ATLAS PIPELINE PARTNERS, L.P.
1,092,500 Common Units
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
May ___, 2003
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
McDONALD INVESTMENTS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
as Representatives of the Several Underwriters named in Schedule I hereto
c/o Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
Potomac Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
Atlas Pipeline Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell (the "Offering") an aggregate of
950,000 common units (the "Firm Units") representing limited partner interests
in the Partnership (the "Common Units") to the several underwriters named in
Schedule I hereto (the "Underwriters"), upon the terms and conditions set forth
in Section 2 hereof. The Partnership also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an additional
142,500 Common Units (the "Additional Units"). The Firm Units and the Additional
Units are hereinafter collectively referred to as the "Units."
The Partnership and the General Partner wish to confirm as follows
their agreement with you (the "Representatives") and the several other
Underwriters on whose behalf you are acting, in connection with the several
purchases of the Units by the Underwriters.
-1-
1. Registration Statement and Prospectus. The Partnership has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-2 under the Act (Commission File No.
333-104265) (the "Registration Statement"), including a prospectus subject to
completion relating to the Units. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If it is contemplated, at
the time this Agreement is executed, that a registration statement or a
post-effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d)
under the Act before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement includes such registration
statement. The term "Prospectus" as used in this Agreement means the prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance on Rule
430A under the Act and such information is included in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the preliminary prospectus dated April 23, 2003, relating to the Common Units as
such preliminary prospectus shall have been amended from time to time prior to
the date of the Prospectus.
2. Agreements to Sell and Purchase. The Partnership hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Partnership herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Partnership, at a purchase price of $___ per Unit (the
"purchase price per Unit"), the number of Firm Units set forth opposite the name
of such Underwriter in Schedule I hereto (or such number of Firm Units increased
as set forth in Section 10 hereof).
The Partnership also agrees, subject to all the terms and conditions
set forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Partnership and the General
Partner herein contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right to purchase from the Partnership,
at the purchase price per Unit, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 7:00
-2-
p.m., New York City time, on the 30th day after the date of the Prospectus (or,
if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the American Stock Exchange is open for trading),
up to an aggregate of 142,500 Additional Units. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Units. Upon any
exercise of the over-allotment option, each Underwriter, severally and not
jointly, agrees to purchase from the Partnership the number of Additional Units
(subject to such adjustments as you may determine in order to avoid fractional
Units) which bears the same proportion to the number of Additional Units to be
purchased by the Underwriters as the number of Firm Units set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Units
increased as set forth in Section 10 hereof) bears to the aggregate number of
Firm Units.
3. Terms of Public Offering. The Partnership has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Units as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Units upon the terms set forth in the Prospectus.
4. Delivery of the Units and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Units shall be made at the offices of
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. located at Potomac Tower, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on
May ___, 2003 (the "Closing Date"). The place of closing for the Firm Units and
the Closing Date may be varied by agreement between you and the Partnership.
Delivery to the Underwriters of and payment for any Additional Units to
be purchased by the Underwriters shall be made at the aforementioned office at
such time on such date (the "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the Partnership of the Underwriters' determination
to purchase a number, specified in such notice, of Additional Units. The place
of closing for any Additional Units and the Option Closing Date for such Units
may be varied by agreement between you and the Partnership.
Certificates for the Firm Units and for any Additional Units to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 5:00 p.m., New York City time, on the third
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in Arlington, VA for
inspection and packaging not later than 11:30 a.m., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Units and any Additional Units
to be purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase price
therefor in immediately available funds.
-3-
5. Agreements of the Partnership and the General Partner. The
Partnership and the General Partner agree with the several Underwriters as
follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Units may
commence, the Partnership and the General Partner will endeavor to cause
the Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing when the Registration
Statement or such post-effective amendment has become effective.
(b) The Partnership will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) when any amendments to the
Registration Statement become effective; (ii) of any request by the
Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Units for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; (iv) of the receipt of any
comments from the Commission and (v) within the period of time referred to
in paragraph (f) below, of the happening of any event which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material
fact required by the Act to be stated therein or necessary in order to make
the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with
the Act or any other applicable law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Partnership and the General Partner will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Partnership will furnish to you, without charge, (i) two
▇▇▇▇▇ versions of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits to the Registration Statement, (ii) two manually signed
copies of the registration statement corresponding to the ▇▇▇▇▇ version
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits to the Registration Statement, and
(iii) such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, as
you or your counsel may reasonably request.
-4-
(d) The Partnership will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which
you or your counsel shall reasonably object in writing after being so
advised or (ii) so long as, in the opinion of counsel for the Underwriters,
a Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
without delivering a copy of such information, documents or reports to you,
as Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the
Partnership has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of the Prepricing
Prospectus. The Partnership consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by the several Underwriters
and by dealers, prior to the date of the Prospectus, of each Prepricing
Prospectus so furnished by the Partnership.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the
Partnership will expeditiously deliver to each Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. At any time after nine
months after the time of issuance of the Prospectus, upon request, but at
your expense, the Partnership will deliver as many copies of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act as you
may reasonably request, provided that a prospectus is required by the Act
to be delivered in connection with sales of Units by any Underwriter or
dealer. The Partnership consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the
Act and with the securities or Blue Sky laws of the jurisdictions in which
the Units are offered by the several Underwriters and by all dealers to
whom Units may be sold, both in connection with the offering and sale of
the Units and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If during such period of time any event shall occur
that in the judgment of the Partnership or in the reasonable opinion of
counsel for the Underwriters is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement
or amend the Prospectus to comply with the Act or any other law, the
Partnership will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
-5-
amendment thereto, and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof; provided that, if any such
event necessitating a supplement or amendment to the Prospectus occurs at
any time after nine months after the time of issuance of the Prospectus,
such supplement or amendment shall be prepared at your expense. In the
event that the Partnership and you, as Representatives of the several
Underwriters, agree that the Prospectus should be amended or supplemented,
the Partnership, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Partnership and the General Partner will cooperate with
you and with counsel for the Underwriters in connection with the
registration or qualification of the Units for offering and sale by the
several Underwriters and by dealers under the securities or Blue Sky laws
of such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in order to
effect such registration or qualification; provided that in no event shall
the Partnership or the General Partner be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Units, in any
jurisdiction where it is not now so subject.
(h) The Partnership will make generally available to its
unitholders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of the
Act.
(i) During the period of two years hereafter, the Partnership will
furnish to you (i) as soon as publicly available, a copy of each report of
the Partnership mailed to unitholders or filed with the Commission or the
principal national securities exchange or automated quotation system upon
which the Units may be listed, and (ii) from time to time such other
information concerning the Partnership as you may reasonably request.
(j) The Partnership will apply the net proceeds from the sale of
the Units and the Operating Partnership will apply all amounts contributed
to it by the Partnership from the sale of the Units in accordance with the
description set forth under the caption "Use of Proceeds" in the
Prospectus.
(k) If Rule 430A of the Act is employed, the Partnership will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
-6-
(l) Except as provided in this Agreement, the Partnership and the
General Partner will not (a) offer, sell, contract to sell or otherwise
dispose of any Common Units, any securities that are convertible into, or
exercisable or exchangeable for, or that represent the right to receive,
Common Units or any securities that are senior to or pari passu with Common
Units, or (b) grant any options or warrants to purchase Common Units or
Subordinated Units for a period of 180 days after the date of the
Prospectus without your prior written consent, except for the issuance of
Common Units by the Partnership described in clauses (C), (D), (E) and (F)
of the second sentence of Section 5.7(a) and in Section 5.7(c) of the
Partnership Agreement.
