ATLAS ENERGY OPERATING COMPANY, LLC ATLAS ENERGY FINANCE CORP. Purchase Agreement
Exhibit 10.1
$150,000,000
ATLAS ENERGY OPERATING COMPANY, LLC
ATLAS ENERGY FINANCE CORP.
ATLAS ENERGY FINANCE CORP.
10 3/4% Senior Notes due 2018
May 6, 2008
X.X. Xxxxxx Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Atlas Energy Operating Company, LLC, a Delaware limited liability company (the “Company”), and
Atlas Energy Finance Corp., a Delaware corporation (“Finance Corp.” and, together with the Company,
the “Issuers”), propose to issue and sell to the several initial purchasers listed in Schedule 1
hereto (the “Initial Purchasers”), for whom you are acting as representative (the
“Representative”), $150,000,000 principal amount of their 10 3/4% Senior Notes due 2018 (the
“Securities”). The Securities will be issued pursuant to an Indenture dated as of January 23, 2008
(the “Indenture”) among the Issuers, Atlas Energy Resources, LLC, the parent of the Company
(“Holdings”) and the other guarantors listed in Schedule 2 hereto (together with Holdings, the
“Guarantors”) and U.S. Bank, National Association, as trustee (the “Trustee”), and will be
guaranteed on an unsecured senior basis by each of the Guarantors (the “Guarantees”). The
Securities and the Issuers’ $250.0 million principal amount 103/4% Senior Notes due 2018 previously
issued under the Indenture will be treated as a single series of securities for all purposes under
the Indenture.
The Securities will be sold to the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom.
The Issuers and the Guarantors have prepared a preliminary offering memorandum dated May 6, 2008
(the “Preliminary Offering Memorandum”) and will prepare an offering memorandum dated the date
hereof (the “Offering Memorandum”) setting forth information concerning the Issuers and the
Securities. Copies of the Preliminary Offering Memorandum
have been, and copies of the Offering Memorandum will be, delivered by the Issuers to the
Initial Purchasers pursuant to the terms of this Agreement. The Issuers hereby confirm that they
have authorized the use of the Preliminary Offering Memorandum, the other Time of Sale Information
(as defined below), the Recorded Road Show (as defined below) and the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Preliminary Offering Memorandum. References herein to the
Preliminary Offering Memorandum, the Time of Sale Information and the Offering Memorandum shall be
deemed to refer to and include any document (or part thereof) incorporated by reference therein.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
following information shall have been prepared (collectively, the “Time of Sale Information”): the
Preliminary Offering Memorandum, as supplemented and amended by the written communications attached
as Annex A hereto.
Holders of the Securities (including the Initial Purchasers and their direct and indirect
transferees) will be entitled to the benefits of a Registration Rights Agreement, to be dated the
Closing Date (as defined below) (the “Registration Rights Agreement”), pursuant to which the
Issuers and the Guarantors will agree to file one or more registration statements with the
Securities and Exchange Commission (the “Commission”) providing for the registration under the
Securities Act of the Securities or the Exchange Securities referred to (and as defined) in the
Registration Rights Agreement.
The Issuers hereby confirm their agreement with the several Initial Purchasers concerning the
purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities.
(a) The Issuers agree to issue and sell the Securities to the several Initial Purchasers as
provided in this Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Issuers the respective principal amount of
Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a price equal
to (x) 000.000000% of the principal amount thereof plus (y) their respective percentage of
$4,747,916.67, the accrued and unpaid interest from January 23, 2008 to the Closing Date. The
Issuers will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchasers intend to offer the Securities for
resale on the terms set forth in the Time of Sale Information. Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that:
(i) it is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) under
the Securities Act;
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(ii) it has not solicited offers for, or offered or sold, and will not solicit offers
for, or offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the Securities
Act (“Regulation D”) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers
for, or offer or sell, the Securities as part of their initial offering except:
(A) within the United States to persons whom it reasonably believes to be QIBs
in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in
connection with each such sale, it has taken or will take reasonable steps to ensure
that the purchaser of the Securities is aware that such sale is being made in
reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex B hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Issuers and, for purposes of the
“no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(g) and
6(h), counsel for the Issuers and counsel for the Initial Purchasers, respectively, may rely upon
the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the
Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex B
hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may offer and sell
Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may
offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are
acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the
Guarantors with respect to the offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as financial advisors or fiduciaries to, or
agents of, the Issuers, the Guarantors or any other person. Additionally, neither the
Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other
person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall
be responsible for making their own independent investigation and appraisal of the transactions
contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any
responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by
the Representative or any Initial Purchaser of the Issuers, the Guarantors and the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on
behalf of the Issuers, the Guarantors or any other person.
2. Payment and Delivery.
(a) Payment for and delivery of the Securities will be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx llp at 10:00 A.M., New York City time, on May 9, 2008, or at such other
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time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Issuers may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the “Closing Date”.
(b) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Issuers to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Initial Purchasers, of one or more global
notes representing the Securities (collectively, the “Global Note”), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Issuers. The Global Note
will be made available for inspection by the Representative not later than 1:00 P.M., New York City
time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Issuers and the Guarantors. The Issuers and
the Guarantors jointly and severally represent and warrant to each Initial Purchaser that:
(a) Preliminary Offering Memorandum, Time of Sale Information and Offering Memorandum.
The Preliminary Offering Memorandum, as of its date, did not, the Time of Sale Information,
at the Time of Sale, did not, and at the Closing Date, will not, and the Offering
Memorandum, in the form first used by the Initial Purchasers to confirm sales of the
Securities and as of the Closing Date, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided
that the Issuers and the Guarantors make no representation or warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Issuers in writing by such Initial Purchaser through
the Representative expressly for use in the Preliminary Offering Memorandum, the Time of
Sale Information or the Offering Memorandum. The documents incorporated by reference in the
Time of Sale Information and the Offering Memorandum, when filed with the Commission,
conformed, in all material respects, to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder, and did not contain any 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.
(b) Additional Written Communications. The Issuers (including their agents and
representatives, other than the Initial Purchasers in their capacity as such) have not
prepared, made, used, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any written communication that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by the Issuers or
their agents and representatives (other than a communication referred to in clauses (i),
(ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary
Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents attached as Annex A
hereto, which constitute part of the Time of Sale Information, and (iv) any electronic road
show or other written communications, in each case used in accordance with Section 4(c) (the
“Recorded Road Show”). Each such Issuer Written Communication, when taken together with the
Time of Sale Information, did not, and at
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the Closing Date will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Issuers
make no representation and warranty with respect to any statements or omissions made in each
such Issuer Written Communication in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Issuers in writing by such Initial
Purchaser through the Representative expressly for use in any Issuer Written Communication.
Any information in an Issuer Written Communication that is not otherwise contained or
incorporated by reference in the Time of Sale Information and the Offering Memorandum does
not conflict with the information contained or incorporated by reference in the Time of Sale
Information or the Offering Memorandum (and that has not been superseded or modified).
