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Exhibit
10.1
EXECUTION COPY
$250,000,000
ATLAS PIPELINE PARTNERS,
L.P.
(a Delaware limited
partnership)
and
ATLAS PIPELINE FINANCE
CORPORATION
(a Delaware
corporation)
8
3 /
4 %
SENIOR NOTES DUE 2018
PURCHASE AGREEMENT
June 24, 2008
June 24, 2008
Wachovia Capital Markets, LLC
As representative of the
several Initial Purchasers
listed
in Schedule II hereto
One Wachovia Center
301 South College Street
Charlotte, North Carolina
28288
Ladies and Gentlemen:
ATLAS PIPELINE PARTNERS,
L.P., a Delaware limited partnership (the “
Partnership ”), and ATLAS PIPELINE FINANCE
CORPORATION, a Delaware corporation (the “ Finance Co
” and, together with the Partnership, the “
Issuers ”), propose to issue and sell to the several
Initial Purchasers listed in Schedule II hereto (the “
Initial Purchasers ”), for whom Wachovia Capital
Markets, LLC (“ Wachovia ”) is acting as
representative, $250,000,000 aggregate principal amount of their 8
3 /
4 %
Senior Notes due 2018 (the “ Notes ”), which
will be unconditionally guaranteed on a senior basis as to
principal, premium, if any, and interest (the “
Guarantees ”) by the subsidiaries of the Partnership
named in Schedule I hereto (each individually, a “
Guarantor ” and collectively, the “
Guarantors ”).
Atlas Pipeline Partners, GP,
LLC, a Delaware limited liability company (the “ General
Partner ”), serves as the general partner of the
Partnership. The Partnership is the sole limited partner of Atlas
Pipeline Operating Partnership, L.P., a Delaware limited
partnership (the “ Operating Partnership ”), and
the General Partner is the general partner of the Operating
Partnership. Each of Atlas Pipeline Ohio, LLC, a Pennsylvania
limited liability company (“ Ohio LLC ”), Atlas
Pipeline Pennsylvania, LLC, a Pennsylvania limited liability
company (“ Pennsylvania LLC ”), Atlas Pipeline
New York, LLC, a Pennsylvania limited liability company (“
New York LLC ”), Atlas Pipeline Mid-Continent LLC, a
Delaware limited liability company (“ Mid-Continent
LLC ”), APC Acquisition, LLC, a Delaware limited
liability company (“ APC LLC ”), and Atlas
Pipeline Tennessee, LLC, a Pennsylvania limited liability company
(“ Tennessee LLC ”), is a direct, wholly-owned
subsidiary of the Operating Partnership. Pennsylvania LLC is the
sole member of Atlas McKean, LLC (“ Atlas McKean
”). Mid-Continent LLC is the sole member of Elk City Oklahoma
GP, LLC, a Delaware limited liability company (“ Elk City
GP ”), the general partner of Elk City Oklahoma Pipeline,
L.P., a Texas limited partnership (“ Elk City
”), and the sole limited partner of Elk City, the sole member
of Atlas Arkansas Pipeline LLC, an Oklahoma limited liability
company (“ Arkansas Pipeline LLC ”), the sole
member of Mid-Continent Arkansas Pipeline, LLC, an Arkansas limited
liability company (“ Mid-Continent Pipeline LLC
”), the sole member of Atlas Chaney Dell, LLC, a Delaware
limited liability company (“ Atlas Chaney ”),
the sole member of Saddleback Pipeline, LLC, a Delaware limited
liability company (“ Saddleback LLC ”), and the
sole member
of Atlas Midkiff, LLC, a Delaware
limited liability company (“ Atlas Midkiff ”).
Arkansas Pipeline LLC owns a 74% general partner interest and a 1%
limited partner interest, and Mid-Continent Pipeline LLC owns a 25%
general partner interest, in NOARK Pipeline System, Limited
Partnership, an Arkansas limited partnership (“ NOARK
”). NOARK is the sole member of Ozark Gas Transmission, LLC,
an Oklahoma limited liability company (“ OGT ”),
Ozark Gas Gathering, LLC, an Oklahoma limited liability company
(“ OGG ”) and NOARK Energy Services, LLC, an
Oklahoma limited liability company (“ NOARK Energy
Services ”). Elk City is the sole member of ECOP Gas
Company, LLC, a Delaware limited liability company (“
ECOP ”). Atlas Chaney owns a 100% Class B controlling
interest in Atlas Pipeline Mid-Continent WestOk, LLC, a Delaware
limited liability company (“ WestOk ”) and Atlas
Midkiff owns a 100% Class B controlling interest in Atlas Pipeline
Mid-Continent WestTex, LLC, a Delaware limited liability company
(“ WestTex ”). WestTex is the sole stockholder
of Setting Sun Pipeline Corporation, a Delaware corporation
(“ Sun Pipeline ”). For purposes of this
Agreement, each of Ohio LLC, Pennsylvania LLC, New York LLC,
Tennessee LLC, APC LLC, APL Finance, Mid-Continent LLC, Atlas
McKean, Elk City, Elk City GP, Arkansas Pipeline LLC, Mid-Continent
Pipeline LLC, NOARK, OGT, OGG, NOARK Energy Services, ECOP, Atlas
Chaney, Saddleback LLC, Atlas Midkiff, WestOk, WestTex and Sun
Pipeline is sometimes referred to herein individually as a “
Subsidiary ” and collectively, as the “
Subsidiaries .”
