
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
DuPont Capital Management
Xxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telecopy: (000) 000-0000
Harbourton Enterprises
00 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
and to:
Vulcan Capital Management
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Xxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
X'Xxxxxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000; and
(iii) if, after the Closing Date, to the Company, as per the
instructions above in respect of the Purchaser.
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. Any party may change any address
to which Notice is to be given to it by giving Notice as provided above of such
change of address.
-18-
9.7 Counterparts and Facsimile Execution.
This Agreement may be executed in one or more original or facsimile
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8 Governing Law.
(a) All questions concerning the construction, interpretation and validity of
this Agreement shall be governed by and construed and enforced in accordance
with the internal law of the State of Delaware, without giving effect to any
choice or conflict of law provision or rule (whether in the State of Delaware or
any other jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of Delaware. In furtherance of the foregoing,
the internal law of the State of Delaware will control the interpretation and
construction of this Agreement, even if under such jurisdiction's choice of law
or conflict of law analysis, the internal law of some other jurisdiction would
ordinarily or necessarily apply.
9.9 Construction.
The language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
9.10 Remedies.
Subject to the provisions of Section 8.2, the parties shall each have
and retain all other rights and remedies existing in their favor at law or
equity, including, without limitation, any actions for specific performance
and/or injunctive or other equitable relief (including, without limitation, the
remedy of rescission) to enforce or prevent any violations of the provisions of
this Agreement.
9.11 No Fiduciary Relationship.
No provision in this Agreement and no course of dealing among the
parties hereto shall be deemed to create any fiduciary duty by the Purchaser or
any of their respective agents or Affiliates to the Company, the Sellers or
their respective managers, directors, officers, employees, agents, equity
holders or Affiliates, as the case may be.
9.12 Interpretation.
(a) The headings of the sections of this Agreement are inserted as a
matter of convenience and for reference only and in no way define, limit or
describe the scope of this Agreement or the meaning of any provision of this
Agreement.
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(b) The words "hereof", "herein", and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
(c) Unless otherwise specifically stated to the contrary, references to
sections, schedules and exhibits contained herein refer to the respective
sections, schedules and exhibits in this Agreement.
(d) Whenever the words "included", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(e) Terms defined in the singular shall have a comparable meaning when
used in the plural, and vice versa.
(f) Whenever the context may require, any pronouns used herein shall
indicate the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice-versa.
(g) All accounting terms used herein and not expressly defined herein
shall have the meanings given to them under GAAP.
(h) THE PARTIES AGREE THAT THEY HAVE BEEN REPRESENTED BY COUNSEL DURING
THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT AND, THEREFORE WAIVE THE
APPLICATION OF ANY LAW, REGULATION, HOLDING OR RULE OF CONSTRUCTION PROVIDING
THAT AMBIGUITIES IN AN AGREEMENT OR OTHER DOCUMENT WILL BE CONSTRUED AGAINST THE
PARTY DRAFTING SUCH AGREEMENT OR DOCUMENT.
9.13 Form of Payment.
Unless otherwise specifically stated to the contrary, all payments
hereunder shall be made in United States dollars and, unless the parties making
and receiving such payments shall agree otherwise or the provisions hereof
provide otherwise, shall be made by wire or interbank transfer of immediately
available funds by 12:00 Noon New York, New York time on the date such payment
is due to such account as the party receiving payment may designate in writing.
**********
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Purchase Agreement as of the date first written above.
NEW VULCAN COAL HOLDINGS, L.L.C.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Its: Vice President
AIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Secretary
VIKING RESOURCES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President and Secretary
RESOURCE ENERGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: President and Secretary
ATLAS ENERGY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President,
Chief Operating Officer and
Assistant Secretary
ATLAS RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Senior Vice President and Secretary
REI-NY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President and Secretary
ANNEX I
DEFINITIONS
The following terms used in the Agreement shall have the respective
meanings set forth below.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such Person.
"Agreement" has the meaning set forth in the caption.
"AIC" has the meaning set forth in the caption.
"Atlas Energy" has the meaning set forth in the caption.
"Atlas Resources" has the meaning set forth in the caption.
"Best Knowledge" of any Person shall mean and include (i) actual
knowledge and (ii) that knowledge which a prudent businessperson could have
obtained in the management of his business affairs after making due inquiry and
exercising due diligence which a prudent businessperson should have made or
exercised, as applicable, with respect thereto.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in New York, New York are not required to be open.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has the meaning set forth in Section 2.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the Preamble.
"Company Certificate of Formation" has the meaning set forth in Section
3.3.
"Company Interests" has the meaning set forth in the Preamble.