(c) Financial Statements. The historical financial statements and the related notes
thereto included or incorporated by reference in each of the Time of Sale Information and
the Offering Memorandum present fairly the financial position of Holdings and its
consolidated subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby; the other financial information
included or incorporated by reference in each of the Time of Sale Information and the
Offering Memorandum has been derived from the accounting records of Holdings and its
subsidiaries and presents fairly the information shown thereby; and the pro forma financial
information and the related notes thereto contained or incorporated by reference in each of
the Time of Sale Information and the Offering Memorandum has been, except for presentation
of a twelve month ended March 31, 2008 unaudited pro forma condensed
consolidated statement of income and as otherwise disclosed in the Time of Sale Information
and the Offering Memorandum, prepared in accordance with the Commission’s rules and guidance
with respect to pro forma financial information, and the assumptions underlying such pro
forma financial information are reasonable and are set forth in each of the Time of Sale
Information and the Offering Memorandum.
(d) No Material Adverse Change. Since the date of the most recent financial statements
of Holdings included or incorporated by reference in each of the Time of Sale Information
and the Offering Memorandum and except as otherwise disclosed therein (i) there has not been
any change in the capital stock or long-term debt of Holdings or any of its subsidiaries, or
any dividend or distribution of any kind declared, set aside for payment, paid or made by
Holdings on any class of capital stock, or any material adverse change, or any development
which has or could reasonably be expected to have a Material Adverse Effect (as defined
below); (ii) neither Holdings nor any of its subsidiaries has entered into any transaction
or agreement that is material to Holdings and its subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to Holdings and its
subsidiaries taken as a whole; and (iii) neither Holdings nor any of its subsidiaries has
sustained 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 disturbance or
dispute or any action, order or decree of any
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court or arbitrator or governmental or regulatory authority, except in each case as
otherwise disclosed in the Time of Sale Information.
(e) Organization and Good Standing. Holdings and each of its subsidiaries have been
duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have all power
and authority necessary to own or lease their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position, results
of operations or prospects of Holdings and its subsidiaries taken as a whole or on the
performance by the Issuers and the Guarantors of their obligations under the Securities and
the Guarantees (a “Material Adverse Effect”). Holdings does not own or control, directly or
indirectly, any corporation, association or other entity other than the subsidiaries listed
in Schedule 3 to this Agreement.
(f) Capitalization. Holdings has authorized capitalization as set forth in each of the
Time of Sale Information and the Offering Memorandum under the heading “Capitalization”; all
the outstanding shares of capital stock or other equity interests or other interests
(including limited liability company interests) of each subsidiary of Holdings have been
duly and validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by Holdings, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other claim of any third party
other than liens in favor of JPMorgan Chase Bank, N.A., as collateral agent for the benefit
of the secured parties under the Company’s senior secured credit agreement dated as of June
29, 2007, as amended, and related security documents (the “Credit Documents”), and all
capital contributions required in respect of such limited liability company interests have
been paid in full. Finance Corp. has no assets, operations, revenues or cash flows other
than those related to the issuance, administration and repayment of the Securities. Its only
assets are its nominal capitalization of $1.00.
(g) Due Authorization. Each of the Issuers and each of the Guarantors have full right,
power and authority to execute and deliver this Agreement, the Securities, the Exchange
Securities and the Registration Rights Agreement (collectively, the “Transaction Documents”)
and to perform their respective obligations hereunder and thereunder and under the
Indenture; and all action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(h) The Indenture. The Indenture has been duly authorized, executed and delivered by
each Issuer and each Guarantor and constitutes a legal, valid and binding obligation of each
Issuer and each Guarantor, enforceable against each Issuer and each Guarantor in accordance
with its terms; except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
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the enforcement of creditors’ rights generally or by equitable principles relating to
enforceability regardless of whether considered in a proceeding in equity or at law
(collectively, the “Enforceability Exceptions”); and the Indenture conforms in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and the rules and regulations of the Commission applicable to an indenture
that is qualified thereunder; and conforms to the description thereof in the Offering
Memorandum; there is no, and after giving effect to the consummation of the Transactions
contemplated herein and in the Offering Memorandum there will be no, default under the
Indenture.
(i) The Securities and the Guarantees. The Securities have been duly authorized by
each of the Issuers and, when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of each of the Issuers
enforceable against each of the Issuers in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the
Guarantees have been duly authorized by each of the Guarantors and, when the Securities have
been duly executed, authenticated, issued and delivered as provided in the Indenture and
paid for as provided herein, will be valid and legally binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(j) The Exchange Securities. On the Closing Date, the Exchange Securities (including
the related guarantees) will have been duly authorized by each of the Issuers and each of
the Guarantors and, when duly executed, authenticated, issued and delivered as contemplated
by the Registration Rights Agreement, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of each of the Issuers, as issuers,
and each of the Guarantors, as guarantor, enforceable against each of the Issuers and each
of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions,
and will be entitled to the benefits of the Indenture.
(k) Purchase and Registration Rights Agreements. This Agreement has been duly
authorized, executed and delivered by each of the Issuers and each of the Guarantors; and
the Registration Rights Agreement has been duly authorized by each of the Issuers and each
of the Guarantors and on the Closing Date will be duly executed and delivered by each of the
Issuers and each of the Guarantors and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and legally binding
agreement of each of the Issuers and each of the Guarantors enforceable against each of the
Issuers and each of the Guarantors in accordance with its terms, subject to the
Enforceability Exceptions, and except that rights to indemnity and contribution thereunder
may be limited by applicable law and public policy.
(l) Descriptions of the Transaction Documents. Each Transaction Document conforms in
all material respects to the description thereof contained or incorporated by reference in
each of the Time of Sale Information and the Offering Memorandum.
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(m) No Violation or Default. Neither Holdings nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which Holdings or any of its subsidiaries is a party or by which Holdings or any of its
subsidiaries is bound or to which any of the property or assets of Holdings or any of its
subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Conflicts. The execution, delivery and performance by each of the Issuers and
each of the Guarantors of the Indenture and each of the Transaction Documents to which each
is a party, the issuance and sale of the Securities (including the Guarantees) and
compliance by each of the Issuers and each of the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Indenture and the Transaction Documents
will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of Holdings or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Holdings or any of its subsidiaries is a party or by which
Holdings or any of its subsidiaries is bound or to which any of the property or assets of
Holdings or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of Holdings or any
of its subsidiaries or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(o) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the performance by the Issuers and Guarantors of the Indenture and the
execution, delivery and performance by each of the Issuers and each of the Guarantors of
each of the Transaction Documents to which each is a party, the issuance and sale of the
Securities (including the Guarantees) and compliance by each of the Issuers and each of the
Guarantors with the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents and the Indenture, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required (i) under
applicable state securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers and (ii) with respect to the Exchange Securities
(including the related guarantees) under the Securities Act, the Trust Indenture Act and
applicable state securities laws as contemplated by the Registration Rights Agreement.