(m) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Partnership and its affiliates have not
taken, and will not take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Units to facilitate the sale or
resale of the Units.
(n) The Partnership shall fully comply in a timely manner with all
provisions of the Act and the Exchange Act, including the rules and
regulations thereunder, in order to permit the completion of the
distribution of the Units as contemplated hereby, and the registration of
the Units under the Exchange Act.
6. Representations and Warranties as to the Partnership. The
Partnership represents and warrants to each Underwriter that:
(a) Any Prepricing Prospectus, at the date of filing thereof with
the Commission, complied in all material respects with the requirements of the
Act and did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus. The Registration Statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act complied or will comply in all
material respects with the provisions of the Act and did not or will not at any
such times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Each of the statements made by the Partnership in such
documents within the coverage of Rule 175(b) of the rules and regulations under
the Act, including (but not limited to) any statements with respect to future
available cash or future cash distributions of the Partnership or
-7-
the anticipated ratio of taxable income to distributions was made or will be
made with a reasonable basis and in good faith. Notwithstanding the foregoing,
no representation or warranty is made as to statements in or omissions from the
Registration Statement, the Prospectus or any Prepricing Prospectus made in
reliance upon and in conformity with information furnished to the Partnership in
writing by or on behalf of any Underwriter through you expressly for use therein
(that information being limited to that described in Section 12 hereof).
(b) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (including the financial
statements included or incorporated therein by reference), except as set forth
in the Registration Statement and the Prospectus, (i) there has been no material
adverse change or any development involving a prospective material adverse
change, whether or not arising from transactions in the ordinary course of
business, in or affecting (A) the business, condition (financial or otherwise),
results of operations, partners' or members' equity, properties or prospects of
the Partnership and each subsidiary of the Partnership listed on Exhibit A
hereto (the "Subsidiaries"), taken as a whole; (B) the long-term debt or equity
interests of the Partnership or any of its Subsidiaries; or (C) any other
transaction contemplated by this Agreement, the Registration Statement or the
Prospectus (a "Material Adverse Change"); and (ii) no dividend or distribution
of any kind shall have been declared, paid or made by the Partnership or any of
its Subsidiaries on any class of its equity interests. Since the date of the
latest balance sheet presented in the Registration Statement and the Prospectus,
there has been no material increase in the long-term debt or short-term debt of
the Partnership and its Subsidiaries, and neither the Partnership nor the
Subsidiary has incurred or undertaken any other liabilities or obligations,
whether direct or indirect, liquidated or contingent, matured or unmatured, or
entered into any transactions which are material to the Partnership and the
Subsidiaries taken as a whole, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and the
Prospectus.
(c) The Partnership and its affiliates have not prior to the date
hereof directly or indirectly made any offer or sale of any securities which
could be "integrated" with the offer and the sale of the Units by the
Underwriters.
(d) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any security has any rights to require registration of
any security as part or on account of, or otherwise in connection with, the
offer and sale of the Units as contemplated hereby.
(e) The conditions for use of Form S-2, as set forth in the
General Instructions thereto, have been satisfied.
(f) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Act, the Exchange Act and the Rules and
-8-
Regulations, and, when read together with the other information in the
Prospectus, do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) The Partnership is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act and files reports with the Commission on
the ▇▇▇▇▇ System.
(h) The Partnership has no subsidiaries within the meaning of Rule
405 under the Securities Act other than the entities listed on Exhibit A
attached hereto.
(i) Except for the interest of the General Partner in the
Operating Partnership, all of the outstanding equity interests of each
Subsidiary of the Partnership is owned, directly or indirectly, by the
Partnership, free and clear of any security interest, claim, lien, limitation on
voting rights or encumbrance; and all such securities have been duly authorized,
validly issued, and are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights.
(j) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Units or prevents or suspends the use of the
Prospectus; no injunction, restraining order or order of any nature by a federal
or state court of competent jurisdiction has been issued that prevents the
issuance of the Units or prevents or suspends the sale of the Units in any
jurisdiction referred to in Section 4(e) hereof; and every request of any
securities authority or agency of any jurisdiction for additional information
has been complied with in all material respects.
(k) There is no alleged liability, or to the best knowledge of the
Partnership, potential liability (including, without limitation, alleged or
potential liability or investigatory costs, cleanup costs, governmental response
costs, natural resource damages, property damages, personal injuries or
penalties) of the Partnership or any of its Subsidiaries arising out of, based
on or resulting from (A) the presence or release into the environment of any
Hazardous Material (as defined) at any location, whether or not owned by the
Company or such subsidiary, as the case may be, or (B) any violation or alleged
violation of any federal, state or local law or regulation relating to the
protection of human health and safety or the environment, or regulating
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), which alleged or potential liability is required to be
disclosed in the Prospectus, other than as disclosed therein, or could
reasonably be expected to have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the General Partner, or Partnership and the Subsidiaries taken as
a whole ("Material Adverse Effect"). The term "Hazardous Material" means (i) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any "hazardous
-9-
waste" as defined by the Resource Conservation and Recovery Act, as amended,
(iii) any petroleum or petroleum product, (iv) any polychlorinated biphenyl, and
(v) any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of any other
law relating to protection of human health or the environment or imposing
liability or standards of conduct concerning any such chemical material, waste
or substance.
(l) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Partnership or any Subsidiary and any person that would give rise to a valid
claim against the Partnership or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus.
To the knowledge of the Partnership and the General Partner, there are no
arrangements, agreements, understandings, payments or issuance with respect to
the Partnership, the General Partner or any of their respective officers,
partners, employees, Subsidiaries or affiliates that may affect the
Underwriters' compensation as determined by the NASD.
(m) Each of the Partnership and its Subsidiaries has (A) good and
marketable title to all of the properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances and
restrictions (except for (i) taxes not yet payable, (ii) as described in the
Prospectus and the financial statements included or incorporated therein by
reference and (iii) such liens, charges, encumbrances and restrictions as do not
detract from the value thereof and do not materially interfere with the use
thereof taken as a whole as such properties and assets have been used in the
past and are proposed to be used in the future), (B) peaceful and undisturbed
possession under all material leases to which any of them is a party as lessee
and each of which lease is valid and binding and no default exists thereunder,
except for defaults that could not reasonably be expected to have a Material
Adverse Effect, (C) all material licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all federal, state and local authorities, all
self-regulatory authorities and all courts and other tribunals (each, an
"Authorization") necessary to engage in the business conducted by any of them in
the manner described in the Prospectus and (D) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
such Authorization. All such Authorizations are valid and in full force and
effect and each of the Partnership and its Subsidiaries is in compliance in all
material respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities having jurisdiction
with respect thereto and no Authorization contains any condition materially
burdensome to the Partnership and its Subsidiaries, taken as a whole. All
material leases to which the Partnership or any of its Subsidiaries is a party
are valid and binding and no default by the Partnership or such Subsidiary, as
the case may be, has occurred and is continuing thereunder and, to the best
knowledge of the General Partner and the Partnership, no material defaults by
the landlord are existing under any such lease, except those defaults that could
not reasonably be expected to have a Material Adverse Effect.
-10-
(n) Except as disclosed in the Prospectus, no relationship, direct
or indirect, exists between or among the Partnership or any of its Subsidiaries
on the one hand, and the officers, stockholders, customers or suppliers of the
Partnership, any of its Subsidiaries or the General Partner on the other hand,
which is required by the Act to be described in the Prospectus.
(o) Except as disclosed in the Prospectus, none of the Company or
any of its Subsidiaries is subject to rate or terms of service regulation under
federal or state law.