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The Partnership, the General
Partner, the Finance Co, the Operating Partnership and the
Subsidiaries are sometimes referred to herein individually as a
“ Partnership Entity ” and collectively as the
“ Partnership Entities .” The Partnership
Entities excluding the General Partner are sometimes referred to
herein collectively as the “ Partnership Group
.” The Partnership, the General Partner and the Operating
Partnership are sometimes referred to herein collectively as the
“ Atlas Parties .”
The Notes will be issued
pursuant to an Indenture dated June 27, 2008 among the
Issuers, the Guarantors and Wachovia Bank, National Association, as
Trustee (the “ Trustee ”) (the “
Indenture ”). This Agreement, the Registration Rights
Agreement, to be dated the Closing Date (defined below), between
the Initial Purchasers and the Issuers (the “ Registration
Rights Agreement ”) and the Indenture are hereinafter
collectively referred to as the “ Transaction
Documents ” and the execution and delivery of the
Transaction Documents and the transactions contemplated herein and
therein are hereinafter referred to as the “
Transactions .”
The Notes (and the related
Guarantees) will be offered and sold through the Initial Purchasers
without being registered under the Securities Act of 1933, as
amended (the “ Securities Act ”), to qualified
institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act and in
offshore transactions in reliance on Regulation S under the
Securities Act (“ Regulation S ”). The Initial
Purchasers have advised the Issuers that they will offer and sell
the Notes purchased by them hereunder in accordance with
Section 3 hereof as soon as the Initial Purchasers deem
advisable.
In connection with the sale
of the Notes, the Issuers have prepared a preliminary offering
memorandum, dated June 20, 2008 (the “ Preliminary
Memorandum ”), the Offering Memorandum (as defined below)
and a Final Offering Memorandum (as defined below), dated the date
hereof. The Final Memorandum, the Preliminary Memorandum and the
Offering Memorandum are referred to herein as a
“Memorandum.” Each Memorandum sets forth certain
information concerning the Issuers, the Notes, the Transaction
Documents and the Transactions. The Issuers hereby confirm that
they have authorized the use of the Preliminary Memorandum and the
Offering Memorandum, and any amendment or supplement thereto, in
connection with the offer and sale of the Notes by the Initial
Purchasers. As used herein, the term “ Memorandum
” shall include, except where specifically noted, in each
case the documents incorporated by reference therein. The terms
“supplement,” “amendment” and
“amend” as used herein with respect to a Memorandum
shall include all documents deemed to be incorporated by reference
in the Preliminary Memorandum, the Offering Memorandum or the Final
Memorandum that are filed with the Securities and Exchange
Commission (the “ Commission ”) pursuant to the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) prior to the Time of Sale (as defined
below).
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Prior to the time when the
sales of the Notes were first made (the “ Time of Sale
”), the Issuers have prepared and delivered to the Initial
Purchasers a pricing supplement (the “ Pricing
Supplement ”) dated June 24, 2008. The Pricing
Supplement together with the Preliminary Memorandum is referred to
herein as the “ Offering Memorandum
.”
Promptly after the Time of
Sale and in any event no later than the second Business Day
following the Time of Sale, the Issuers will prepare and deliver to
the Initial Purchasers a Final Offering Memorandum (the “
Final Memorandum ”), which will consist of the
Preliminary Memorandum with such changes therein as are required to
reflect the information contained in the Pricing Supplement, and
from and after the time such Final Memorandum is delivered to each
Initial Purchaser, all references herein to the Offering Memorandum
shall be deemed to be a reference to both the Offering Memorandum
and the Final Memorandum.
1. Representations and
Warranties of the Issuers and the Guarantors . The Issuers and
the Guarantors jointly and severally represent and warrant to, and
agree with, the Initial Purchaser that:
(a) The Preliminary
Memorandum does not contain; the Offering Memorandum at the Time of
Sale and at the Closing Date; and the Final Memorandum, and any
amendment or supplement thereto, does not and will not contain any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however , that the representations or warranties
set forth in this paragraph shall not apply to statements in or
omissions from any Memorandum made in reliance upon and in
conformity with information furnished in writing to the Issuers by
the Initial Purchasers through Wachovia Capital Markets, LLC
expressly for use therein, as specified in Section 11. The
statistical and industry data included in each Memorandum are based
on or derived from sources that the Issuers believe to be reliable
and accurate.
