<PAGE>
Exhibit 1.1
3,600,000 COMMON UNITS
ATLAS PIPELINE HOLDINGS, L.P.
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
_______ __, 2006
LEHMAN BROTHERS INC.
As Representative of the several Underwriters
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Atlas Pipeline Holdings, L.P., a Delaware limited partnership
(the "PARTNERSHIP"), proposes to sell 3,600,000 common units (the
"FIRM UNITS"),
representing limited partner interests in the Partnership (the
"COMMON UNITS").
In addition, the Partnership proposes to grant to the underwriters
named in
Schedule I hereto (the "UNDERWRITERS") an option to purchase up to
540,000
additional Common Units on the terms and for the purposes set forth
in Section 2
(the "OPTION UNITS"). The Firm Units and the Option Units, if
purchased, are
hereinafter collectively called the "UNITS."
This is to confirm the agreement among the Partnership and
Atlas Pipeline Holdings GP, LLC, a Delaware limited liability
company and the
general partner of the Partnership (the "GENERAL PARTNER," and
together with the
Partnership, the "ATLAS PARTIES"), and the Underwriters concerning
the purchase
of the Units from the Partnership by the Underwriters.
The Partnership owns 100% of the membership interests in Atlas
Pipeline Partners GP, LLC, a Delaware limited liability company
("APL GP"),
which serves as the sole general partner of Atlas Pipeline
Partners, L.P., a
publicly traded Delaware limited partnership ("APL") and the sole
general
partner of Atlas Pipeline Operating Partnership, L.P., a Delaware
limited
partnership (the "OPERATING PARTNERSHIP"). The Partnership is the
sole limited
partner of the Operating Partnership and the sole member of APC
Acquisition,
LLC, a Delaware limited liability company ("APC LLC"). APL GP owns
(i) 1,641,026
common units of APL, representing approximately 12.8% of the common
units of
APL, (ii) a 1.0101% general partner interest in APL, (iii) all of
the incentive
distribution rights in APL and (iv) a 1.0101% general partner
interest in 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"), and Atlas
Pipeline
Mid-Continent, LLC, a Delaware limited liability company
("MID-CONTINENT LLC"),
is a subsidiary of the Operating Partnership. 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, Ltd.,
a Texas
limited partnership ("ELK CITY"), the sole limited partner of Elk
City and the
sole member of Atlas Arkansas Pipeline LLC, an Oklahoma limited
liability
company ("ARKANSAS PIPELINE LLC"). For purposes of this Agreement,
each of Ohio
LLC, Pennsylvania LLC, New York LLC, APC LLC, Mid-Continent LLC,
Elk City, Elk
City GP and Arkansas Pipeline LLC is sometimes referred to herein
individually
as an "APL SUBSIDIARY" and collectively, as the "APL
SUBSIDIARIES."
<PAGE>
Atlas America, Inc., a Delaware corporation ("ATLAS AMERICA")
has formed the General Partner and contributed an aggregate of
$1,000 in cash to
it. The General Partner, Atlas Resources, Inc. ("RESOURCES"), AIC,
Inc. ("AIC"),
Viking Resources Corporation ("VIKING"), Atlas America, Resource
Energy, Inc.
("RESOURCE Energy") and REI-NY, Inc. ("REI-NY") (collectively, the
"GP OWNERS")
have formed the Partnership, to which they contributed, in the
aggregate, $1,000
in cash.
APL, the Operating Partnership and the APL Subsidiaries are
collectively referred to herein as the "APL PARTIES."
On [ ,] 2006, the Partnership, APL GP and the GP Owners
entered into the Contribution Agreement (the "CONTRIBUTION
AGREEMENT") pursuant
to which the following transactions will occur prior to the Initial
Delivery
Date (as hereinafter defined):
[To come]
It is understood and agreed to by all the parties hereto that
the Partnership was initially formed to acquire or indirectly own,
as of each
Delivery Date (as hereinafter defined):
(a) 1,641,026 common units of APL, representing approximately
12.8% of the common units of APL;
(b) a 1.0101% general partner interest in APL and a 1.0101%
general partner interest in the Operating Partnership; and
(c) the incentive distribution rights in APL;
each as more particularly described in the Prospectus (as
hereinafter defined)
and as acquired pursuant to the Contribution Agreement. The
transactions
contemplated by the Contribution Agreement are referred to herein
as the
"TRANSACTIONS."