(p) Except as permitted under applicable law and the Rules and
Regulations, none of the General Partner, the Partnership or any of its
Subsidiaries, or any person acting on their behalf, has (A) taken, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Partnership or any of its Subsidiaries to facilitate the sale or resale of
the Units or (B) since the date of the Prepricing Prospectus (1) sold, bid for,
purchased or paid any person any compensation for soliciting purchases of the
Units or (2) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the General Partner, the Partnership
or any of its Subsidiaries.
(q) Each certificate signed by any officer of the General Partner
or the Partnership and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by the General
Partner or the Partnership, as the case may be, to the Underwriters as to the
matters covered thereby.
Each of the General Partner and the Partnership acknowledge
that the Underwriters, and for purposes of the opinions to be delivered to the
Underwriters pursuant to Sections 8(c), (d), (e) and (f) hereof, counsel for the
General Partner and the Partnership and counsel for the Underwriters will rely
upon the accuracy and truth of the foregoing representations, and hereby consent
to such reliance.
(r) The Partnership and each Subsidiary has been duly formed and
is validly existing and in good standing as a limited partnership or limited
liability company under the laws of its jurisdiction of organization, with full
power and authority to own or lease its properties and to conduct its business
as described in the Registration Statement and the Prospectus. The Partnership
and each Subsidiary is, duly registered or qualified and in good standing as a
foreign limited partnership or limited liability company for the transaction of
business under the laws of each jurisdiction in which the character of the
business conducted by it or the nature or location of the properties owned or
leased by it makes such registration or qualification necessary, except where
the failure to register or qualify would not (i) have a Material Adverse Effect
or (ii) subject the limited partners of the Partnership to any material
liability or disability.
-11-
(s) The General Partner has been duly formed and is a limited
liability company validly existing and in good standing under the laws of the
State of Delaware with full company power and authority to own or lease its
properties, to conduct its business and to act as general partner of the
Partnership and Atlas Pipeline Operating Partnership, L.P. (the "Operating
Partnership"), in each case in all material respects as described in the
Registration Statement and the Prospectus. The General Partner is duly
registered or qualified as a foreign limited liability company for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a Material Adverse Effect, or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(t) The General Partner is the sole general partner of the
Partnership with a general partner interest as described in the Prospectus; its
general partner interest was duly authorized and validly issued in accordance
with the Partnership Agreement; the General Partner owns all of the Incentive
Distribution Rights; such Incentive Distribution Rights were duly authorized and
validly issued in accordance with the Partnership Agreement; and, except for
liens securing any commercial bank or institutional lender to Atlas or any of
its Affiliates, (the "Permitted Encumbrances") the General Partner owns such
general partner interest and Incentive Distribution Rights free and clear of all
liens, encumbrances, security interests, equities, charges or claims.
(u) The General Partner owns limited partner interests in the
Partnership represented by 1,641,026 Subordinated Units; such Subordinated Units
and the limited partner interests represented thereby were duly authorized and
validly issued in accordance with the Partnership Agreement, and are fully paid
and nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and, except for Permitted Encumbrances the
General Partner holds its limited partner interests represented by its
Subordinated Units free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(v) The outstanding Common Units are set forth in the Prospectus.
All outstanding Common Units representing limited partnership interests in the
Partnership were duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement - Limited Liability").
(w) At the Closing Date, there will be issued to the Underwriters
the Firm Units (assuming no purchase by the Underwriters of Additional Units);
at the Closing Date or the Option Closing Date, as the case may be, the Firm
-12-
Units or the Additional Units, as the case may be, and the limited partner
interests represented thereby will be duly authorized by the Partnership
Agreement and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by matters described in the
Prospectus under the caption "The Partnership Agreement--Limited Liability").
(x) At the Closing Date and the Option Closing Date, the General
Partner and the Partnership will own a general partner and limited partner
interest, respectively, in the Operating Partnership as described in the
Prospectus; such interests have been duly authorized and validly issued in
accordance with the Partnership Agreement of the Operating Partnership (as the
same may be amended and restated at or prior to the date hereof, the "Operating
Partnership Agreement" and together with the Partnership Agreement, the
"Partnership Agreements") and are fully paid (to the extent required under the
Operating Partnership Agreement) and the limited partnership interest will be
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the General Partner and the Partnership owns
such interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(y) At the Closing Date and the Option Closing Date, all of the
member interests in the General Partner are owned, directly or indirectly, by
Atlas America, Inc. ("Atlas") free and clear of all liens, encumbrances,
security interest, equities, charges or claims.
(z) Except for (i) the General Partner's general partner interest
in the Partnership and the Operating Partnership, (ii) the General Partner's
limited partner interest in the Partnership, (iii) the Partnership's limited
partner interest in the Operating Partnership, and (iv) the Operating
Partnership's member interests in the Operating LLCs, none of the General
Partner, the Partnership or its Subsidiaries own, directly or indirectly, any
equity or long term debt securities of any person, or have any membership,
participation or other interest in any firm, partnership, limited liability
company, joint venture, association or other entity.
(aa) Except as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any limited partner interests in the
Partnership pursuant to the Partnership Agreement or any agreement or other
instrument to which the Partnership is a party or by which it may be bound.
Except as described in the Prospectus, neither the filing of the Registration
Statement nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights for or relating to the registration of any
Units or other securities of the Partnership under the Act. Except as described
in the Prospectus, there are no outstanding options or warrants to purchase any
Common Units or Subordinated Units or other partnership interests or
distribution rights in the Partnership or its Subsidiaries. The Units, when
-13-
issued and delivered against payment therefor as provided herein will conform in
all material respects to the description thereof contained in the Prospectus.
The Partnership has all requisite power and authority to issue, sell and deliver
the Units, in accordance with and upon the terms and conditions set forth in
this Agreement, the Partnership Agreement and the Registration Statement and
Prospectus. At the Closing Date and the Option Closing Date, all action required
to be taken by the Partnership or the General Partner or any of their respective
partners or members for the authorization, issuance, sale and delivery of the
Units and the consummation of the transactions (including the Transactions)
contemplated by this Agreement shall have been validly taken.
(bb) The execution and delivery of, and the performance by the
General Partner and the Partnership of their respective obligations under, this
Agreement have been duly and validly authorized by each of them, and this
Agreement has been duly executed and delivered by each of them, and constitutes
the valid and legally binding agreement of each of them, enforceable against
each of them in accordance with its terms.
(cc) The Partnership Agreement and the Operating Partnership
Agreement have been duly authorized, executed and delivered by each of the
General Partner and the remaining parties thereto, and are a valid and legally
binding agreements, enforceable in accordance with their respective terms;
provided that, with respect to each agreement described in this Section 6(cc),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and provided, further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy.
(dd) None of the offering, issuance and sale by the Partnership of
the Units, the execution, delivery and performance of this Agreement by the
General Partner or the Partnership, or the consummation of the transactions
contemplated hereby and thereby (i) conflicts or will conflict with or
constitutes or will constitute a violation of the agreement of limited
partnership or other organizational documents of the Partnership, any Subsidiary
or the General Partner, (ii) conflicts or will conflict with or constitutes or
will constitute a breach or violation of, or a default under (or an event which,
with notice or lapse of time or both, would constitute such an event), any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Partnership, any Subsidiary or the General Partner is a
party or by which any of them or any of their respective properties may be
bound, (iii) violates or will violate any statute, law or regulation or any
order, judgment, decree or injunction of any court or governmental agency or
body directed to the Partnership, any Subsidiary or the General Partner or any
of their properties in a proceeding to which any of them or their property is a
party or (iv) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Partnership, any
Subsidiary or the General Partner, in the case of clauses (ii), (iii) or (iv),
which conflicts, breaches, violations or defaults would have a Material Adverse
Effect.