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(p) Legal Proceedings. Except as described in each of the Time of Sale Information and
the Offering Memorandum, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which Holdings or any of its subsidiaries is or may
be a party or to which any property of Holdings or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely to Holdings or any
of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; and no
such investigations, actions, suits or proceedings are, to the best knowledge of any of the
Issuers and each of the Guarantors, threatened or contemplated by any governmental or
regulatory authority or by others.
(q) Independent Accountants. Xxxxx Xxxxxxxx LLP, who have audited certain financial
statements of Holdings and its subsidiaries, including DTE Gas & Oil Company and its
subsidiaries, are independent public accountants with respect to Holdings and its
subsidiaries, including DTE Gas & Oil Company and its subsidiaries, within the applicable
rules and regulations adopted by the Commission and the Public Company Accounting Oversight
Board (United States) and as required by the Securities Act.
(r) Title to Real and Personal Property. Except as described in each of the Time of
Sale Information and the Offering Memorandum, Holdings and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items
of real and personal property that are material to the respective businesses of Holdings and
its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects
and imperfections of title except those that (i) do not materially interfere with the use
made and proposed to be made of such property by Holdings and its subsidiaries, (ii)
pursuant to the Credit Documents or (iii) could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(s) Title to Intellectual Property. Holdings and its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their
respective businesses; and the conduct of their respective businesses will not conflict in
any material respect with any such rights of others, and Holdings and its subsidiaries have
not received any notice of any claim of infringement of or conflict with any such rights of
others.
(t) No Undisclosed Relationships. No relationship, direct or indirect, exists between
or among Holdings or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders or other affiliates of Holdings or any of its subsidiaries, on the other, that
would be required by the Securities Act to be described in a registration statement to be
filed with the Commission and that is not so described in each of the Time of Sale
Information and the Offering Memorandum.
(u) Investment Company Act. Neither Holdings nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in each of the Time of Sale Information and the Offering
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Memorandum none of them will be, an “investment company” or an entity “controlled” by
an “investment company” within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder (collectively, the
“Investment Company Act”).
(v) Taxes. Holdings and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or filed through the date
hereof; and except as otherwise disclosed in each of the Time of Sale Information and the
Offering Memorandum, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against Holdings or any of its subsidiaries or any of their
respective properties or assets.
(w) Licenses and Permits. Holdings and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in each of the Time of Sale
Information and the Offering Memorandum, except where the failure to possess or make the
same would not, individually or in the aggregate, have a Material Adverse Effect; and except
as described in each of the Time of Sale Information and the Offering Memorandum, neither
Holdings nor any of its subsidiaries has received notice of any revocation or modification
of any such license, certificate, permit or authorization or has any reason to believe that
any such license, certificate, permit or authorization will not be renewed in the ordinary
course, except where such revocation, modification or non-renewal would not have a Material
Adverse Effect.
(x) No Labor Disputes. Neither Holdings nor any of its subsidiaries has any employees
and, to the best knowledge of the Issuers and each of the Guarantors, no labor disturbance
by or dispute with employees of Atlas Energy Management, Inc. exists or, is contemplated or
threatened and neither Issuer nor any Guarantor is aware of any existing or imminent labor
disturbance by, or dispute with, the employees of Atlas Energy Management, Inc., Holdings or
any of Holdings’ subsidiaries’ principal suppliers, contractors or customers, except as
would not have a Material Adverse Effect.
(y) Compliance With Environmental Laws. (i) Holdings and its subsidiaries (x) are, and
at all prior times were, in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions and orders relating to the
protection of human health or safety, the environment, natural resources, hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (y)
have received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws to conduct
their respective businesses, and (z) have not received notice of any actual or potential
liability under or relating to any Environmental Laws, including for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, and (ii) there are no costs or
liabilities associated with Environmental Laws
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of or relating to Holdings or its subsidiaries, except in the case of each of (i) and
(ii) above, for any such failure to comply, or failure to receive required permits, licenses
or approvals, or cost or liability, as would not, individually or in the aggregate, have a
Material Adverse Effect; and (iii) except as described in each of the Time of Sale
Information and the Offering Memorandum, (x) there are no proceedings that are pending, or
that are known to be contemplated, against Holdings or any of its subsidiaries under any
Environmental Laws in which a governmental entity is also a party, other than such
proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or
more will be imposed, (y) Holdings and its subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a Material Adverse Effect and (z)
none of Holdings and its subsidiaries anticipates material capital expenditures relating to
any Environmental Laws.
(z) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
for which Holdings or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each,
a “Plan”) has been maintained in compliance in all material respects with its terms and the
requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
excluding transactions effected pursuant to a statutory or administrative exemption; (iii)
for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302
of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code, whether
or not waived, has occurred or is reasonably expected to occur; (iv) the fair market value
of the assets of each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan); (v) no “reportable event”
(within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur; and (vi) neither Holdings nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA (other than contributions
to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of
ERISA).
(aa) Disclosure Controls. Holdings and its subsidiaries maintain a system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act)
sufficient to provide reasonable assurance that information required to be disclosed by
Holdings in reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the Commission’s rules and
forms, including controls and procedures designed to ensure that such information is
accumulated and communicated to Holdings’ management as appropriate to allow timely
decisions regarding required disclosure. Holdings and its subsidiaries have carried out
-11-
evaluations of the effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(bb) Accounting Controls. Holdings and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that
comply with the requirements of the Exchange Act and have been designed by, or under the
supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. Holdings and its
subsidiaries maintain internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in each of the Time of Sale
Information and the Offering Memorandum, there are no material weaknesses or significant
deficiencies in Holdings’ internal controls.
(cc) Insurance. Holdings and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, which insurance is in amounts and insures
against such losses and risks as are customary in their respective businesses; and neither
Holdings nor any of its subsidiaries has (i) received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or necessary to be
made in order to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
(dd) No Unlawful Payments. Neither Holdings nor any of its subsidiaries nor, to the
best knowledge of the Issuers and each of the Guarantors, any director, officer, agent,
employee or other person associated with or acting on behalf of Holdings or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(ee) Compliance with Money Laundering Laws. The operations of Holdings and its
subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
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(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving
Holdings or any of its subsidiaries with respect to the Money Laundering Laws is pending or,
to the best knowledge of Holdings, threatened.
(ff) Compliance with OFAC. None of Holdings, any of its subsidiaries or, to the
knowledge of Holdings, any director, officer, agent, employee or affiliate of Holdings or
any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and
Holdings will not directly or indirectly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(gg) No Restrictions on Subsidiaries. No subsidiary of Holdings is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a
party or is subject, from paying any dividends or distributions to Holdings, from making any
other distribution on such subsidiary’s capital stock, from repaying to Holdings any loans
or advances to such subsidiary from Holdings or from transferring any of such subsidiary’s
properties or assets to Holdings or any other subsidiary of Holdings.