"Company Fundamental Documents" has the meaning set forth in Section
3.3.
"Company LLC Agreement" has the meaning set forth in Section 3.3.
"Company's LP Interest" has the meaning set forth in Section 3.5(d).
"Contract" means any written or oral loan or credit agreement, note,
bond, mortgage, indenture, lease, sublease, purchase order or other agreement,
instrument, permit, concession, franchise or license.
A-1
"Contribution Agreement" means the Contribution Agreement, dated as of
the date hereof, by and among Vulcan Intermediary, L.L.C., New Vulcan Coal
Holdings, L.L.C., Atlas Pipeline Partners, L.P., Atlas Pipeline Partners GP, LLC
and Resource America, Inc., as amended, supplemented or modified in accordance
with the terms thereof.
"Control" means, with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Delaware LLC Act" means the Delaware Limited Liability Company Act, 6
Del. C. Sect. 18-101 et seq., as amended.
"Encumbrances" means and includes security interests, mortgages, Liens,
pledges, charges, easements, reservations, restrictions, clouds, equities,
rights of way, options, rights of first refusal and all other encumbrances,
whether or not relating to the extension of credit or the borrowing of money.
"Equity Interests" with respect to any Person, means any and all
shares, interests, units, rights to purchase, warrants, options, participations
or other equivalents of or interests (however designated) in equity of such
Person, including securities or interests convertible into, exercisable for or
exchangeable into, on such equity interests.
"Financial Statements" has the meaning set forth in Section 3.6.
"Fundamental Documents" means the documents by which any Person (other
than an individual) establishes its legal existence or which govern its internal
affairs. For example, the "Fundamental Documents" of a corporation would be its
certificate of incorporation and by-laws.
"Governmental Entity" means any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, Federal, state or local.
"HSR Act" has the meaning set forth in Section 6.1(d).
"Latest Balance Sheet" has the meaning set forth in Section 3.6.
"Latest Balance Sheet Date" has the meaning set forth in Section 3.6.
"Law" means any law, statute, treaty, rule, directive or regulation or
Order of any Governmental Entity.
"Liability" means any liability or obligation, whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated and whether due or to become due, regardless of when
asserted.
"Lien" means any security interest, lien, mortgage, pledge, charge,
encumbrance or right of others.
A-2
"Material Adverse Effect" on any Person means any change, event or
occurrence materially adverse to (x) the business, operations, assets (including
levels of working capital and components thereof), condition (financial or
otherwise), operating results, liabilities or employee relations of such Person
or (y) the ability of such Person to consummate the transactions contemplated
hereby without amendment, modification or delay.
"MLP" has the meaning set forth in the Contribution Agreement.
"Notice" has the meaning set forth in Section 9.6.
"OLP" has the meaning set forth in the Contribution Agreement.
"Orders" means judgments, writs, decrees, compliance agreements,
injunctions or orders of any Governmental Entity or arbitrator.
"Permits" means all permits, licenses, authorizations, registrations,
franchises, approvals, certificates, variances and similar rights obtained, or
required to be obtained, from Governmental Entities.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
Governmental Entity (or any department, agency or political subdivision
thereof).
"Plan" has the meaning set forth in the Contribution Agreement.
"Proceedings" means actions, suits, claims, investigations or legal or
administrative or arbitration proceedings.
"Purchase Price" has the meaning set forth in Section 2.1.
"Purchaser" has the meaning set forth in the caption.
"REI-NY" has the meaning set forth in the caption.
"Released Obligations" has the meaning set forth in Section 5.6.
"Resource Energy" has the meaning set forth in the caption.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Sellers" has the meaning set forth in the caption.
"Tax" means any of the Taxes.
"Tax Returns" means Federal, state, local and foreign tax returns,
reports, statements, declarations of estimated tax and forms.
A-3
"Taxes" means, with respect to any entity, (i) all income taxes
(including any tax on or based upon net income, gross income, income as
specially defined, earnings, profits or selected items of income, earnings or
profits) and all gross receipts, sales, use, ad valorem, transfer, franchise,
license, withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property or windfall profits taxes, alternative or add-on minimum
taxes, customs duties and other taxes, fees, assessments or charges of any kind
whatsoever, together with all interest and penalties, additions to tax and other
additional amounts imposed by any taxing authority (domestic or foreign) on such
entity (if any) and (ii) any liability for the payment of any amount of the type
described in the immediately preceding clause (i) as a result of (A) being a
"transferee" (within the meaning of Section 6901 of the Code or any other
applicable law) of another entity, (B) being a member of an affiliated or
combined group or (C) any contractual obligation.