-14-
(ee) No permit, consent, approval, certificate, authorization or
order of any person, court, governmental agency or body is required in
connection with the execution, delivery and performance of, or the consummation
by any of the Partnership and the General Partner of the transactions
contemplated by this Agreement except (i) such permits, consents, approvals and
similar authorizations required under the Act, the Exchange Act and state
securities or "Blue Sky" laws, (ii) such permits, consents, approvals,
certificates and similar authorizations which have been, or prior to the Closing
Date will be, obtained and (iii) such permits, consents, approvals, certificates
and similar authorizations which, if not obtained, would not, individually or in
the aggregate, have a Material Adverse Effect.
(ff) None of the Partnership, the General Partner or any
Subsidiary is in (i) violation of its agreement of limited partnership, or other
organizational documents, or of any law, statute, ordinance, administrative or
governmental rule or regulation applicable to it or of any decree of any court
or governmental agency or body having jurisdiction over it or (ii) breach,
default (or an event which, with notice or lapse of time or both, would
constitute such an event) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which it is a party or by which it or any of its properties may be
bound, which breach, default or violation would, if continued, have a Material
Adverse Effect.
(gg) The accountants, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified or
shall certify the audited financial statements included or incorporated by
reference in the Registration Statement, any Prepricing Prospectus and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act and the applicable published rules and
regulations thereunder.
(hh) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Registration
Statement, the Prepricing Prospectus and the Prospectus (and any amendment or
supplement thereto) present fairly in all material respects the consolidated
financial position, results of operations and cash flows of the Partnership and
its Subsidiaries at the respective dates or for the respective periods and have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except to the extent
disclosed therein. The selected historical information set forth in the
Registration Statement, the Prepricing Prospectus and the Prospectus (and any
amendment or supplement thereto) under the captions "Summary Financial and
Operating Data" and "Selected Financial and Operating Data" is accurately
presented in all material respects and prepared on a basis consistent with the
audited and unaudited historical financial statements from which it has been
derived. There are no pro forma financial statements required to be included or
-15-
incorporated by reference in the Registration Statement, the Prepricing
Prospectus and the Prospectus (and any amendment or supplement thereto) in
accordance with the applicable accounting requirements of Article 11 of
Regulation S-X.
(ii) There are no legal or governmental proceedings pending or, to
the knowledge of the Partnership, threatened, against the General Partner, the
Partnership or any Subsidiary, or to which the General Partner, the Partnership
or any Subsidiary is a party, or to which any of their respective properties is
subject, that are required to be described in the Registration Statement or the
Prospectus but are not described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the Act.
(jj) The Partnership has not distributed and, prior to the later
to occur of (i) the Closing Date and (ii) completion of the distribution of the
Units, will not distribute, any prospectus (as defined under the Act) in
connection with the offering and sale of the Units other than the Registration
Statement, any Prepricing Prospectus, the Prospectus or other materials, if any,
permitted by the Act, including Rule 134 of the general rules and regulations
thereunder.
(kk) The Partnership and its Subsidiaries have such consents,
easements, rights-of-way or licenses from any person ("rights-of-way") as are
necessary to the conduct of the Partnership's business in the manner described
in the Prospectus, subject to such qualifications as may be set forth in the
Prospectus and except for such rights-of-way which, if not obtained, would not
have, individually or in the aggregate, a Material Adverse Effect; each of the
Partnership and its Subsidiaries has fulfilled and performed all its material
obligations with respect to such rights-of-way and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any impairment of the rights of the holder of any such
rights-of-way, except for such revocations, terminations and impairments that
would not have a Material Adverse Effect, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, none of such rights-of-way contains any restriction that is
materially burdensome to the Partnership and its Subsidiaries, taken as a whole.
(ll) The Partnership and each Subsidiary (i) makes and keeps
books, records and accounts, which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets and (ii) maintains systems
of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
-16-
(mm) The Partnership and each Subsidiary has filed (or has
obtained extensions with respect to) all material federal, state and foreign,
income and other tax returns required to be filed through the date hereof, which
returns are complete and correct in all material respects, and has timely paid
all taxes shown to be due pursuant to such returns, other than those (i) which,
if not paid, would not have a Material Adverse Effect, or (ii) which are being
contested in good faith.
(nn) The Partnership and its Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights owned by them or necessary for the conduct of their respective
businesses, and the Partnership is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Partnership and its
Subsidiaries with respect to the foregoing.
(oo) None of the General Partner, the Partnership or its
Subsidiaries is (i) an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or (ii) a "public utility company," "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" thereof, under the
Public Utility Holding Company Act of 1935, as amended.
(pp) None of the Partnership or its Subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity whether or not covered by insurance, or from
any labor dispute or court or governmental action, investigation, order or
decree, otherwise than as set forth or contemplated in the Prospectus, except
for any such loss or interference that would not have a Material Adverse Effect.
(qq) Except as described in or contemplated by the Prospectus, no
material labor dispute with the employees of Atlas or its subsidiaries exists
or, to the knowledge of Atlas, is imminent.
(rr) The Partnership and its Subsidiaries maintain insurance
covering their properties, operations, personnel and businesses against such
losses and risks as are reasonably adequate to protect them and their businesses
in a manner consistent with other businesses similarly situated. Neither the
Partnership nor any Subsidiary has received notice from any insurer or agent of
such insurer that substantial capital improvements or other expenditures will
have to be made with respect to any of their assets in order to continue such
insurance, and all such insurance is outstanding and duly in force on the date
hereof and will be outstanding and duly in force on the Closing Date.
-17-
(ss) Except as described in the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to the knowledge
of the General Partner or the Partnership threatened, to which any of the
General Partner, the Partnership or any Subsidiary is or may be a party or to
which the business or property of any of them is or may be subject, (ii) no
statute, rule, regulation or order that has been enacted, adopted or issued by
any governmental agency or that has been proposed by any governmental body and
(iii) no injunction, restraining order or order of any nature issued by a
federal or state court or foreign court of competent jurisdiction to which any
of the Partnership or its Subsidiaries is or may be subject, that, in the case
of clauses (i), (ii) and (iii) above, is reasonably expected to singly or in the
aggregate have a Material Adverse Effect.
(tt) The Units have been approved for listing on the American
Stock Exchange ("AMEX"), subject only to official notice of issuance.
(uu) The General Partner and the Partnership have established and
maintain disclosure controls and procedures (as such term is defined in Rule
13a-14 and 15d-14 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the
General Partner or the Partnership; including its consolidated subsidiaries, is
made known to the General Partner's and the Partnership's chief executive
officer and chief financial officer by others within those entities, and such
disclosure controls and procedures are effective to perform the functions for
which they were established; the Partnership's auditors and the audit committee
of the managing board of the General Partner have been advised of: (i) any
significant deficiencies in the design or operation of the internal controls
which could adversely affect the General Partner's or the Partnership's ability
to record, process, summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other employees who have a
role in the General Partner's or the Partnership's internal controls; any
material weaknesses in internal controls have been identified for the
Partnership's auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(vv) The Partnership has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in the form of
a personal loan made, directly or indirectly, by the General Partner, the
Partnership or any Subsidiary to any director of the General Partner or
executive General Partner; and since July 30, 2002, neither the General Partner
nor the Partnership has directly or indirectly, including through any
subsidiary: (i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any member of the
managing board of the General Partner or executive officer of the Partnership,
-18-
or to or for any family member or affiliate of any member of the managing board
or executive officer of the General Partner; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan to
any member of the managing board or executive officer of the General Partner, or
any family member or affiliate of any member of the managing board or executive
officer, which loan was outstanding on July 30, 2002.
