Exhibit 10.8
CONTINUING GUARANTY
AGREEMENT
THIS CONTINUING GUARANTY AGREEMENT
(this “ Guaranty Agreement ”), dated as
of December 18, 2006, is made by ATLAS ENERGY RESOURCES, LLC,
a Delaware limited liability company (the “
Guarantor ”), in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent for the Lenders (the
“ Administrative Agent ”).
W I T N E S
S E T H :
WHEREAS, the Lenders have made
extensions of credit including but not limited to Loans and Letters
of Credit in the maximum aggregate principal amount not to exceed
$250,000,000 at any one time outstanding to Atlas Energy Operating
Company, LLC, a Delaware limited liability company (the “
Borrower ”), pursuant to that certain Revolving
Credit Agreement dated as of December 18, 2006, by and among
the Borrower, the financial institutions (the “
Lenders ”) party thereto, and Wachovia Bank,
National Association, in its capacity of the issuer of certain
letters of credit and as the Administrative Agent for the Lenders
thereunder (the Credit Agreement together with the exhibits and
schedules thereto and all extensions, renewals, amendments,
substitutions and replacements thereto and thereof is herein
referred to as the “ Credit Agreement
”);
WHEREAS, (i) the Letters of
Credit may be issued under the Credit Agreement for the account of
one or more of the Guarantors, (ii) the proceeds of the Loans
under the Credit Agreement may be used by the Borrower to make
loans to one or more of the Guarantors and for other general
corporate purposes of the Borrower and the Guarantors, and
(iii) Hedging Agreements may be entered into by one or more of
the Guarantors and any Lender or its Affiliate, all as permitted
pursuant to the Credit Agreement and all of which will directly and
indirectly benefit the Borrower and the Guarantors;
WHEREAS, as a condition precedent to
extending credit to the Borrower pursuant to the Credit Agreement,
the Lenders have required that, inter alia , each of the
Guarantors execute and deliver to the Administrative Agent, for and
on behalf of the Lenders, a guaranty agreement;
WHEREAS, the Guarantor has
determined, reasonably and in good faith, that (i) it has
adequate capital to conduct its business as presently conducted and
as proposed to be conducted, (ii) it will be able to meet its
obligations hereunder and in respect of its existing and future
indebtedness and liabilities (contingent or otherwise) as and when
the same shall become due and payable, including those under this
Guaranty Agreement, (iii) it is otherwise solvent and
(iv) the execution and delivery of this Guaranty Agreement and
the consummation of the transactions contemplated hereby will not
render it insolvent;
WHEREAS, the Guarantor has
determined that the execution and delivery of this Guaranty
Agreement is in furtherance of its corporate purposes and in its
best interest and that it will derive substantial benefit, whether
directly or indirectly, from the making of this Guaranty Agreement,
having regard for all relevant facts and circumstances;
and
WHEREAS, the Guarantor has agreed to
execute and deliver this Guaranty Agreement to the Administrative
Agent, for the benefit of the Lenders.
NOW THEREFORE, for good and valuable
consideration the receipt of which is hereby acknowledged, and in
order to induce the Lenders to make Loans to the Borrower pursuant
to the Credit Agreement by fulfilling the requirements of the
Credit Agreement, the Guarantor agrees, for the benefit of each
Lender, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain
Terms . The following
capitalized terms when used in this Guaranty Agreement, including
its preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural
forms thereof):
“ Administrative
Agent ” is defined in the preamble.
“ Borrower
” is defined in the first recital.
“ Commitments
” means each Commitment as defined in the Credit
Agreement.
“ Credit
Agreement ” is defined in the first
recital.
“ Guarantor
” is defined in the preamble.
“ Guaranty
Agreement ” is defined in the preamble.
“ Lenders
” is defined in the first recital.
“ Taxes ”
is defined in clause (1) of Section 2.7
.
“ U.C.C. ”
means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Credit Agreement
Definitions . Unless
otherwise defined herein or the context otherwise requires,
capitalized terms used in this Guaranty Agreement, including its
preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3 U.C.C.