"Termination Agreement" has the meaning set forth in Section
6.2(g)(ii).
"Transaction Documents" has the meaning set forth in Section 9.3.
"Transaction Expenses" has the meaning set forth in Section 7.1.
"Viking" has the meaning set forth in the caption.
*******
A-4
TABLE OF CONTENTS
Page
Article I DEFINITIONS...................................................1
Article II PURCHASE AND SALE OF COMPANY INTERESTS; CLOSING..............1
2.1 THE PURCHASE AND SALE OF COMPANY INTERESTS....................1
2.2 TAKING OF NECESSARY ACTION; FURTHER ASSURANCES................2
2.3 CLOSING.......................................................2
2.4 CLOSING DELIVERIES; PAYMENT OF PURCHASE PRICE.................2
Article III REPRESENTATIONS AND WARRANTIES OF THE SELLERS...............2
3.1 TITLE TO THE COMPANY INTERESTS................................2
3.2 AUTHORITY; NONCONTRAVENTION; CONSENTS.........................3
3.3 ORGANIZATION; GOOD STANDING; QUALIFICATION AND
POWER OF THE COMPANY..........................................4
3.4 EQUITY INVESTMENTS............................................4
3.5 CAPITALIZATION................................................4
3.6 FINANCIAL STATEMENTS..........................................5
3.7 TAX MATTERS...................................................5
3.8 EMPLOYEES.....................................................7
3.9 PROPERTY......................................................7
Article IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..............7
4.1 ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER..........7
4.2 AUTHORITY; NONCONTRAVENTION; CONSENTS.........................7
4.3 INVESTMENT....................................................8
4.4 ACCREDITED INVESTOR...........................................8
4.5 ACCREDITED INVESTOR...........................................8
Article V CONDUCT AND TRANSACTIONS PRIOR TO THE CLOSING;
ADDITIONAL AGREEMENTS.........................................8
5.1 CONFIDENTIALITY...............................................8
5.2 CONSENTS......................................................9
5.3 EFFORTS TO CONSUMMATE.........................................9
5.4 PUBLIC ANNOUNCEMENTS..........................................9
5.5 DISTRIBUTION OF THE COMPANY'S LP INTEREST.....................9
5.6 RELEASE OF LIENS..............................................9
Article VI CONDITIONS...................................................9
6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS........................9
6.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER...................10
6.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS.....................12
6.4 REQUISITE EFFORTS............................................13
Article VII ADDITIONAL AGREEMENTS......................................13
7.1 EXPENSES.....................................................13
7.2 CERTAIN TAX MATTERS..........................................13
7.3 DESIGNATION OF MANAGING BOARD MEMBER.........................14
7.4 PURCHASE PRICE ADJUSTMENT....................................14
Article VIII TERMINATION; EFFECT OF TERMINATION........................14
8.1 TERMINATION..................................................14
8.2 EFFECT OF TERMINATION........................................15
8.3 BREAKUP FEES.................................................15
8.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES...................16
(i)
Article IX MISCELLANEOUS PROVISIONS....................................16
9.1 AMENDMENT....................................................16
9.2 EXTENSION; WAIVER............................................16
9.3 ENTIRE AGREEMENT.............................................16
9.4 SEVERABILITY.................................................17
9.5 BINDING EFFECT AND ASSIGNMENT................................17
9.6 NOTICES......................................................17
9.7 COUNTERPARTS AND FACSIMILE EXECUTION.........................19
9.8 GOVERNING LAW................................................19
9.9 CONSTRUCTION.................................................19
9.10 REMEDIES.....................................................19
9.11 NO FIDUCIARY RELATIONSHIP....................................19
9.12 INTERPRETATION...............................................19
9.13 FORM OF PAYMENT..............................................20
(ii)
ANNEX, SCHEDULES AND EXHIBITS
Annex I Definitions
Schedules to the Agreement
Schedule 3.1 - Company Interests and Encumbrances
Schedule 3.2 - Seller Conflicts
Schedule 3.5 - Capitalization
Schedule 3.6 - Financial Statement Exceptions
Schedule 3.7 - Tax Matters
Schedule 4.2 - Authority; Noncontravention; Consents of Purchaser
Exhibits
Exhibit A Form of Legal Opinion of Counsel to the Sellers
Exhibit B Form of Termination Agreement
PURCHASE AGREEMENT
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AMONG
New Vulcan Coal Holdings, L.L.C.,
AIC, INC.
VIKING RESOURCES CORPORATION
RESOURCE ENERGY, INC.
ATLAS ENERGY GROUP, INC.
ATLAS RESOURCES, INC.
AND
REI-NY, INC.
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January 18, 2002