(hh) No Broker’s Fees. Neither Holdings nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against any of them or any Initial Purchaser for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
(ii) Rule 144A Eligibility. On the Closing Date, the Securities will not be of the
same class as securities listed on a national securities exchange registered under Section 6
of the Exchange Act or quoted in an automated inter-dealer quotation system.
(jj) No Integration. Neither the Issuers nor any of their affiliates (as defined in
Rule 501(b) of Regulation D) has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act), that is or will be integrated with the sale of the Securities in a
manner that would require registration of the Securities under the Securities Act.
(kk) No General Solicitation or Directed Selling Efforts. None of the Issuers or any
of their affiliates or any other person acting on their behalf (other than the Initial
Purchasers, as to which no representation is made) has (i) solicited offers for, or offered
or sold, the Securities by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act or (ii) engaged in any
directed selling efforts within the meaning of Regulation S under the Securities Act
(“Regulation S”), and all such persons have complied with the offering restrictions
requirement of Regulation S.
-13-
(ll) Securities Law Exemptions. Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 1(b) (including Annex B hereto)
and their compliance with their agreements set forth therein, it is not necessary, in
connection with the issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act.
(mm) No Stabilization. Neither of the Issuers nor any of the Guarantors has taken,
directly or indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Securities.
(nn) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Issuers as described in each of the Time of Sale
Information and the Offering Memorandum will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(oo) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained or
incorporated by reference in any of the Time of Sale Information or the Offering Memorandum
has been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(pp) Statistical and Market Data. Nothing has come to the attention of the Issuers
that has caused the Issuers to believe that the statistical and market-related data included
or incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum is not based on or derived from sources that are reliable and accurate in all
material respects.
(qq) Engineers; Reserve Report. The information described in the Time of Sale
Information and the Offering Memorandum regarding the estimated proved reserves of the
Issuers and their respective subsidiaries is based on the report generated by Xxxxxx and
Company, Inc., as independent petroleum engineers with respect to the Issuers and their
respective subsidiaries (the “Engineer”). The information underlying the estimates of the
reserves of the Issuers and their respective subsidiaries supplied by the Issuers to the
Engineer, for the purposes of preparing the reserve reports of the Issuers and their
respective subsidiaries referenced in the Time of Sale Information and the Offering
Memorandum (the “Reserve Report”), was true and correct in all material respects on the date
of each such Reserve Report; the estimates of future capital expenditures and other future
exploration and development costs supplied to the Engineer were prepared in good faith and
with a reasonable basis; the information provided to the Engineer for purposes of preparing
the Reserve Report was prepared in all material respects in accordance with customary
industry practices; the Engineer was, as of the date of the Reserve Report prepared by it,
and is, as of the date hereof, independent petroleum engineer with respect to Holdings and
its subsidiaries; other than normal production of reserves and intervening
-14-
spot market product price fluctuations, and except as disclosed in the Time of Sale
Information and the Offering Memorandum, the Issuers and the Guarantors are not aware of any
facts or circumstances that would result in a material decline in the reserves in the
aggregate, or the aggregate present value of future net cash flows therefrom, as described
in the Time of Sale Information and the Offering Memorandum and as reflected in the Reserve
Report; estimates of such reserves and the present value of the future net cash flows
therefrom as described in the Time of Sale Information and the Offering Memorandum and
reflected in the Reserve Report comply in all material respects with the Securities Act.
(rr) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of Holdings or
any of Holdings’ directors or officers, in their capacities as such, to comply with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), to the extent applicable, including Section
402 related to loans and Sections 302 and 906 related to certifications.
4. Further Agreements of the Issuers and the Guarantors. Each of the Issuers and each
of the Guarantors jointly and severally covenant and agree with each Initial Purchaser that:
(a) Delivery of Copies. The Issuers will deliver, without charge, to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum, any other Time of Sale
Information, any Issuer Written Communication and the Offering Memorandum (including all
amendments and supplements thereto as well as any information incorporated by reference
therein) as the Representative may reasonably request.
(b) Offering Memorandum, Amendments or Supplements. Before finalizing the Offering
Memorandum or making or distributing any amendment or supplement to any of the Time of Sale
Information or the Offering Memorandum, the Issuers will furnish to the Representative and
counsel for the Initial Purchasers a copy of the proposed Offering Memorandum or such
amendment or supplement for review, and will not distribute any such proposed Offering
Memorandum, amendment or supplement to which the Representative reasonably objects.
(c) Additional Written Communications. Before making, preparing, using, authorizing,
approving or referring to any Issuer Written Communication, the Issuers will furnish to the
Representative and counsel for the Initial Purchasers a copy of such written communication
for review and will not make, prepare, use, authorize, approve or refer to any such written
communication to which the Representative reasonably objects.
(d) Notice to the Representative. The Issuers will advise the Representative promptly,
and confirm such advice in writing, (i) of the issuance by any governmental or regulatory
authority of any order preventing or suspending the use of any of the Time of Sale
Information, any Issuer Written Communication or the Offering Memorandum or the initiation
or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at
any time prior to the completion of the initial offering of the Securities as a result of
which any of the Time of Sale Information, any Issuer Written Communication
-15-
or the Offering Memorandum as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when such Time of Sale
Information, Issuer Written Communication or the Offering Memorandum is delivered to a
purchaser, not misleading; and (iii) of the receipt by an Issuer of any notice with respect
to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Issuers will use their reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of any of the Time of Sale Information, any Issuer Written
Communication or the Offering Memorandum or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which any of the Time of Sale
Information as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading or (ii) it is
necessary to amend or supplement any of the Time of Sale Information to comply with law, the
Issuers will immediately notify the Initial Purchasers thereof and forthwith prepare and,
subject to paragraph (b) above, furnish to the Initial Purchasers such amendments or
supplements to any of the Time of Sale Information as may be necessary so that the
statements in any of the Time of Sale Information as so amended or supplemented will not, in
light of the circumstances under which they were made, be misleading or so that any of the
Time of Sale Information will comply with law.
(f) Ongoing Compliance of the Offering Memorandum. If at any time prior to the
completion of the initial offering of the Securities (i) any event shall occur or condition
shall exist as a result of which the Offering Memorandum as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Offering Memorandum to comply with law, the Issuers
will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to
paragraph (b) above, furnish to the Initial Purchasers such amendments or supplements to the
Offering Memorandum as may be necessary so that the statements in the Offering Memorandum as
so amended or supplemented will not, in the light of the circumstances existing when the
Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum will comply with law.