It is further understood and agreed to by the parties hereto
that the following additional transactions will occur
substantially
contemporaneously with the Initial Delivery Date:
(i) The Partnership shall have amended and restated
its agreement of limited partnership (as so amended and
restated, the "PARTNERSHIP AGREEMENT") to conform to the
description thereof set forth in the Prospectus under the
caption "DESCRIPTION OF OUR PARTNERSHIP AGREEMENT";
2
<PAGE>
(ii) The General Partner shall have amended and
restated its limited liability company agreement of limited
partnership (as so amended and restated, the "GENERAL PARTNER
LLC AGREEMENT");
(iii) The Partnership, the General Partner, APL, APL
GP and their respective affiliates shall have entered into an
Omnibus Agreement (the "OMNIBUS AGREEMENT") consistent with
the description thereof set forth in the Prospectus under the
caption "Certain Relationships and Related Party
Transactions--Omnibus Agreement;" and
(iv) The Partnership shall enter into a $[___]
million credit facility (the "CREDIT FACILITY") with [___]
that provides for [___].
The "TRANSACTION DOCUMENTS" shall mean the Contribution Agreement,
the Omnibus
Agreement and the Credit Facility. The "ORGANIZATIONAL DOCUMENTS"
shall mean the
Partnership Agreement and the General Partner LLC Agreement. The
"OPERATIVE
AGREEMENTS" shall mean the Transaction Documents and the
Organizational
Documents collectively.
The Atlas Parties wish to confirm as follows their agreement
with you in connection with the purchase of the Units from the
Partnership by
the Underwriters.
1. Representations, Warranties and Agreements of the Atlas
Parties. The Atlas Parties jointly and severally represent, warrant
and agree
that:
(a) Registration; Definitions; No Stop Order. A registration
statement (Registration No. 333-130999) on Form S-1 relating to
the
Units has (i) been prepared by the Partnership in conformity with
the
requirements of the Securities Act of 1933, as amended (the
"SECURITIES
ACT"), and the rules and regulations (the "RULES AND REGULATIONS")
of
the Securities and Exchange Commission (the "COMMISSION")
thereunder;
(ii) been filed with the Commission under the Securities Act; and
(iii)
become effective under the Securities Act. Copies of such
registration
statement and any amendment thereto have been delivered by the
Partnership to you as the representative of the Underwriters
(the
"REPRESENTATIVE"). As used in this Agreement:
(i) "APPLICABLE TIME" means [_:__ [a][p].m.] (New
York City time) on the date of this Agreement;
(ii) "EFFECTIVE DATE" means each date and time as of
which such registration statement, any post-effective
amendment or amendments thereto and any registration statement
or amendments thereto filed pursuant to Rule 462(b) relating
to the offering of the Units was or is declared effective by
the Commission;
(iii) "ISSUER FREE WRITING PROSPECTUS" means each
"free writing prospectus" (as defined in Rule 405 of the Rules
and Regulations) prepared by or on behalf of the Partnership
or used or referred to by the Partnership in connection with
the offering of the Units;
3
<PAGE>
(iv) "PRELIMINARY PROSPECTUS" means any preliminary
prospectus relating to the Units included in such registration
statement or filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations;
(v) "PRICING DISCLOSURE PACKAGE" means, as of the
Applicable Time, the most recent Preliminary Prospectus,
together with each Issuer Free Writing Prospectus filed with
the Commission by the Partnership on or before the Applicable
Time;
(vi) "PROSPECTUS" means the final prospectus relating
to the Units, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations; and
(vii) "REGISTRATION STATEMENT" means such
registration statement, as amended as of the Effective Date,
including any Preliminary Prospectus or the Prospectus and all
exhibits to such registration statement.
Any reference to the "MOST RECENT PRELIMINARY PROSPECTUS" shall
be
deemed to refer to the latest Preliminary Prospectus included in
the
Registration Statement or filed pursuant to Rule 424(b) on or prior
to
the date hereof. The Commission has not issued any order preventing
or
suspending the use of any Preliminary Prospectus or the Prospectus
or
suspending the effectiveness of the Registration Statement, and
no
proceeding or examination for such purpose has been instituted
or
threatened by the Commission.
(b) Partnership Not an "Ineligible Issuer." The Partnership
was not at the time of initial filing of the Registration Statement
and
at the earliest time thereafter that the Partnership or another
offering participant made a bona fide offer (within the meaning of
Rule
164(h)(2) of the Rules and Regulations) of the Units, is not on
the
date hereof and will not be on the applicable Delivery Date an
"ineligible issuer" (as defined in Rule 405).
(c) Registration Statement and Prospectus Conform to the
Requirements of the Securities Act. The Registration Statement
conformed when filed and will conform in all material respects on
the
Effective Date and on the applicable Delivery Date, and any
amendment
to the Registration Statement filed after the date hereof will
conform
in all material respects when filed, to the requirements of the
Securities Act and the Rules and Regulations. The Preliminary
Prospectus conformed when filed, and the Prospectus will conform,
in
all material respects when filed with the Commission pursuant to
Rule
424(b) and on the applicable Delivery Date, to the requirements of
the
Securities Act and the Rules and Regulations.
(d) No Material Misstatements or Omissions in Registration
Statement. The Registration Statement did not, as of the
Effective
Date, 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; provided that no representation
or
warranty is made as to information contained in or omitted from
the
Registration Statement in reliance upon and in conformity with
written
information furnished to the Partnership through the Representative
by
or on behalf of any Underwriter specifically for inclusion
therein,
which information is specified in Section 8(e).