(b) Each of the Partnership
and the Operating Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act, as amended (the
“ Delaware LP Act ”), with full partnership
power and authority to own or lease, as the case may be, and to
operate its properties and to conduct its business, in each case in
all material respects as described in the Offering Memorandum, and
is duly registered or qualified to do business as a foreign limited
partnership and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to so register or qualify would not have a Material Adverse
Effect. “ Material Adverse Effect ” shall mean a
material adverse change in or effect on (i) the business,
operations, properties, assets, liabilities, stockholders’
equity, earnings, condition (financial or otherwise), results of
operations or prospects of the Partnership and its subsidiaries,
considered as one enterprise, whether or not in the ordinary course
of business, or (ii) the ability of the Partnership and each
Guarantor to perform its obligations under the Notes or the
Transaction Documents.
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(c) The Finance Co has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(d) The General Partner has
been duly formed and is validly existing in good standing as a
limited liability company under the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”), with
full limited liability company power and authority to own or lease,
as the case may be, and to operate its properties and to conduct
its business and to act as general partner of the Partnership and
the Operating Partnership, and is duly registered or qualified to
do business as a foreign limited liability company and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so register or qualify
would not have a Material Adverse Effect.
(e) 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 and validly authorized and issued in accordance with
the agreement of limited partnership of the Partnership (the
“ Partnership Agreement ”); and the General
Partner owns such general partner interest free and clear of all
liens, encumbrances, security interests, equities, charges or
claims other than those created by or arising under the Delaware LP
Act or the Partnership Agreement and under Atlas Pipeline Holdings,
L.P.’s Revolving Credit Facility, dated July 26, 2006
with Wachovia Bank, National Association, as amended (the “
Holdings Credit Facility ”).
(f) Each of the Subsidiaries
has been duly organized and validly existing and in good standing
as a limited liability company under the laws of the jurisdiction
of its organization, with full power and authority to own or lease,
as the case may be, and to operate its respective properties and to
conduct its business, and is duly registered or qualified to do
business as a foreign limited liability company and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so register or qualify
would not have a Material Adverse Effect.
(g) The General Partner is
the sole general partner of the Operating Partnership, and has a
1.0101% partnership interest in the Operating Partnership; such
interest has been duly authorized and validly issued in accordance
with the agreement of limited partnership of the Operating
Partnership (the “ Operating Partnership Agreement
”); and the General Partner owns such general partner
interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims, other than liens,
encumbrances and security interests arising under the Holdings
Credit Facility.
(h) The Partnership is the
sole limited partner of the Operating Partnership with a 98.9899%
partnership interest in the Operating Partnership; such interest
has
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been duly authorized and
validly issued in accordance with the Operating Partnership
Agreement and is fully paid (to the extent required under the
Operating Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Section 17-607 of the
Delaware LP Act); and the Partnership owns such limited partner
interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims other than those arising
under the New Credit Facility (as defined below).
(i) The Operating Partnership
owns 100% of the member interests in Mid-Continent LLC; such member
interests have been duly authorized and validly issued in
accordance with the limited liability company agreement of
Mid-Continent LLC (the “ APMC Agreement ”) and
are fully paid (to the extent required under the APMC Agreement)
and nonassessable (except as such nonassessability may be affected
by Section 18-607 of the Delaware LLC Act); and the
Partnership owns such member interests free and clear of any liens,
encumbrances, security interests, equities, charges or claims,
other than those arising under the Revolving Credit and Term Loan
Agreement among the Partnership, Wachovia Bank, National
Association, et al. dated July 27, 2007 (as subsequently
amended, the “ New Credit Facility
”).
(j) Mid-Continent LLC owns
100% of the member interests in ELK City GP; such member interests
have been duly authorized and validly issued in accordance with the
limited liability company agreement of ELK City GP (the “
ELK City GP Agreement ”) and are fully paid (to the
extent required under the ELK City GP Agreement) and nonassessable
(except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and Mid-Continent LLC
owns such member interests free and clear of any liens,
encumbrances, security interests, equities, charges or claims,
other than those arising under the New Credit Facility.
(k) Mid-Continent LLC owns
100% of the member interests in Arkansas Pipeline LLC and
Mid-Continent Pipeline LLC; such member interests have been duly
authorized and validly issued in accordance with the limited
liability company agreement of Arkansas Pipeline LLC (the “
Atlas Arkansas Agreement ”) and are fully paid (to the
extent required under the Atlas Arkansas Agreement) and
nonassessable (except as such nonassessability may be affected by
statutes of Arkansas specifically governing limited liability
companies); and Mid-Continent LLC owns such member interests free
and clear of any liens, encumbrances, security interests, equities,
charges or claims, other than those arising under the New Credit
Facility.