(ww) Except for Anthem Securities, Inc., a wholly-owned subsidiary
of Resource America, Inc., and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇'▇ ownership of and related
interests in ▇▇▇▇▇ Bros. & Company, to the Partnership's and the General
Partner's knowledge, there are no affiliations or associations between any
member of the NASD and any of the General Partner's, the Partnership's or any
Subsidiary's officers, managing board members or 5% or greater securityholders,
except as set forth in the Registration Statement and the Prospectus.
(xx) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Partnership, from making any other
distribution on such Subsidiary's equity, from repaying to the Partnership any
loans or advances to such Subsidiary from the Partnership or from transferring
any of such Subsidiary's property or assets to the Partnership or any other
subsidiary of the Partnership, except as described in or contemplated by the
Registration statement or the Prospectus.
(yy) Except as disclosed in the Registration Statement and the
Prospectus, none of the General Partner, the Partnership or the Subsidiaries (i)
has any material lending or other relationship with any bank or lending
affiliate of the Underwriters and (ii) intends to use any of the proceeds from
the sale of the Units hereunder to repay any outstanding debt owed to any
affiliate of the Underwriters.
7. Indemnification and Contribution.
(a) The Partnership agrees to indemnify and hold harmless each
Underwriter and its affiliates (within the meaning of Rule 405 of the Act) and
their respective directors, officers, employees, agents and controlling persons
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
(each an "Underwriter Indemnified Party") from and against any and all losses,
claims, damages, liabilities and expenses (including but not limited to
reasonable attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, whether or not such litigation or claim is
initiated or brought by the Partnership, any Subsidiary, the General Partner or
any of their affiliates, and any and all amounts paid in settlement of any claim
or litigation) which, jointly or severally, any such Underwriter Indemnified
Party may incur under any applicable federal or state law, or otherwise, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prepricing Prospectus or in the Registration
-19-
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except to the extent but only to the extent that such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information furnished in writing to the Partnership or the General
Partner by or on behalf of any Underwriter through you expressly for use in
connection therewith (it being understood that such information is limited to
the information described in Section 12 hereof); provided, further, that the
indemnification contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter Indemnified Party
on account of any such loss, claim, damage, liability or expense arising from
the sale of the Units by such Underwriter Indemnified Party to any person if a
copy of the Prospectus shall not have been delivered or sent to such person
within the time required by the Act and the regulations thereunder, and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Partnership has delivered the Prospectus to the
several Underwriters in requisite quantity and on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Partnership may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter Indemnified Party in respect of which indemnity may be sought
against the Partnership, such Underwriter Indemnified Party shall promptly
notify the Partnership in writing, and the Partnership may elect to assume the
defense thereof, including the employment of counsel (which counsel shall be
reasonably acceptable to such Underwriter Indemnified Party) and payment of all
reasonable fees and expenses. The failure or delay by an Underwriter Indemnified
Party to notify the indemnifying party shall not relieve it from liability which
it may have to an Underwriter Indemnified Party unless such failure or delay
materially prejudices the indemnifying party's ability to defend such action,
suit or proceeding on behalf of such Underwriter Indemnified Party. Such
Underwriter Indemnified Party shall have the right to employ separate counsel in
any such action, suit or proceeding and to participate in (but not control) the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter Indemnified Party unless (i) the Partnership has
agreed in writing to pay such fees and expenses, (ii) the Partnership has failed
to assume the defense or employ counsel reasonably satisfactory to such
Underwriter Indemnified Party or (iii) the named parties to any such action,
suit or proceeding (including any impleaded parties) include both such
Underwriter Indemnified Party and the Partnership, any Subsidiary, the General
-20-
Partner or any of their affiliates, and such Underwriter Indemnified Party shall
have been advised by its counsel that representation of such Underwriter
Indemnified Party and the Partnership, any Subsidiary, the General Partner or
any of their affiliates by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Partnership shall not have the right
to assume the defense of such action, suit or proceeding on behalf of such
Underwriter Indemnified Party) or that there may be legal defenses available to
such Underwriter Indemnified Party that are different from or in addition to
those available to the Partnership, Subsidiary, General Partner or affiliate. It
is understood, however, that the Partnership shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriter Indemnified Parties not having
actual or potential differing interests with you or among themselves, which firm
shall be designated in writing by you, and that all such fees and expenses shall
be reimbursed as they are incurred. The Partnership shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Partnership shall indemnify and hold
harmless any Underwriter Indemnified Party, to the extent provided in the
preceding paragraph, from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Partnership, the General Partner, their
respective officers who sign the Registration Statement, and any person who
controls the Partnership within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Partnership to each Underwriter, but only with respect to information furnished
in writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto (it being understood that such information is
limited to the information described in Section 12 hereof). If any action, suit
or proceeding shall be brought against the Partnership, the General Partner, any
of such officers or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have the
rights and duties given to the Partnership by paragraph (b) above (except that
if the Partnership shall have assumed the defense thereof such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in (but not control) the defense thereof, but the fees and expenses
of such counsel shall be at such Underwriter's expense), and the Partnership,
the General Partner, any of such officers and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
-21-
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraph (a) or (c) hereof in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Partnership on the one hand and the Underwriters on the other hand from the
offering of the Units, or (ii) if, but only if, the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Partnership on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the Offering
(before deducting expenses) received by the Partnership bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Partnership on the one hand, and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Partnership or
any of its affiliates of on the one hand, or by the Underwriters on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Partnership and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Units underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
-22-
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Firm Units set forth opposite their
names in Schedule I hereto (or such numbers of Firm Units increased as set forth
in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Partnership set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Partnership, the General Partner, or any of their
respective directors or officers or any person controlling the Partnership, (ii)
acceptance of any Units and payment therefor in accordance with the terms of
this Agreement, and (iii) any termination of this Agreement. A successor to any
Underwriter Indemnified Party, or to the Partnership, the General Partner, or
any of their respective directors or officers or any person controlling the
Partnership shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Units hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Units may commence,
the Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall be or have
been timely made, as the case may be; no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Partnership, the
General Partner or any Underwriter, threatened by the Commission and any request
of the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to your
reasonable satisfaction.
-23-
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of Atlas
America, the General Partner, the Partnership or the Subsidiaries, not
contemplated by the Prospectus, which in your opinion, as Representatives of the
several Underwriters, would materially adversely affect the market for the
Units, or (ii) any event or development relating to or involving Atlas America,
the General Partner, the Partnership or the Subsidiaries, or any executive
officer or director of any of such entities which makes any statement made in
the Prospectus untrue or which, in the opinion of the Partnership and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Units.
(c) You shall have received on the Closing Date, an opinion of
Ledgewood Law Firm, P.C., counsel for the Partnership, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Partnerships have each been duly formed and are
validly existing and in good standing as limited partnerships under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware LP
Act") with all necessary power and authority to own or lease their
properties, and conduct their business, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(ii) The Partnerships and the General Partner are duly
registered or qualified as a foreign limited partnerships or foreign
limited liability companies, as applicable, for the transaction of
business under the laws of the States of New York, Pennsylvania and
Ohio; and, to such counsel's knowledge, such jurisdictions are the only
jurisdictions in which the character of the business conducted by the
Partnerships or the nature or location of the properties owned or
leased by them make such registration or qualification necessary
(except where the failure to so register or so qualify would not (A)
have a Material Adverse Effect, or (B) subject the limited partners of
the Partnerships to any material liability or disability).