Definitions . Unless
otherwise defined herein or the context otherwise requires, terms
for which meanings are provided in the U.C.C. are used in this
Guaranty Agreement, including its preamble and recitals, with such
meanings.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty
Agreement . The
Guarantor hereby absolutely, unconditionally, and irrevocably
(1) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Indebtedness of the
Borrower and each other Obligor now or hereafter existing under
each of the Credit Agreement, the Notes and each other Loan
Document to which the Borrower or such other Obligor is or may
become a party, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code, 11 U.S.C. §362(a), and
the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)), and
(2) indemnifies and holds harmless each Lender and each holder
of a Note for any and all costs and expenses (including reasonable
attorney’s fees and expenses) incurred by such Lender or such
holder, as the case may be, in enforcing any rights under this
Guaranty Agreement; provided , however , that the
Guarantor shall be liable under this Guaranty Agreement for the
maximum amount of such liability that can be hereby incurred
without rendering this Guaranty Agreement, as it
relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty Agreement
constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be
necessary or required that any Lender or any holder of any Note
exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Borrower or any other Obligor (or any
other Person) before or as a condition to the obligations of the
Guarantor hereunder.
SECTION 2.2 Acceleration of
Guaranty Agreement .
The Guarantor agrees that, in the event of the occurrence of any
event of the type described in Section 10.01(e),
(f) or (g) of the Credit Agreement, with respect to
the Borrower, any other Obligor or the Guarantor, and if such event
shall occur at a time when any of the Indebtedness may not then be
due and payable by the Borrower due to any automatic stay or other
debtor relief laws, the Guarantor will pay to the Lenders forthwith
the full amount which would be payable hereunder by the Guarantor
if all such Indebtedness were then due and payable.
SECTION 2.3 Guaranty Agreement
Absolute, etc . This
Guaranty Agreement shall in all respects be a continuing, absolute,
unconditional and irrevocable guaranty of payment, and shall remain
in full force and effect until all Indebtedness of the Borrower and
each other Obligor has been paid in full, all obligations of the
Guarantor hereunder shall have been paid in full, all Commitments
shall have terminated and all Lender Hedging Agreements have
terminated. Guarantor may not rescind or revoke its obligations
hereunder. The Guarantor guarantees that the Indebtedness of the
Borrower and each other Obligor will be paid strictly in accordance
with the terms of the Credit Agreement and each other Loan Document
under which they arise, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Lender or any holder of any Note
with respect thereto. The liability of the Guarantor under this
Guaranty Agreement shall be absolute, unconditional and irrevocable
irrespective of: (1) any lack of validity, legality or
enforceability of the Credit Agreement, any Note or any other Loan
Document; (2) the failure of any Lender or any holder of any
Note (a) to assert any claim or demand or to enforce any right
or remedy against the Borrower, any other Obligor or any other
Person (including any other guarantor) under the provisions of the
Credit Agreement, any Note, any other Loan Document or otherwise,
or (b) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Indebtedness of the
Borrower or any other Obligor; (3) any change in the time,
manner or place of payment of, or in any other term of, all or any
of the Indebtedness of the Borrower or any other Obligor, or any
other extension, compromise or renewal of any Indebtedness of the
Borrower or any other Obligor; (4) any reduction, limitation,
impairment or termination of any Indebtedness of the Borrower or
any other Obligor for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event
or occurrence affecting, any Indebtedness of the Borrower, any
other Obligor or otherwise; (5) any amendment to, rescission,
waiver, or other modification of, or any consent to departure from,
any of the terms of the Credit Agreement, any Note or any other
Loan Document; (6) any addition, exchange, release, surrender
or non-perfection of any collateral, or any amendment to or waiver
or release or addition of, or consent to departure from, any other
guaranty, held by any Lender or any holder of any Note securing any
of the Indebtedness of the Borrower or any other Obligor;
(7) the insolvency or bankruptcy of, or similar event
affecting, the Borrower or any other Obligor; or (8) any other
circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any other
Obligor, any surety or any guarantor. Guarantor waives all rights
and defenses which may arise with respect to any of the foregoing,
and Guarantor waives any right to revoke this Guaranty Agreement
with respect to future indebtedness. Guarantor waives all rights or
defenses under (1) Section 34.01 et seq
. of the Texas Business and Commerce Code , as amended,
(2) Section 17.001 of the Texas Civil Practice and
Remedies Code , as amended, (3) Rule 31 of the Texas
Rules of Civil Procedure , as amended, or (4) common law,
in equity, under contract, by statute, or otherwise.
SECTION 2.4
Reinstatement .
The Guarantor agrees that this Guaranty Agreement shall continue to
be effec