(l) Arkansas Pipeline LLC
owns a 74% general partner interest and a 1% limited partner
interest in NOARK, and Mid-Continent Pipeline LLC owns a 25%
general partner interest in NOARK, such interest has in each case
been duly authorized and validly issued in accordance with the
Amended and Restated Agreement of Limited Partnership of NOARK
Pipeline System, Limited Partnership, dated as of January 12,
1998, as amended (the “NOARK Partnership Agreement”)
and such interests
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are in each case fully paid
(to the extent required under the NOARK Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
statutes of Arkansas specifically governing limited liability
companies); and Arkansas Pipeline LLC and Mid-Continent Pipeline
LLC own such limited partner interest and such general partner
interest, as the case may be, free and clear of all liens,
encumbrances, security interests, equities, charges or claims other
than those arising under the New Credit Facility.
(m) Arkansas Pipeline LLC
owns 100% of the member interests in Mid-Continent Pipeline LLC;
such member interests have been duly authorized and validly issued
in accordance with the limited liability company agreement of
Mid-Continent Pipeline LLC (the “ MCAP Agreement
”) and are fully paid (to the extent required under the MCAP
Agreement) and nonassessable (except as such nonassessability may
be affected by statutes of Arkansas specifically governing limited
liability companies); and Arkansas Pipeline LLC owns such member
interests free and clear of any liens, encumbrances, security
interests, equities, charges or claims, other than those arising
under the New Credit Facility.
(n) NOARK owns 100% of the
member interests of each of NOARK Energy Services, OGG and OGT; all
such member interests have been duly authorized and validly issued
in accordance with their respective limited liability company
agreements and are fully paid (to the extent required by such
limited liability company agreements) and nonassessable (except as
such nonassessability may be affected by statutes of Oklahoma
specifically governing limited liability companies); and NOARK owns
all of such member interests free and clear of any liens,
encumbrances, security interests, equities, charges or claims,
other than those arising under the New Credit Facility.
(o) The Operating Partnership
owns 100% of the member interests of each of Ohio LLC, Pennsylvania
LLC, New York LLC and Mid-Continent LLC; all such member interests
have been duly authorized, and validly issued in accordance with
their respective limited liability company agreements and are fully
paid (to the extent required by such limited liability company
agreements) and nonassessable (except as such nonassessability may
be affected by Section 8931 of the Pennsylvania Limited
Liability Company Law of 1994, as amended or Section 18-607 of
the Delaware LLC Act); and the Operating Partnership owns all of
such member interests free and clear of any liens, encumbrances,
security interests, equities, charges or claims, other than those
arising under the New Credit Facility.
(p) Each Issuer and each
Guarantor has full power (corporate and other) to own or lease its
properties and conduct its business as described in the Offering
Memorandum; and the Issuers have full power (corporate and other)
to enter into the Transaction Documents and to carry out all the
terms and provisions hereof and thereof to be carried out by
them.
8
(q) The authorized, issued
and outstanding equity interests or shares of capital stock, as the
case may be, of each Issuer are as set forth in the Offering
Memorandum. All of the issued equity interests of the Partnership
and all of the issued shares of capital stock of the Finance Co
have been duly authorized and validly issued and are fully paid and
nonassessable; and none of the outstanding equity interests of the
Partnership and none of the outstanding shares of capital stock of
the Finance Co were issued in violation of the preemptive or other
similar rights of any security holder of the Partnership or the
Finance Co, respectively.
(r) No Subsidiary is
prohibited, directly or indirectly, from paying any dividends to
the Partnership, from making any other distribution on such
subsidiary’s capital stock or equity interests, as the case
may be, 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 provided by
applicable laws or regulations, by the Indenture, the New Credit
Facility or as disclosed in the Offering Memorandum.
(s) Except for rights to
acquire securities under the Partnership’s LTIP or as
otherwise disclosed in the Offering Memorandum, there are no
outstanding (i) securities or obligations of the Partnership
convertible into or exchangeable for any equity interests of the
Partnership, (ii) warrants, rights or options to subscribe for
or purchase from the Partnership any such equity interests or any
such convertible or exchangeable securities or obligations or
(iii) obligations of the Partnership to issue any such equity
interests, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(t) Grant Thornton LLP, who
has certified the financial statements included, or incorporated by
reference, in the Offering Memorandum and delivered its report with
respect to the audited financial statements of the Partnership and
its consolidated subsidiaries, is an independent public accountant
with respect to the Partnership within the meaning of the
Securities Act and the applicable rules and regulations
thereunder.