(iii) The General Partner has been duly formed and is a
limited liability company validly existing and in good standing under
the Delaware Limited Liability Company Act (the "Delaware LLC Act"),
with all necessary power and authority to own or lease its properties,
conduct its business and act as general partner of the Partnerships in
each case in all material respects as described in the Registration
Statement and the Prospectus.
-24-
(iv) Each of Atlas Pipeline New York LLC, Atlas Pipeline
Pennsylvania LLC and Atlas Pipeline Ohio LLC (collectively, the
"Operating LLCs") has been duly formed and is a limited liability
company validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, with all necessary company power and
authority to own or lease its properties and conduct its business, in
each case in all material respects as described in the Registration
Statement and the Prospectus.
(v) Each of the Operating LLCs is duly registered or qualified
as a foreign limited liability company for the transaction of business
under the laws of each jurisdiction in which the character of the
business conducted by such entity or the nature or location of the
properties owned or leased by it make such registration or
qualification necessary (except where the failure to so register or so
qualify would not (A) have a Material Adverse Effect, or (B) subject
the limited partners of the Partnership to any material liability or
disability).
(vi) The General Partner is the sole general partner of the
Partnership, with a 1.0101% general partner interest in the
Partnership; such general partner interest has been duly authorized and
validly issued in accordance with the Partnership Agreement; the
General Partner owns all of the Incentive Distribution Rights; such
Incentive Distribution Rights have been duly authorized and validly
issued in accordance with the Partnership Agreement and are fully paid;
and, except for the Permitted Encumbrances, the General Partner owns
such general partner interest and Incentive Distribution Rights free
and clear of all liens, encumbrances, security interests, charges or
claims (A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner as
debtor is on file in the office of the Secretary of State of the State
of Delaware (which opinion may be based on a lien search of the records
of such office as of a recent date) or (B) otherwise known to such
counsel, without independent investigation, other than those created by
or arising under the Delaware LLC Act or the Delaware LP Act, as
appropriate.
(vii) The 1,641,026 Subordinated Units held by the General
Partner pursuant to the Partnership Agreement and the limited partner
interests represented thereby have been duly authorized, validly issued
in accordance with the Partnership Agreement and fully paid (to the
extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by matters described
in the Prospectus under "The Partnership Agreement--Limited
Liability"); except for the Permitted Encumbrances, the General Partner
owns such Subordinated Units, free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware, naming any such owner as debtor is on file in the
office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
-25-
(viii) Immediately prior to the issuance and sale of the Units
to be issued and sold to the Underwriters pursuant to this Agreement,
there are 1,621,159 Common Units and 1,641,026 Subordinated Units,
representing limited partner interests in the Partnership; such Units
are the only limited partner interests in the Partnership issued and
outstanding. All of such Units and the limited partner interests
represented thereof have been duly authorized by the Partnership
Agreement, validly issued, fully paid and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement - Limited Liability"); the
Common Units and Subordinated Units set forth in this clause and the
general partner interest and Incentive Distribution Rights held by the
General Partner constitute all of the outstanding partnership interests
or rights to distributions from the Partnership.
(ix) The 1,092,500 Units to be issued and sold to the
Underwriters by the Partnership pursuant to this Agreement and the
limited partner interests represented thereby have been duly authorized
by the Partnership Agreement and, when issued and delivered against
payment therefor as provided in this Agreement, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); the Units will be the only limited
partner interests of the Partnership issued and outstanding at the
Closing Date.
(x) The General Partner owns a 1.0101% general partner
interest in the Operating Partnership and the Partnership owns a
98.9899% limited partner interest in the Operating Partnership; such
interests have been duly authorized and validly issued in accordance
with the Operating Partnership Agreement, fully paid (to the extent
required under the Operating Partnership Agreement) and the limited
partnership interest is nonassessable (except as such nonassessability
may be affected by matters described in the Prospectus under the
caption "The Partnership Agreement--Limited Liability"); and, except
for the Permitted Encumbrances, the General Partner and the Partnership
will own such interests free and clear of all liens, encumbrances,
security interests, charges or claims (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming any such owner as debtor is on file in the office of
the Secretary of State of the State of Delaware or (B) otherwise known
to such counsel, without independent investigation, other than those
created by or arising under the Delaware LLC Act or the Delaware LP
Act, as applicable.
(xi) Except as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any limited partner
interests in the Partnership or the Operating Partnership pursuant to
-26-
the Partnership Agreement, the Operating Partnership Agreement or any
other agreement or instrument known to such counsel to which the
Partnership or the Operating Partnership is a party or by which either
of them may be bound. To such counsel's knowledge, except as described
in the Prospectus, neither the filing of the Registration Statement nor
the offering or sale of the Units as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any
Units or other securities of the Partnership or the Operating
Partnership. To such counsel's knowledge, except as described in the
Prospectus, there are no outstanding options or warrants to purchase
any Common Units or Subordinated Units or other partnership interests
in the Partnership or the Operating Partnership. The Partnership has
all requisite power and authority to issue, sell and deliver the Units,
in accordance with and upon the terms and conditions set forth in this
Agreement, the Partnership Agreement and the Registration Statement and
Prospectus.
(xii) The unitholders will not be liable under the laws of the
State of Delaware for the liabilities of the Partnership or the
Operating Partnership, except as provided under Sections 17-303 and
17-607 under the Delaware LP Act or in the Partnership Agreement.
(xiii) This Agreement has been duly authorized and validly
executed and delivered by the General Partner and the Partnership and
constitutes a valid and binding obligation of each of such parties,
enforceable against each such party in accordance with its terms,
subject to (A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws from time to time in effect
affecting creditors' rights and remedies generally and general
principles of equity (regardless of whether such principles are
considered in a proceeding at law or in equity) and (B) public policy
and applicable law with respect to the indemnity, contribution and
exoneration provisions contained herein.
(xiv) To the knowledge of such counsel, none of the General
Partner, the Partnership or the Subsidiaries is in (A) breach or
violation of the provisions of its limited liability company agreement,
agreement of limited partnership, or other organizational documents or
(B) default (and no event has occurred which, with notice or lapse of
time or both, would constitute such a default) or violation in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which it is a party
or by which it or any of its properties may be bound, which breach,
default or violation would, if continued, have a Material Adverse
Effect.
(xv) To the knowledge of such counsel, each of the General
Partner, the Partnership and the Subsidiaries has such permits,
consents, licenses, franchises and authorizations ("permits") of
governmental or regulatory authorities as are necessary to own or lease
its properties and to conduct its business in the manner described in
-27-
the Prospectus, subject to such qualifications as may be set forth in
the Prospectus, and except for such permits which, if not obtained
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and, to the knowledge of such
counsel, none of the General Partner, the Partnership or the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such permits which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse
Effect.