(g) Blue Sky Compliance. The Issuers will qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as required for
the offering and resale of the Securities; provided that neither the Issuers nor any
of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity
or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so
-16-
qualify, (ii) file any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(h) Clear Market. During the period from the date hereof through and including the
date that is 60 days after the date hereof, neither Holdings nor any its affiliates will,
without the prior written consent of the Representative, offer, sell, contract to sell or
otherwise dispose of any debt securities issued or guaranteed by the Issuers or any of the
Guarantors and having a tenor of more than one year.
(i) Use of Proceeds. The Issuers will apply the net proceeds from the sale of the
Securities as described in each of the Time of Sale Information and the Offering Memorandum
under the heading “Use of proceeds”.
(j) Supplying Information. While the Securities remain outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuers and
each of the Guarantors will, during any period in which Holdings is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the
Securities and prospective purchasers of the Securities designated by such holders, upon the
request of such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(k) PORTAL and DTC. The Issuers will assist the Initial Purchasers in arranging for
the Securities to be designated Private Offerings, Resales and Trading through Automated
Linkages (“PORTAL”) Market securities in accordance with the rules and regulations adopted
by the Financial Industry Regulatory Authority, Inc. (the “FINRA”) relating to trading in
the PORTAL Market and for the Securities to be eligible for clearance and settlement through
The Depository Trust Company (“DTC”).
(l) No Resales by the Issuers. The Issuers will not, and will not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been acquired by any of them, except for Securities purchased by the
Issuers or any of their affiliates and resold in a transaction registered under the
Securities Act or subsequent to the consummation of the exchange offer referred to in the
Registration Rights Agreement.
(m) No Integration. Neither the Issuers nor any of their affiliates (as defined in
Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale,
solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the
Securities Act), that is or will be integrated with the sale of the Securities in a manner
that would require registration of the Securities under the Securities Act.
(n) No General Solicitation or Directed Selling Efforts. None of the Issuers or any of
their affiliates or any other person acting on their behalf (other than the Initial
Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell,
the Securities by means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
-17-
selling efforts within the meaning of Regulation S, and all such persons will comply
with the offering restrictions requirement of Regulation S.
(o) No Stabilization. Neither of the Issuers nor any of the Guarantors will take,
directly or indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Securities.
5. Certain Agreements of the Initial Purchasers. Each Initial Purchaser hereby
represents and agrees that it has not and will not use, authorize use of, refer to, or participate
in the planning for use of, any written communication that constitutes an offer to sell or the
solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum
and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) that was not included (including through
incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum,
(iii) any written communication attached as Annex A or prepared pursuant to Section 4(c) above
(including any electronic road show), (iv) any written communication prepared by such Initial
Purchaser and approved by the Issuers in advance in writing or (v) any written communication
relating to or that contains the terms of the Securities and/or other information that was
contained or incorporated by reference in the Preliminary Offering Memorandum or the Offering
Memorandum.
6. Conditions of Initial Purchasers’ Obligations. The obligation of each Initial
Purchaser to purchase Securities on the Closing Date as provided herein is subject to the
performance by each of the Issuers and each of the Guarantors of their respective covenants and
other obligations hereunder and to the following additional conditions:
(a) Representations and Warranties. The representations and warranties of each of the
Issuers and the Guarantors contained herein shall be true and correct on the date hereof and
on and as of the Closing Date; and the statements of each of the Issuers, the Guarantors and
their respective officers made in any certificates delivered pursuant to this Agreement
shall be true and correct on and as of the Closing Date.
(b) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the
execution and delivery of this Agreement, (i) no downgrading shall have occurred in the
rating accorded the Securities or any other debt securities issued or guaranteed by Holdings
or any of its subsidiaries by any “nationally recognized statistical rating organization”,
as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act; and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of the
Securities or of any other debt securities issued or guaranteed by Holdings or any of its
subsidiaries (other than an announcement with positive implications of a possible
upgrading).
(c) No Material Adverse Change. No event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not described in
each of the Time of Sale Information (excluding any amendment or supplement thereto) and the
Offering Memorandum (excluding any amendment or
-18-
supplement thereto) the effect of which in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum.
(d) Officer’s Certificate. The Representative shall have received on and as of the
Closing Date a certificate of an executive officer of the Issuers and of each Guarantor who
has specific knowledge of the Issuers’ or such Guarantor’s financial matters and is
satisfactory to the Representative (i) confirming that each of the representations and
warranties of the Issuers and the Guarantors in this Agreement are true and correct and that
the Issuers and the Guarantors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to the Closing
Date and (ii) to the effect set forth in paragraphs (b) and (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date, Xxxxx
Xxxxxxx LLP shall have furnished to the Representative, at the request of the Issuers,
letters, dated the respective dates of delivery thereof and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Representative, containing
statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in each of the Time of Sale Information
and the Offering Memorandum; provided that the letter delivered on the Closing Date
shall use a “cut-off” date no more than three business days prior to the Closing Date.
(f) Reserve Engineer Letter. The Initial Purchasers shall have received a letter,
dated the Closing Date and addressed to the Initial Purchasers, from Xxxxxx and Company,
Inc., an independent petroleum engineering firm with respect to the Company and/or its
subsidiaries, in form and substance reasonably satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers.
(g) Opinion and 10b-5 Statement of Counsel for the Issuers. Ledgewood, P.C., counsel
for the Issuers and the Guarantors, shall have furnished to the Representative, at the
request of the Issuers and the Guarantors, their written opinion and 10b-5 statement, dated
the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex C hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The
Representative shall have received on and as of the Closing Date an opinion and 10b-5
statement of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Initial Purchasers, with
respect to such matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request to enable them
to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
-19-
federal, state or foreign governmental or regulatory authority that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of the
Guarantees; and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees.
(j) Good Standing. The Representative shall have received on and as of the Closing
Date satisfactory evidence of the good standing of each of the Issuers and each of the
Guarantors in their respective jurisdictions of organization and their good standing in such
other jurisdictions as the Representative may reasonably request, in each case in writing or
any standard form of telecommunication, from the appropriate governmental authorities of
such jurisdictions.
(k) Registration Rights Agreement. The Initial Purchasers shall have received a
counterpart of the Registration Rights Agreement that shall have been executed and delivered
by a duly authorized officer of each of the Issuers and each of the Guarantors.
(l) PORTAL and DTC. The Securities shall have been approved by the FINRA for trading
in The PORTALSM Market and shall be eligible for clearance and
settlement through DTC.
(m) Additional Documents. On or prior to the Closing Date, the Issuers and the
Guarantors shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial Purchasers.
7. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. Each of the Issuers and each of the Guarantors
jointly and severally agree to indemnify and hold harmless each Initial Purchaser, its affiliates,
directors and officers and each person, if any, who controls (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act), such Initial Purchaser from and against any
and all losses, claims, damages and liabilities (including, without limitation, reasonable legal
fees and other expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact contained or
incorporated by reference in the Preliminary Offering Memorandum, any of the other Time of Sale
Information, any Issuer Written Communication or the Offering Memorandum (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
-20-
any information relating to any Initial Purchaser furnished to the Issuers in writing by such
Initial Purchaser through the Representative expressly for use therein.