(u) KPMG LLP, who has
certified the financial statements relating to the natural gas
gathering systems and processing plants known as the “Chaney
Dell System” and the natural gas gathering systems and
processing plants known as the “Midkiff/Benedum System”
(the “ Anadarko Assets ”) acquired by the
Partnership from subsidiaries of Anadarko Petroleum Corporation
incorporated by reference in the Offering Memorandum and delivered
its report with respect to the audited financial statements of the
Anadarko Assets incorporated by reference in the Offering
Memorandum, was during the periods covered by the financial
statements on which they reported an independent public accountant
with respect to the Anadarko Assets within the meaning of the
Securities Act and the applicable rules and regulations
thereunder
9
(v) The financial statements
(including the notes thereto) of the Partnership and its
consolidated subsidiaries in the Offering Memorandum fairly present
the financial position, results of operations, cash flows and
changes in equity interests of the Partnership and its consolidated
subsidiaries as of the dates and for the periods specified therein;
since the date of the latest of such financial statements, there
has been no change nor any development which has had or could
reasonably be expected to have a Material Adverse Effect; such
financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise expressly
disclosed in the notes thereto) and comply as to form with the
applicable accounting requirements of Regulation S-X under the
Securities Act; the information set forth under the captions
“Offering Memorandum Summary—Summary Historical and Pro
Forma Financial and Operating Data,”
“Capitalization,” “Selected Financial Data”
and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in the Offering
Memorandum and documents incorporated by reference therein has been
fairly extracted from the financial statements of the Partnership
and its consolidated subsidiaries and the financial statements of
the Anadarko Assets, fairly presents the information included
therein and has been compiled on a basis consistent with that of
the audited financial statements included, or incorporated by
reference, in the Offering Memorandum. The pro forma financial
statements (including the notes thereto) included, or incorporated
by reference, in the Offering Memorandum, except for the
presentation of a twelve months ended March 31, 2008 unaudited
pro forma consolidated statement of income and as otherwise
disclosed in the Offering Memorandum, (i) comply as to form in
all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”),
(ii) have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma
financial statements and (iii) have been properly computed on
the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma
financial information included, or incorporated by reference, in
the Offering Memorandum are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(w) The financial statements
(including the notes thereto) of Anadarko Assets incorporated by
reference in the Offering Memorandum fairly present the financial
position, results of operations, cash flows and changes in
stockholders’ equity of Anadarko Assets as of the dates and
for the periods specified therein; such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved
(except as otherwise expressly disclosed in the notes thereto) and
comply as to form with the applicable accounting requirements of
Regulation S-X under the Securities Act.
(x) The documents
incorporated by reference in the Offering Memorandum, at the time
they were or hereafter are filed with the Commission, complied
or,
10
when so filed, will comply,
as the case may be, in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder, and, when read together with the other information in
the Offering Memorandum on the date hereof and on the Closing Date,
did not and will not, as of such time or dates, as the case may be,
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 or are made, not misleading.
(y) Subsequent to the date as
of which information is given in the Offering Memorandum,
(i) none of the Partnership and its subsidiaries have incurred
any material liability or obligation, direct or contingent, or
entered into any material transaction in each case not in the
ordinary course of business; (ii) the Partnership has not
purchased any of its outstanding equity interests and, except for
regular quarterly distributions to its unitholders and general
partner in amounts per unit that are consistent with past practice,
has not declared, paid or otherwise made any dividend or
distribution of any kind; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term
debt of the Partnership and its subsidiaries, except as disclosed
in the Offering Memorandum.
(z) The Partnership and each
of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(aa) The Partnership is
subject to and in full compliance with the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act. The
Offering Memorandum as delivered from time to time shall
incorporate by reference the most recent Annual Report of the
Partnership on Form 10-K filed with the Commission prior to the
Time of Sale and each Quarterly Report of the Partnership on Form
10-Q and each Current Report of the Partnership on Form 8-K filed
with the Commission since the end of the fiscal year and prior to
the Time of Sale to which the most recent Annual Report relates.
The documents incorporated or deemed to be incorporated by
reference in each Memorandum at the time they were filed with the
Commission complied and will comply at the date of such Memorandum
in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission promulgated
thereunder and, when read together with the other information in
such Memorandum, at the date of such Memorandum and as of the
Closing Date, do not
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and will not include 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.
(bb) This Agreement has been
duly authorized, executed and delivered by each Issuer and each
Guarantor.
(cc) The Registration Rights
Agreement has been duly authorized by each Issuer and each
Guarantor and, on the Closing Date, will have been duly executed
and delivered by each Issuer and each Guarantor, and will
constitute the legal, valid and binding obligations of each Issuer
and each Guarantor, enforceable against each Issuer and each
Guarantor in accordance with its terms; and will conform to the
description thereof in the Offering Memorandum and will be
substantially in the form previously delivered to you.
(dd) The Indenture has been
duly authorized, executed and delivered by each Issuer and each
Guarantor and constitutes a legal, valid and binding obligation of
each Issuer and each Guarantor, enforceable against each Issuer and
each Guarantor in accordance with its terms; and conforms to the
description thereof in the Offering Memorandum; there is no, and
after giving effect to the consummation of the Transactions
contemplated herein and in the Offering Memorandum there will be
no, default under the Indenture.
(ee) The Partnership
Agreement has been duly authorized, executed and delivered and is a
valid and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its
terms.
(ff) The Operating
Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and the Partnership, and is a
valid and legally binding agreement of the General Partner and the
Partnership, enforceable against the General Partner and the
Partnership in accordance with its terms.
(gg) The Atlas Arkansas
Agreement is a valid and legally binding agreement of Mid-Continent
LLC, enforceable against Mid-Continent LLC in accordance with its
terms.