(xvi) None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of
this Agreement by the General Partner of the Partnership, or the
consummation of the transactions contemplated hereby (A) constitutes or
will constitute a violation of the Partnership Agreements or the
limited liability company agreements or other organizational documents
of any of the General Partner, the Partnership or the Subsidiaries (B)
constitutes or will constitute a breach or violation of, or a default
under (or an event which, with notice or lapse of time or both, would
constitute such an event), any bond, debenture, note or any other
evidence of indebtedness, any indenture or any other material agreement
or instrument known to such counsel to which the General Partner, the
Partnership or any Subsidiary is a party or by which any one of them
may be bound, (C) results or will result in any violation of the
Delaware LP Act, the Delaware LLC Act, the laws of the Commonwealth of
Pennsylvania or federal law that, in such counsel's experience, are
normally applicable to transactions of the type contemplated by the
foregoing, as in effect on the date hereof (other than state and
foreign securities or blue sky laws and the rules and regulations of
the National Association of Securities Dealers, Inc., as to which such
counsel may express no opinion, or federal securities laws, as to which
the opinion expressed in this subparagraph (xxi) may be limited to
nothing having come to such counsel's attention that leads it to
believe that such a violation has or will occur), or (D) results or
will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the General Partner, the
Partnership or any Subsidiary which in the case of clauses (B), (C) or
(D) would reasonably be expected to have a Material Adverse Effect.
(xvii) No permit, consent, approval, certificate,
authorization or order of any federal or state court, governmental
agency or body is required in connection with the execution and
delivery of, or the consummation by the General Partner or the
Partnership of the transactions contemplated by this Agreement, except
(A) such permits, consents, approvals, certificates and similar
authorizations required under the Act and the Exchange Act, (B) such
permits consents, approvals, certificates and similar authorizations
required under state securities or "Blue Sky" laws, as to which such
counsel need not express any opinion and (C) as described in the
Prospectus.
-28-
(xviii) The statements in the Registration Statement and
Prospectus under the captions "Cash Distribution Policy,"
"Business-Omnibus Agreement"; "Business-Natural Gas Gathering
Agreements"; "Business-Credit Facility"; "Business--Regulation,"
"Business--Environmental and Safety Regulation," "Conflicts of Interest
and Fiduciary Responsibilities," and "Our Partnership Agreement,"
insofar as they constitute descriptions of agreements or refer to
statements of law or legal conclusions, are accurate and complete in
all material respects, and the Units, the Common Units, the
Subordinated Units and Incentive Distribution Rights conform in all
material respects to the descriptions thereof contained in the
Registration Statement and Prospectus under the captions "Prospectus
Summary--The Offering," "Cash Distribution Policy,"" and "Our
Partnership Agreement".
(xix) The Registration Statement was declared effective under
the Act on May ___, 2003; to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within the time
period required by such Rule.
(xx) The Registration Statement and the Prospectus (other than
(i) the financial statements included therein, including the notes and
schedules thereto and the auditors' reports thereon and (ii) the other
historical, pro forma and projected financial information and the
statistical and accounting information included therein, as to which
such counsel need not comment) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
promulgated thereunder.
(xxi) To the knowledge of such counsel, (A) there is no legal
or governmental proceeding pending or threatened to which any of the
General Partner, the Partnership, or the Subsidiaries is a party or to
which any of their respective properties is subject that is required to
be disclosed in the Prospectus and is not so disclosed and (B) there
are no agreements, contracts or other documents to which any of the
General Partner, the Partnership or the Subsidiaries is a party that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(xxii) None of the General Partner, the Partnership or the
Subsidiaries is an "investment company" or a company "controlled by" an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(xxiii) Upon delivery to the Underwriters of certificates
evidencing the Units issued in the name of the Underwriters and payment
by the Underwriters of the purchase price for the Units, the
Underwriters will acquire the Units free of any adverse claim (as such
term is defined in Section 8-302 of the New York Uniform Commercial
Code), assuming that the Underwriters are acting in good faith and
without notice of any adverse claim.
-29-
(xxiv) The Units have been approved for listing on the AMEX,
subject only to official notice of issuance.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the General Partner and
the Partnership and the independent public accountants of the Partnership and
your representatives, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed, and although such counsel has
not independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus (except to the
extent specified in the foregoing opinion), no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement
(other than (i) the financial statements and statistical data included therein,
including the notes and schedules thereto and the auditors' reports thereon and
(ii) the other historical, pro forma and projected financial information and the
statistical and accounting information included therein, as to which such
counsel need not comment), as of its effective date contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus (other than (i) the financial statements and statistical
data included therein, including the notes and schedules thereto and the
auditors' reports thereon, and (ii) the other historical, pro forma and
projected financial information and the statistical and accounting information
included therein, as to which such counsel need not comment), as of its issue
date and the Closing Date contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the General
Partner, the Partnership and the Subsidiaries, and upon information obtained
from public officials, (B) assume that all documents submitted to them as
originals are authentic, that all copies submitted to them conform to the
originals thereof, and that the signatures on all documents examined by them are
genuine, (C) state that their opinion is limited to federal laws, the Delaware
LP Act, the Delaware LLC Act, the laws of the Commonwealth of Pennsylvania [and,
with respect to the descriptions in the Prospectus under the captions
"Business-Regulation" and Business-Environmental and Safety Regulation,
applicable laws of the State of New York and the State of Ohio], (D) state that
they express no opinion with respect to the title of any of the General Partner,
the Partnership and the Subsidiaries to any of their respective real or personal
property and (E) state that they express no opinion with respect to state or
local taxes or tax statutes to which any of the limited partners of the
Partnership or any of the General Partner, the Partnership and the Subsidiaries
may be subject.
-30-
(d) [Intentionally omitted]
(e) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to the issuance and sale of the Units, the
Registration Statement and the Prospectus (together with any supplement or
amendment thereto) and other related matters as the Representatives may
reasonably require.
(f) You shall have received on the Closing Date a letter from
Ledgewood Law Firm, P.C. confirming the opinion that is filed as Exhibit 8.1 to
the Registration Statement and stating that the Underwriters may rely upon such
opinion as if it were addressed to them.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(h) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or taken or, to the knowledge of the Partnership and the General
Partner, shall be threatened by the Commission at or prior to the Closing Date;
(ii) there shall not have been any change in the partners' capital or members'
equity of the Partnership, the Operating Partnership or the General Partner, as
the case may be, nor any material increase in the short-term or the long-term
debt of the Partnership, the Operating Partnership or the General Partner (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), any material adverse change in or affecting the condition (financial
or other), business, prospects, operations, properties, net worth or results of
operations of Atlas, the General Partner, the Partnership or the Subsidiaries
taken as a whole which makes it, in your judgment, impracticable or inadvisable
to proceed with the public offering of the Units as contemplated by the
Prospectus; (iv) the General Partner, the Partnership and the Subsidiaries shall
not have any liabilities or obligations, direct or contingent (whether or not in
the ordinary course of business), that are material taken as a whole, other than
those reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (v) all the representations and warranties
of the Partnership contained in this Agreement shall be true and correct on and
as of the date hereof and on and as of the Closing Date as if made on and as of
the Closing Date.
(i) The General Partner and the Partnership shall not have failed
at or prior to the Closing Date to have performed or complied in all material
respects with any of their agreements herein contained and required to be
performed or complied with by them hereunder at or prior to the Closing Date.
-31-
(j) The AMEX shall have approved the Units for inclusion, subject
only to official notice of issuance and evidence of satisfactory distribution.
(k) The General Partner and the Partnership shall have furnished
or caused to be furnished to you such further certificates and documents as you
shall have reasonably requested.
(l) There shall have been furnished to you at the Closing Date a
certificate reasonably satisfactory to you, signed on behalf of the General
Partner and the Partnership by the General Partner by the President or the
Executive Vice President and the Chief Financial Officer thereof to the effect
that: (A) the representations and warranties of the General Partner and the
Partnership, contained in this Agreement are true and correct at and as of the
Closing Date as though made at and as of the Closing Date; (B) each of the
General Partner and the Partnership, has in all material respects performed all
obligations required to be performed by it pursuant to the terms of this
Agreement at or prior to the Closing Date; (C) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or taken or, to the knowledge of the
General Partner ad the Partnership, threatened by the Commission, and all
requests for additional information on the part of the Commission have been
complied with or otherwise satisfied; (D) the Common Units have been duly
approved for listing, subject to official notice of issuance, on the AMEX; and
(E) no event contemplated by subsection (h) of this Section 8 in respect of the
Atlas Parties shall have occurred.