(b) Indemnification of the Issuers. Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Issuers, each of the Guarantors, each of their respective
directors and officers and each person, if any, who controls (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) the Issuers or any of the Guarantors to the
same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to such Initial Purchaser furnished to the Issuers in writing by such Initial
Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum, any
of the other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum
(or any amendment or supplement thereto), it being understood and agreed that the only such
information consists of the third and fourth sentences of the eleventh paragraph and the fourteenth
paragraph under the caption “Plan of Distribution” in the Preliminary Offering Memorandum and the
Offering Memorandum.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraphs (a) and (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraphs (a) and (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay
the fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition
-21-
to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Initial Purchaser, its
affiliates, directors and officers and any control persons of such Initial Purchaser shall be
designated in writing by X.X. Xxxxxx Securities Inc. and any such separate firm for the Issuers,
the Guarantors, their respective directors and officers and any control persons of the Issuers and
the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Issuers and the
Guarantors on the one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Issuers and the Guarantors on the one hand and the Initial
Purchasers on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers and the Guarantors on the one hand and the Initial
Purchasers on the other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Issuers from the sale of the Securities bear
to the total discounts and commissions received by the Initial Purchasers in connection therewith,
as provided in this Agreement, bear to the aggregate offering price of the Securities. The
relative fault of the Issuers and the Guarantors on the one hand and the Initial Purchasers on the
other 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 the Issuers or any Guarantor or by the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-22-
(e) Limitation on Liability. The Issuers, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Initial Purchasers 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 Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions received by such
Initial Purchaser with respect to the offering of the Securities exceeds the amount of any damages
that such Initial Purchaser 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’
obligations to contribute pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at
law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
on or prior to the Closing Date (i) trading generally shall have been suspended or materially
limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Issuers or any of the Guarantors shall have been suspended
on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the judgment of the
Representative, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery, of the Securities on the terms and in the manner contemplated by
this Agreement, the Time of Sale Information and the Offering Memorandum.
9. Defaulting Initial Purchaser. If any one or more Initial Purchasers shall fail to
purchase and pay for any of the Securities agreed to be purchased by such Initial Purchaser
hereunder, and, in each case, such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining Initial Purchasers, as
the case may be, shall be obligated severally to take up and pay for (in the respective proportions
that the principal amount of Securities set forth opposite their names in Schedule I hereto
bears to the aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities that the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase; provided, however, that in the event that
the aggregate principal amount of the Securities that the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule I
-23-
hereto, the Issuers shall be entitled to a period of 36 hours within which to procure another
party or parties reasonably satisfactory to the non-defaulting Initial Purchasers to purchase no
less than the amount of such unpurchased Securities that exceeds 10% of the principal amount
thereof upon such terms herein set forth. If, however, the Issuers shall not have completed such
arrangements within 72 hours after such default and the principal amount of unpurchased Securities
exceeds 10% of the principal amount of such Securities to be purchased on such date, then this
Agreement will terminate without liability to any non-defaulting Initial Purchaser or the Issuers.
In the event of a default by any Initial Purchaser as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, to effect any changes that in
the opinion of counsel for the Issuers or counsel for the Representative shall determine are
necessary in the Offering Memorandum or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its
liability, if any, to the Issuers or any nondefaulting Initial Purchaser for damages occasioned by
its default hereunder.
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Issuers and each of the Guarantors jointly and severally agree to pay
or cause to be paid all costs and expenses incident to the performance of their respective
obligations hereunder, including without limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation and printing of the Preliminary Offering
Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering
Memorandum (including any amendment or supplement thereto as well as any information incorporated
by reference therein) and the distribution thereof; (iii) the costs of reproducing and distributing
each of the Transaction Documents; (iv) the fees and expenses of the Issuers’ and the Guarantors’
counsel and independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of
counsel for the Initial Purchasers); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees
and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in
connection with the application for the inclusion of the Securities on the PORTAL Market and the
approval of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the
Issuers in connection with any “road show” presentation to potential investors (including 50% of
the expense of any chartered aircraft jointly used).
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Issuers for any reason
fail to tender the Securities for delivery to the Initial Purchasers or (iii) the Initial
Purchasers decline to purchase the Securities for any reason permitted under this Agreement (other
than by reason of a default by any of the Initial Purchasers), each of the Issuers and each of the
Guarantors jointly and severally agrees to reimburse the Initial Purchasers for all out-of-pocket
costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the
Initial Purchasers in connection with this Agreement and the offering contemplated hereby.
-24-
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon (i) the parties hereto and their respective successors and any
controlling persons referred to herein, and (ii) the affiliates, officers and directors of each
Initial Purchaser referred to in Section 7 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Initial Purchaser shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Issuers, the Guarantors and the Initial Purchasers contained in
this Agreement or made by or on behalf of the Issuers, the Guarantors or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Securities and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Issuers, the
Guarantors or the Initial Purchasers.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “Exchange Act” means the Securities Exchange
Act of 1934, as amended; (d) the term “subsidiary” has the meaning set forth in Rule 405 under the
Securities Act; and (e) the term “written communication” has the meaning set forth in Rule 405
under the Securities Act.
14. Miscellaneous.
(a) Authority of the Representative. Any action by the Initial Purchasers hereunder may be
taken by X.X. Xxxxxx Securities Inc. on behalf of the Initial Purchasers, and any such action taken
by X.X. Xxxxxx Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given to the Representative c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000)-000-0000); Attention:
Xxxxxxxx Xxxxxx. Notices to the Issuers and the Guarantors shall be given to them at Atlas Energy
Operating Company, LLC, 0000 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxxx
00000 (fax: (000) 000-0000; Attention: Xxxx Xxxxxxxxxx), with a copy to Ledgewood, P.C., Attention:
Xxxx X. Xxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (fax: (000) 000-0000;
Attention: Xxxx X. Xxxxx).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
-25-
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
-26-
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, ATLAS ENERGY OPERATING COMPANY, LLC |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| ATLAS ENERGY FINANCE CORP. |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| ATLAS ENERGY RESOURCES, LLC |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| THE ENTITIES LISTED ON SCHEDULE 4 HERETO |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
-27-
| Accepted: May 6, 2008 X.X. XXXXXX SECURITIES INC. For itself and on behalf of the several Initial Purchasers listed in Schedule 1 hereto. |
|||||
| By: | |||||
| Authorized Signatory | |||||
-28-
Schedule 1
| Initial Purchaser | Principal Amount | |||
X.X. Xxxxxx Securities Inc. |
$ | 90,000,000.00 | ||
Wachovia Capital Markets, LLC |
30,000,000.00 | |||
Banc of America Securities, LLC |
7,500,000.00 | |||
BNP Paribas Securities Corp. |
7,500,000.00 | |||
RBC Capital Markets Corporation |
7,500,000.00 | |||
Xxxxx Fargo Securities, LLC |
3,750,000.00 | |||
BBVA Securities, Inc. |
3,750,000.00 | |||
Total |
$ | 150,000,000.00 | ||
-29-
Schedule 2
Guarantors
AER PIPELINE CONSTRUCTION, INC.