(hh) Each of the limited
liability company agreements of Ohio LLC, Pennsylvania LLC, New
York LLC and Mid-Continent LLC has been duly authorized, executed
and delivered by the Operating Partnership and is a valid and
legally binding agreement of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its
terms.
(ii) The ELK City GP
Agreement has been duly authorized, executed and delivered by
Mid-Continent LLC, and is a valid and legally binding agreement of
Mid-Continent LLC, enforceable against Mid-Continent LLC in
accordance with its terms.
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(jj) The Indenture conforms
to the requirements of the Trust Indenture Act of 1939, as amended
(the “ Trust Indenture Act ”), and to the rules
and regulations of the Commission applicable to an indenture that
is qualified thereunder.
Provided that, with respect
to each agreement described in clauses (z) through
(ii) above, 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).
(kk) The Notes have been duly
authorized and, on the Closing Date, when executed and
authenticated in the manner provided for in the Indenture and
delivered to and paid for by the Initial Purchasers as provided in
this Agreement, will constitute the legal, valid and binding
obligations of the Issuers, enforceable against the Issuers in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general
principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement; the Guarantees
have been duly authorized and, on the Closing Date, upon the due
issuance and delivery of the related Notes and the due endorsement
of the Guarantees thereon, will have been duly executed, endorsed
and delivered and will constitute valid and legally binding
obligations of each of the Guarantors, and will be entitled to the
benefits of the Indenture; the Exchange Notes (as defined in the
Registration Rights Agreement) have been duly authorized and, when
executed and authenticated in the manner provided for in the
Registration Rights Agreement and the Indenture, will constitute
the legal, valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity, and
will be entitled to the benefits of the Indenture and the
Registration Rights Agreement; and the Notes and the Exchange Notes
will conform to the descriptions thereof in the Offering
Memorandum.
(ll) The execution, delivery
and performance by each Issuer and each Guarantor of this Agreement
and the other Transaction Documents, the issuance and sale of the
Notes and the compliance by each Issuer and each Guarantor with all
of the provisions of the Notes, the Indenture, the Registration
Rights Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby will not
(i) conflict with, result in a breach or violation of, or
constitute a default
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under, any indenture,
mortgage, deed of trust or loan agreement, stockholders’
agreement or any other agreement or instrument to which the Issuers
or any of their subsidiaries or any other Guarantor is a party or
by which the Issuers or any of their subsidiaries or any other
Guarantor is bound or any of their respective properties are
subject, or with the operating agreement, certificate of
incorporation or by-laws of the Issuers or any other Guarantor, or
any statute, rule or regulation or any judgment, order or decree of
any governmental authority or court or any arbitrator applicable to
the Issuers or any other Guarantor, or (ii) require the
consent, approval, authorization, order, registration or filing or
qualification with any governmental authority or court, or body or
arbitrator having jurisdiction over the Issuers or any other
Guarantor, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer or sale
of the Notes and by federal and state securities laws with respect
to the obligations of the Issuers and the Guarantors under the
Registration Rights Agreement.
(mm) No legal or governmental
proceedings or investigations are pending or threatened to which
the Issuers or any other Guarantor is a party or to which any of
the properties of the Issuers or any of their subsidiaries or any
other Guarantor is subject, other than proceedings accurately
described in each Memorandum and such proceedings or investigations
that would not, singly or in the aggregate, result in a Material
Adverse Effect.
(nn) There are no
relationships, direct or indirect, between or among the Issuers or
any of their subsidiaries or any other Guarantor, on the one hand,
and the respective directors, officers, stockholders, equity
interest holders, customers or suppliers of the Issuers or any of
their subsidiaries or any other Guarantor, on the other hand, that
would be required by the Securities Act to be disclosed in a
prospectus were the Notes being issued and sold in a public
offering registered on Form S-1 under the Securities Act that are
not so disclosed in the Offering Memorandum; and there are no
contracts or other documents that would be required by the
Securities Act to be disclosed in a prospectus were the Notes being
issued and sold in a public offering registered on Form S-1 under
the Securities Act that are not so disclosed in the Offering
Memorandum.
(oo) Each of the Issuers and
each Guarantor is not now nor, after giving effect to the issuance
of the Notes and the execution, delivery and performance of the
Transaction Documents and the consummation of the transactions
contemplated thereby or described in the Preliminary Memorandum or
the Offering Memorandum, will be (i) insolvent, (ii) left
with unreasonably small capital with which to engage in their
anticipated business or (iii) incurring debts or other
obligations beyond its ability to pay such debts or obligations as
they become due.
(pp) The Issuers and their
Affiliates (as defined in Rule 501(b) of Regulation D under
the Securities Act (“ Regulation D ”)) have not
distributed and, prior to the
14
later of (i) the Closing
Date and (ii) the completion of the distribution of the Notes,
will not distribute any offering material in connection with the
offering and sale of the Notes other than the Preliminary
Memorandum, Offering Memorandum, the Final Memorandum or any
amendment or supplement thereto.