(m) On or prior to the date hereof, the General Partner shall have
furnished to you a letter substantially in the form of Exhibit B hereto.
(n) On or prior to the date hereof, the General Partner and the
Partnership shall have delivered to you a certificate demonstrating compliance
with Section 5.7(b) of the Partnership Agreement with respect to the use of
proceeds from the Offering.
(o) On the Closing Date and the Option Closing Date, as
applicable, the General Partner shall have made capital contributions in
immediately available funds to the Partnerships aggregating two percent of the
proceeds to the Company of the sale of Common Units purchased by the
Underwriters on such dates.
All such opinions, certificates, letters and other documents referred
to in this Section 8 will be in compliance with the provisions hereof only if
they are reasonably satisfactory in form and substance to you and your counsel.
The Partnership shall furnish to you conformed copies of such opinions,
certificates, letters and other documents in such number as you shall reasonably
request.
-32-
The several obligations of the Underwriters to purchase Additional
Units hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (f), (j), (l) and (m) shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (c) and (e), as applicable, shall be revised to reflect the sale of
the Additional Units.
9. Expenses. (a) The Partnership agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, including: (i) the
preparation, printing or reproduction, and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
each Prepricing Prospectus, the Prospectus, and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Prepricing Prospectus, the
Prospectus, and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Units; (iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Units, including any stamp taxes in connection with the
original issuance and sale of the Units; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda,
and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Units; (v) the listing of the Common Units
on AMEX; (vi) the registration or qualification of the Units for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the reasonable fees and expenses of counsel for the Underwriters in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc.'s review and approval of the Underwriters' participation in the
Offering and the distribution of the Units; (viii) the transportation and other
expenses incurred by or on behalf of officers and employees of the Partnership
in connection with presentations to prospective purchasers of the Units; and
(ix) the fees and expenses of the Partnership's accountants and the fees and
expenses of counsel (including local and special counsel) for the Partnership.
(b) The Partnership agrees to reimburse the Representatives for
their out-of-pocket expenses in connection with the performance of its
activities under this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated (otherwise than pursuant
to the second paragraph of Section 10 hereof) including but not limited to,
-33-
costs such as printing, facsimile, courier service, direct computer expenses,
accommodations and travel costs in connection with making road show
presentations with respect to the offering of the Units, other than any fees and
expenses of the Representatives' outside legal counsel and any other advisors,
accountants, appraisers, etc.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Units may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Partnership by notifying you,
or by you, as Representatives of the several Underwriters, by notifying the
Partnership.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Units which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Firm Units which such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of the Firm Units which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Units set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Units set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 8 of the
Agreement Among Underwriters of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc, McDonald
Investments Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, to purchase the Firm Units which
such defaulting Underwriter or Underwriters are obligated, but fail or refuse,
to purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Firm Units which it or they are obligated to purchase on the Closing
Date and the aggregate number of Firm Units with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Units which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Partnership for the purchase of such Firm Units by
one or more non-defaulting Underwriters or other party or parties approved by
you and the Partnership are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any party hereto
(other than the defaulting Underwriter). In any such case which does not result
in termination of this Agreement, either you or the Partnership shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. If any
one or more of the Underwriters shall fail or refuse to purchase Additional
Units which it or they are obligated to purchase hereunder on the Option Closing
Date, each non-defaulting Underwriter shall be obligated, severally, in the
proportion which the number of Firm Units set forth opposite its name in
Schedule I hereto bears to the aggregate number of Firm Units set forth opposite
the names of all non-defaulting Underwriters or in such other proportion as you
-34-
may specify in accordance with Section 8 of the Agreement Among Underwriters of
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., McDonald Investments Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, to purchase the Additional Units which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Partnership, purchases Units which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the General Partner or the Partnership, by notice to the
Partnership, if prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Additional Units), as
the case may be, (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York or Virginia shall have been declared by either
federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities, act of terrorism, declaration of war or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the Units at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts for
the resale of the Units by the Underwriters. Notice of such termination may be
given to the Partnership by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, and the statements in the 4th, 5th,
6th, 7th, 9th and 11th paragraphs under the caption "Underwriting" in any
Prepricing Prospectus and in the Prospectus, constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 6(a) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 7, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the General Partner or the
Partnership, at the office of the Partnership at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or (ii) if to you, as
Representatives of the several Underwriters, care of Friedman, Billings, ▇▇▇▇▇▇
& Co., Inc., Potomac Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
-35-
This Agreement has been and is made solely for the benefit of the
several Underwriters, the General Partner, the Partnership, their directors and
officers, and the other controlling persons referred to in Section 7 hereof and
their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Units in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Remainder of this page intentionally left blank.
-36-
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Operating Partnership, the General Partner, Atlas
America, REI, Viking and the several Underwriters.
Very truly yours,
ATLAS PIPELINE PARTNERS, L.P.
By: ATLAS PIPELINE PARTNERS GP, LLC,
its General Partner
By:_____________________________
Name:___________________________
Title:__________________________
ATLAS PIPELINE PARTNERS GP, LLC
By:_____________________________
Name:___________________________
Title:__________________________
Confirmed as of the date first
above mentioned on behalf of
itself and the other several
Underwriters named in Schedule I
hereto.
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
McDONALD INVESTMENTS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By: _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
For themselves and as Representatives of the other
several Underwriters named on Schedule I hereto.
SCHEDULE I
Atlas Pipeline Partners, L.P.
Number of Firm Units
Underwriter to be Purchased
----------- ---------------
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.....................
McDonald Investments Inc., a KeyCorp Company .............
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.....................................
Total..................................................... 950,000
Total
EXHIBIT A
Subsidiaries
Atlas Pipeline Operating Partnership, L.P.
Atlas Pipeline Pennsylvania, LLC
Atlas Pipeline Ohio LLC
Atlas Pipeline New York LLC
EXHIBIT B
[Letterhead of General Partner]
Atlas Pipeline Partners, L.P.
Public Offering of Common Units
____________________________
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
Potomac Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Atlas Pipeline
Partners, L.P., a Delaware limited partnership (the "Partnership"), Atlas
Pipeline Partnership GP, LLC, a Delaware limited liability company and Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc., McDonald Investments Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ as representatives of the underwriters, relating to an underwritten
public offering of common units representing limited partner interests (the
"Common Units") of the Partnership.
To induce you to enter into the Underwriting Agreement, the undersigned
agrees that it will not offer, sell, contract to sell or otherwise dispose of
any Subordinated Units (as defined in the Underwriting Agreement), any
securities that are convertible into, or exercisable or exchangeable for, or
that represent the right to receive, Common Units or Subordinated Units or any
securities that are senior to or pari passu with Common Units for a period of
[180 days] after the date of the Prospectus (as defined in the Underwriting
Agreement) without your prior written consent.
Exh. B-1
If for any reason the Underwriting Agreement is terminated before the
Closing Date (as defined in the Underwriting Agreement), the agreement set forth
above shall likewise be terminated.
ATLAS PIPELINE GP, LLC
By: ____________________________
its Managing Member
By: ____________________________
Name:_______________________
Title:______________________
Exh. B-2