AIC, LLC
ATLAS AMERICA, LLC
ATLAS GAS & OIL COMPANY, LLC
ATLAS NOBLE LLC
ATLAS ENERGY MICHIGAN, LLC
ATLAS ENERGY OHIO, LLC
ATLAS RESOURCES, LLC
REI-NY, LLC.
RESOURCE ENERGY, LLC
RESOURCE WELL SERVICES, LLC
VIKING RESOURCES, LLC
WESTSIDE PIPELINE COMPANY LLC
AIC, LLC
ATLAS AMERICA, LLC
ATLAS GAS & OIL COMPANY, LLC
ATLAS NOBLE LLC
ATLAS ENERGY MICHIGAN, LLC
ATLAS ENERGY OHIO, LLC
ATLAS RESOURCES, LLC
REI-NY, LLC.
RESOURCE ENERGY, LLC
RESOURCE WELL SERVICES, LLC
VIKING RESOURCES, LLC
WESTSIDE PIPELINE COMPANY LLC
Schedule 3
Subsidiaries of Atlas Energy Resources, LLC (“Holdings”)
| Jurisdiction of Incorporation | Assumed Names Under Which | |||
| Name of Subsidiary | or Organization | Subsidiary Does Business | ||
ATLAS ENERGY OPERATING COMPANY, LLC
|
Delaware | None | ||
ATLAS ENERGY FINANCE CORP.
|
Delaware | None | ||
AER PIPELINE CONSTRUCTION, INC.
|
Delaware | None | ||
AIC, LLC
|
Delaware | None | ||
ANTHEM SECURITIES, INC.
|
Pennsylvania | None | ||
ATLAS AMERICA, LLC
|
Pennsylvania | Atlas Energy Resources, LLC (in Ohio) Atlas Energy Resources (in West Virginia and Tennessee) | ||
ATLAS ENERGY MICHIGAN, LLC
|
Delaware | None | ||
ATLAS ENERGY OHIO, LLC
|
Ohio | None | ||
ATLAS GAS & OIL COMPANY, LLC
|
Michigan | None | ||
ATLAS NOBLE LLC
|
Delaware | None | ||
ATLAS RESOURCES, LLC
|
Pennsylvania | Atlas Energy Resources (in West Virginia and Tennessee) | ||
REI-NY, LLC.
|
Delaware | None | ||
RESOURCE ENERGY, LLC
|
Delaware | Atlas Energy Resources (in New York) |
||
RESOURCE WELL SERVICES, LLC
|
Delaware | None | ||
VIKING RESOURCES, LLC
|
Pennsylvania | None | ||
WESTSIDE PIPELINE COMPANY LLC
|
Michigan | None |
Schedule 4
AER PIPELINE CONSTRUCTION, INC.
AIC, LLC
ATLAS AMERICA, LLC
ATLAS GAS & OIL COMPANY, LLC
ATLAS NOBLE LLC
ATLAS ENERGY MICHIGAN, LLC
ATLAS ENERGY OHIO, LLC
ATLAS RESOURCES, LLC
REI-NY, LLC.
RESOURCE ENERGY, LLC
RESOURCE WELL SERVICES, LLC
VIKING RESOURCES, LLC
WESTSIDE PIPELINE COMPANY LLC
AIC, LLC
ATLAS AMERICA, LLC
ATLAS GAS & OIL COMPANY, LLC
ATLAS NOBLE LLC
ATLAS ENERGY MICHIGAN, LLC
ATLAS ENERGY OHIO, LLC
ATLAS RESOURCES, LLC
REI-NY, LLC.
RESOURCE ENERGY, LLC
RESOURCE WELL SERVICES, LLC
VIKING RESOURCES, LLC
WESTSIDE PIPELINE COMPANY LLC
-2-
ANNEX A
Additional Time of Sale Information
ANNEX B
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United States:
(a) Each Initial Purchaser acknowledges that the Securities have not been registered
under the Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except pursuant to an exemption from, or in
transactions not subject to, the registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:
(i) Such Initial Purchaser has offered and sold the Securities, and will offer
and sell the Securities, (A) as part of their distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the offering of the
Securities and the Closing Date, only in accordance with Regulation S under the
Securities Act (“Regulation S”) or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates or any other
person acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and all such persons have complied
and will comply with the offering restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, such Initial Purchaser will have sent to each distributor,
dealer or other person receiving a selling concession, fee or other remuneration
that purchase Securities from it during the distribution compliance period a
confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule 144A or any other
available exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S.”
(iv) Such Initial Purchaser has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent of the
Issuers.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this Agreement
have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:
(i) in relation to each Member State (each, a “Relevant Member State”)
of the European Economic Area that has implemented Directive 2003/71/EC (including
any relevant implementing measure in each Relevant Member State, the “Prospectus
Directive”), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”), it has not made and will not make an offer of Securities
to the public (as such expression is defined in Section 17) in that Relevant Member
State prior to the publication of a prospectus in relation to the Securities that
has been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Securities to the public in that Relevant
Member State at any time: (A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities; (B) to any legal entity which
has two or more of (1) an average of at least 250 employees during the last
financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual
net turnover of more than €50,000,000, as shown in its last annual or consolidated
accounts; or (C) in any other circumstances which do not require the publication by
the Issuers of a prospectus pursuant to Article 3 of the Prospectus Directive;
(ii) For the purposes of paragraph (c)(i), the expression an “offer of
Securities to the public” in relation to any notes in any Relevant Member State
means the communication in any form and by any means of sufficient information on
the terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe the Securities, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member
State and the expression “Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State;
(iii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the Financial Services and
Markets Xxx 0000 (the “FSMA”)) received by it in connection with
-2-
the issue or sale of any Securities in circumstances in which Section 21(1) of
the FSMA does not apply to the Issuers or the Guarantors;
(iv) it has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and
(v) it has not, directly or indirectly, offered or sold and will not, directly
or indirectly, offer or sell in the Netherlands any Securities with a denomination
of less than €50,000 (or its other currency equivalent) other than to persons who
trade or invest in securities in the conduct of a profession or business (which
includes banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments of large
enterprises) unless one of the other exemptions from or exceptions to the
prohibition contained in article 3 of the Dutch Securities Transactions Supervision
Act 1995 (Wet toezicht effectenverkeer 1995) is applicable and the conditions
attached to such exemption or exception are complied with.