(qq) The Issuers and their
subsidiaries have not sustained, since the date of the latest
audited financial statements included or incorporated by reference
in the Offering Memorandum (exclusive of any amendment or
supplement thereto), any loss or interference with their business
or properties from fire, explosion, flood, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree (whether
domestic or foreign) otherwise than as set forth in the Offering
Memorandum (exclusive of any amendment or supplement thereto); and,
since such date, there has not occurred any change or development
having a Material Adverse Effect.
(rr) The statements set forth
in the Offering Memorandum under the caption “Description of
Notes,” insofar as they purport to constitute a summary of
the terms of the Notes, and under the captions
(i) “Description of Other Indebtedness,”
“Material United States Federal Income Tax
Consequences,” “Exchange Offer; Registration
Rights” and “Notice to Investors” in the Offering
Memorandum and (ii) “Directors and Executive Officers of
the Registrant,” “Executive Compensation,”
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” “Business”
and “Certain Relationships and Related Transactions” in
the documents incorporated by reference in the Offering Memorandum,
insofar as they purport to summarize the provisions of the laws and
documents referred to therein, fairly and accurately summarize the
subject matter thereof.
(ss) The Issuers and their
subsidiaries and each other Guarantor have good and marketable
title in fee simple to all items of real property and good and
marketable title to all personal property owned by each of them
except for (i) taxes not yet payable, (ii) as described
in the Offering Memorandum 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, free and clear of any
pledge, lien, encumbrance, security interest or other defect or
claim of any third party. Any property leased by the Issuers and
their subsidiaries and each other Guarantor is held under valid,
subsisting and enforceable leases, and there is no default under
any such lease or any other event that with notice or lapse of time
or both would constitute a default thereunder with such exceptions
(i) as are not material and do not interfere with the use made
and proposed to be made of such assets as they have been used as
described in the Offering Memorandum or (ii) that would not
have a Material Adverse Effect.
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(tt) Each of the Partnership
Entities has such consents, easements, rights-of-way, permits or
licenses from each person (collectively, “
rights-of-way ”) as are necessary to conduct its
business in the manner described, and subject to the limitations
contained, in the Offering Memorandum, with such exceptions
(i) as are not material and do not interfere with the use made
and proposed to be made of such assets as they have been used as
described in the Offering Memorandum or (ii) that would not
have a Material Adverse Effect.
(uu) No “prohibited
transaction” (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“
ERISA ”), or Section 4975 of the Internal Revenue
Code of 1986, as amended from time to time (the “ Code
”)) or “accumulated funding deficiency” (as
defined in Section 302 of ERISA) or any of the events set
forth in Section 4043(c) of ERISA (other than events with
respect to which the 30-day notice requirement under
Section 4043 of ERISA has been waived) has occurred, exists or
is reasonably expected to occur with respect to any employee
benefit plan (as defined in Section 3(3) of ERISA) which the
Issuers or any of their subsidiaries or any other Guarantor
maintains, contributes to or has any obligation to contribute to,
or with respect to which the Issuers or any of their subsidiaries
or any other Guarantor has any liability, direct or indirect,
contingent or otherwise (a “ Plan ”); each Plan
is in compliance in all material respects with applicable law,
including ERISA and the Code; none of the Issuers or any of their
subsidiaries or any other Guarantor has incurred or expects to
incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any Plan; and each Plan that is
intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred,
whether by action or failure to act, which could reasonably be
expected to cause the loss of such qualification.
(vv) Except as disclosed in
each Memorandum, no labor dispute with the employees of the Issuers
or any of their subsidiaries or any other Guarantor exists, is
imminent or is threatened, and the senior officers of the Issuers
and their subsidiaries and each other Guarantor are not aware of
any existing, imminent or threatened labor disturbance by the
employees of any of their respective principal suppliers,
manufacturers, customers or contractors, which, in either case,
could reasonably be expected to result in a Material Adverse
Effect.
(ww) No proceedings for the
merger, consolidation, liquidation or dissolution of the Issuers or
any Guarantor or the sale of all or a material part of the assets
of the Issuers and their subsidiaries or any Guarantor or any
material acquisition by the Issuers or any Guarantor are pending
that would be required by the Securities Act to be disclosed in a
prospectus included in a Registration Statement on Form S-1 under
the Securities Act.
16
(xx) The Issuers and each of
their subsidiaries and each other Guarantor owns or otherwise
possesses adequate rights to use all material patents, trademarks,
service marks, trade names and copyrights, all applications and
registrations for each of the foregoing, and all other material
proprietary rights and confidential information necessary to
conduct their respective businesses as currently conducted; none of
the Issuers or any of their subsidiaries or any other Guarantor has
received any notice, or is otherwise aware, of any infringement of
or conflict with the rights of any third party with respect to any
of the foregoing.
(yy) Except as disclosed in
each Memorandum, none of the Partnership Entities is subject to
rate or terms of service regulation under federal or state
law.
(zz) The Issuers and each of
their subsidiaries and each other Guarantor is insured by insurers
of recognized financial responsibility against such losses and
risks and in such amounts and with such deductibles as are
customary in the business in which it is engaged; and none of the
Issuers or any of their subsidiaries or any other Guarantor has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue their respective businesses at a cost that would not have
a Material Adverse Effect.
(aaa) The Issuers and each of
their subsidiaries and each other Guarantor has complied with all
laws, ordinances, regulations and orders applicable to the Issuers
and their subsidiaries and each other Guarantor, and their
respective businesses, and none of the Issuers or any of their
subsidiaries or any other Guarantor has received any notice to the
contrary; and each of the Issuers and their subsidiaries and each
other Guarantor possesses all certificates, authorizations,
permits, licenses, approvals, orders and franchises (collectively,
“ Licenses ”) necessary to conduct their
respective businesses in the manner and to the full extent now
operated or proposed to be operated as described in the Offering
Memorandum, issued by the appropriate federal, state, local or
foreign governmental or regulatory authorities (collectively, the
“ Agencies ”), except where the failure to so
comply or to possess such Licenses could not have a Material
Adverse Effect. The Licenses are in full force and effect and no
proceeding has been instituted or, to the Issuers’ knowledge,
is threatened or contemplated which in any manner affects or calls
into question the validity or effectiveness thereof. The Licenses
contain no restrictions, except for restrictions applicable to the
natural gas gathering and processing industry generally, that are
materially burdensome to the Issuers.
(bbb) There is and has been
no failure on the part of either Issuer or any of either
Issuer’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“ Sarbanes-Oxley Act ”) to the extent
applicable, including Section 402 related to loans and
Sections 302 and 906 related to certifications.
17
(ccc) (i) The Issuers
and each of their subsidiaries and each other Guarantor is and has
been in compliance with all applicable Environmental Laws (as
defined below);
(ii) The Partnership and each
of its subsidiaries and each other Guarantor has obtained and is in
compliance with the conditions of all permits, authorizations,
licenses, approvals and variances necessary under any Environmental
Law for the continued conduct in the manner now conducted of their
respective businesses (“ Environmental Permits
”);
(iii) There are no past or
present conditions or circumstances, including but not limited to
pending changes in any Environmental Law or Environmental Permits,
that are likely to interfere with the conduct of the business of
the Partnership and its subsidiaries and each other Guarantor in
the manner now conducted or which would interfere with compliance
with any Environmental Law or Environmental Permits; and
(iv) There are no past or
present conditions, occurrences or circumstances at, or arising out
of, the businesses, assets and properties of the Partnership and
each of its subsidiaries and each other Guarantor or any business,
assets or properties formerly leased, operated or owned by the
Partnership or any of its subsidiaries or any other Guarantor,
including but not limited to on-site or off-site disposal or
release of any Hazardous Material (as defined below), which could
reasonably be expected to give rise to: (i) liabilities or
obligations under any Environmental Law; (ii) claims arising
under any Environmental Law, including, without limitation, claims
for personal injury, property damage, or damage to natural
resources; (iii) violations of, or failure to comply by the
Partnership or its subsidiaries or any other Guarantor with, any
Environmental Law; or (iv) fines or penalties arising under
any Environmental Law;
except in each case for any
noncompliance or conditions or circumstances that, singly or in the
aggregate, would not result in a Material Adverse
Effect.
(v) There is no civil,
criminal or administrative action, suit, demand, claim, hearing,
notice of violation, investigation, proceeding, notice or demand
letter or request for information pending or, to the knowledge of
either Issuer or any of the Subsidiaries, threatened against either
Issuer or any of the Subsidiaries under any Environmental
Law;
(vi) No lien, charge,
encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated or leased by either Issuer or any of the
Subsidiaries;
(vii) None of the Issuers or
the Subsidiaries has received notice that it has been identified as
a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (“ CERCLA ”), or any comparable state
law; and
18
(viii) Neither the Issuers
nor any of the Subsidiaries is subject to or party to any order,
judgment, decree, contract or agreement which obligates it to
conduct or finance any such action nor has any of them assumed by
contract or agreement any obligation or liability under
Environmental Law.
For purposes of this
Agreement, “ Environmental Law ” means the
common law and all applicable federal, state and local laws or
regulations, codes, ordinances, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder,
relating to pollution or protection of public or employee health
and safety, the environment or natural resource damages including,
without limitation, those relating to (i) emissions,
discharges, releases or threatened releases of Hazardous Material
in or into the environment (including, without limitation, ambient
air, surface water, groundwater, drinking water, land surface or
subsurface strata, and natural resources such as wetlands, flora
and fauna) or exposure thereto, (ii) the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport, handling or recycling of Hazardous Material,
(iii) underground or aboveground storage tanks and related
piping, and emissions, discharges, releases or threatened releases
therefrom. “ Hazardous Material ” means
a
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