(d) Each Initial Purchaser acknowledges that no action has been or will be taken by the
Issuers that would permit a public offering of the Securities, or possession or distribution
of any of the Time of Sale Information, the Offering Memorandum, any Issuer Written
Communication or any other offering or publicity material relating to the Securities, in any
country or jurisdiction where action for that purpose is required.
-3-
ANNEX C
[Form of Opinion of Counsel for the Issuers and the Guarantors]
(a) Holdings and each of its subsidiaries have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction in which the conduct of
their respective businesses requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or authority would not, individually
or in the aggregate, have a Material Adverse Effect.
(b) Holdings has capitalization as set forth in each of the Time of Sale Information and the
Offering Memorandum under the heading “Capitalization”; and all the outstanding shares of capital
stock or other equity interests or other interests (including limited liability company interests)
of each subsidiary of Holdings have been duly and validly authorized and issued, are fully paid and
non-assessable, and all capital contributions in respect of such limited liability company
interests have been paid in full.
(c) Each of the Issuers and each of the Guarantors have full right, power and authority to
execute and deliver each of the Transaction Documents to which each is a party and to perform their
respective obligations thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and the consummation of
the transactions contemplated thereby has been duly and validly taken.
(d) The Indenture has been duly authorized, executed and delivered by each of the Issuers and
each of the Guarantors and, assuming due execution and delivery thereof by the Trustee, constitutes
a valid and legally binding agreement of each of the Issuers and each of the Guarantors enforceable
against each of the Issuers and each of the Guarantors in accordance with its terms, subject to the
Enforceability Exceptions; and the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable
to an indenture that is qualified thereunder (except with respect to the qualification of the
Trustee).
(e) The Securities have been duly authorized, executed and delivered by each of the Issuers
and, when duly authenticated as provided in the Indenture and paid for as provided in this
Agreement, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of each of the Issuers enforceable against each of the Issuers in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of
the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the
Securities have been duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided in this Agreement, will be valid and legally binding obligations
of each of the Guarantors, enforceable against each of the Guarantors in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(f) The Exchange Securities (including the related guarantees) have been duly authorized by
each of the Issuers and each of the Guarantors and, when duly executed, authenticated, issued and
delivered as contemplated by the Registration Rights Agreement, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of each of the Issuers, as
issuer, and each of the Guarantors, as guarantor, enforceable against each of the Issuers and each
of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and
will be entitled to the benefits of the Indenture.
(g) This Agreement has been duly authorized, executed and delivered by each of the Issuers and
the Guarantors; and the Registration Rights Agreement has been duly authorized, executed and
delivered by each of the Issuers and each of the Guarantors and, when duly executed and delivered
by the other parties thereto, will constitute a valid and legally binding agreement of each of the
Issuers and each of the Guarantors enforceable against each of the Issuers and each of the
Guarantors in accordance with its terms, subject to the Enforceability Exceptions, and except that
rights to indemnity and contribution thereunder may be limited by applicable law and public policy.
(h) Each Transaction Document and the Indenture conforms in all material respects to the
description thereof contained in each of the Time of Sale Information and the Offering Memorandum.
(i) The execution, delivery and performance by each of the Issuers and each of the Guarantors
of each of the Transaction Documents to which each is a party, the issuance and sale of the
Securities (including the Guarantees) and compliance by each of the Issuers and each of the
Guarantors with the terms thereof and the consummation of the transactions contemplated by the
Transaction Documents will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of Holdings or any of its subsidiaries
pursuant to, any material indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which Holdings or any of its subsidiaries is a party or by which
Holdings or any of its subsidiaries is bound or to which any of the property or assets of Holdings
or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of Holdings or any of its subsidiaries or
(iii) result in the violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i)
and (iii) above, for any such conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority is required for the execution, delivery
and performance by each of the Issuers and each of the Guarantors of each of the Transaction
Documents to which each is a party, the issuance and sale of the Securities (including the
Guarantees) and compliance by each of the Issuers and each of the Guarantors with the terms thereof
and the consummation of the transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, orders and registrations or qualifications as may be required
(i) under applicable state securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers and (ii) with
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respect to the Exchange Securities (including the related guarantees) under the Securities Act
and applicable state securities laws as contemplated by the Registration Rights Agreement.
(k) To the best knowledge of such counsel, except as described in each of the Time of Sale
Information and the Offering Memorandum, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which Holdings or any of its subsidiaries
is or may be a party or to which any property of Holdings or any of its subsidiaries is or may be
the subject that, individually or in the aggregate, if determined adversely to Holdings or any of
its subsidiaries, could reasonably be expected to have a Material Adverse Effect; and no such
investigations, actions, suits or proceedings are threatened or, to the best knowledge of such
counsel, contemplated by any governmental or regulatory authority or threatened by others.
(l) The descriptions in each of the Time of Sale Information and the Offering Memorandum of
statutes, legal, governmental and regulatory proceedings and contracts and other documents are
accurate in all material respects; and the statements in each of the Time of Sale Information and
the Offering Memorandum under the heading “Certain Federal Income Tax Considerations”, to the
extent that they constitute summaries of matters of law or regulation or legal conclusions, fairly
summarize the matters described therein in all material respects.
(m) Neither Holdings nor any of its subsidiaries is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in each of the
Time of Sale Information and the Offering Memorandum none of them will be, an “investment company”
or an entity “controlled” by an “investment company” within the meaning of the Investment Company
Act.
(n) Neither the issuance, sale and delivery of the Securities nor the application of the
proceeds thereof by the Issuers as described in each of the Time of Sale Information and the
Offering Memorandum will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(o) Assuming the accuracy of the representations, warranties and agreements of the Issuers,
the Guarantors and the Initial Purchasers contained in this Agreement, it is not necessary, in
connection with the issuance and sale of the Securities to the Initial Purchasers and the offer,
resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this
Agreement, the Time of Sale Information and the Offering Memorandum, to register the Securities
under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
Such counsel shall also state that they have participated in conferences with representatives
of the Issuers and with representatives of their independent accountants and counsel at which
conferences the contents of the Time of Sale Information and the Offering Memorandum and any
amendment and supplement thereto and related matters were discussed and, although such counsel
assume no responsibility for the accuracy, completeness or fairness of the Time of Sale Information
and the Offering Memorandum and any amendment or supplement thereto (except as expressly provided
above), nothing has come to the attention of such counsel to cause such counsel to believe that the
Time of Sale Information, at the Time of Sale (which such counsel may assume to be the date of this
Agreement), contained any untrue
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statement of a material fact or omitted to state a material fact or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
or that the Offering Memorandum or any amendment or supplement thereto, as of its date and the
Closing Date, contained or contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than, in each case, the financial statements and other
financial information contained therein, as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact on certificates of
responsible officers of the Issuers and the Guarantors and public officials that are furnished to
the Initial Purchasers.
The opinion of Ledgewood, P.C. described above shall be rendered to the Initial Purchasers at
the request of the Issuers and shall so state therein.
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