4
<PAGE>
(e) No Material Misstatements or Omissions in Prospectus. The
Prospectus will not, as of its date and on the applicable
Delivery
Date, contain an untrue statement of a material fact or omit to
state a
material fact necessary to make the statements therein, in the
light of
the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information
contained
in or omitted from the Prospectus in reliance upon and in
conformity
with written information furnished to the Partnership through
the
Representative by or on behalf of any Underwriter specifically
for
inclusion therein, which information is specified in Section
8(e).
(f)
No Material Misstatements or Omissions in Pricing
Disclosure Package. The Pricing Disclosure Package did not, as of
the
Applicable Time, contain an untrue statement of a material fact or
omit
to state a material fact necessary to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading , except that the price of the Units and disclosures
directly relating thereto and derived therefrom will be included on
the
cover page of the Prospectus or under the captions "The
Offering,"
"Summary Historical Consolidated and Pro Forma Financial Data,"
"Use of
Proceeds," "Capitalization," "Dilution," "Cash Distribution Policy
and
Restrictions on
Distributions," "Selected Historical Financial and
Operating Data" and "Underwriting" in the Prospectus; provided that
no
representation or warranty is made as to information contained in
or
omitted from the Pricing Disclosure Package in reliance upon and
in
conformity with written information furnished to the
Partnership
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in
Section 8(e).
(g) No Material Misstatements or Omissions in Issuer Free
Writing Prospectuses. Each Issuer Free Writing Prospectus
(including,
without limitation, any road show that is a free writing
prospectus
under Rule 433), when considered together with the Pricing
Disclosure
Package as of the Applicable Time, did not contain an untrue
statement
of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under
which
they were made, not misleading , except that the price of the Units
and
disclosures directly relating thereto and derived therefrom will
be
included on the cover page of the Prospectus or under the captions
"The
Offering," "Summary Historical Consolidated and Pro Forma
Financial
Data," "Use of Proceeds," "Capitalization," "Dilution," "Cash
Distribution Policy and Restrictions on Distributions,"
"Selected
Historical Financial and Operating Data" and "Underwriting" in
the
Prospectus.
(h) Issuer Free Writing Prospectuses Conform to the
Requirements of the Securities Act. Each Issuer Free Writing
Prospectus
conformed or will conform in all material respects to the
requirements
of the Securities Act and the Rules and Regulations on the date
of
first use, and the Partnership has complied with all prospectus
delivery and any
filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to the Rules and Regulations. The
Partnership has not made any offer relating to the Units that
would
constitute an Issuer Free Writing Prospectus without the prior
written
consent of the Representative. The Partnership has retained in
accordance with the Rules and Regulations all Issuer Free
Writing
Prospectuses that were not required to be filed pursuant to the
Rules
and Regulations. The Partnership has taken all actions necessary
so
that any "road show" (as defined in Rule 433 of the Rules and
Regulations) in connection with the offering of the Units will not
be
required to be filed pursuant to the Rules and Regulations.
5
<PAGE>
(i) Formation and Qualification. Each of the Atlas Parties and
the APL Parties has been duly formed and is validly existing and is
in
good standing as a limited partnership or limited liability
company, as
applicable, under the laws of its jurisdiction of formation and is
duly
qualified to do business and in good standing as a foreign
limited
partnership or foreign limited liability company, as applicable,
in
each jurisdiction in which its ownership or lease of property or
the
conduct of its business requires such qualification, except where
the
failure to be so qualified or in good standing would not, in
the
aggregate, reasonably be expected to have a material adverse effect
on
the condition (financial or otherwise), results of operations,
unitholders' equity, properties, business or prospects of the
Partnership and its subsidiaries (as hereinafter defined) taken as
a
whole (a "MATERIAL ADVERSE Effect"); each of the Atlas Parties and
the
APL Parties has all power and authority necessary to own or hold
its
properties and to conduct the businesses in which it is
engaged.
(j) Power and Authority to Act as a General Partner. The
General Partner has, and as of each Delivery Date will have,
full
limited liability company power and authority to act as general
partner
of the Partnership in all material respects as described in the
Registration Statement and Prospectus.
(k) Ownership of the General Partner. AIC owns 33.40% of the
issued and outstanding membership interests in the General
Partner,
Viking owns 23.56% of the issued and outstanding membership
interests
in the General Partner, Resource Energy owns 20.24% of the issued
and
outstanding membership interests in the General Partner, Atlas
America
owns 10.21% of the issued and outstanding membership interests in
the
General Partner, REI-NY owns 6.63% of the issued and
outstanding
membership interests in the General Partner, Resources owns 5.96%
of
the issued and outstanding membership interests in the General
Partner;
such membership interests have been duly authorized and validly
issued
in accordance with the General Partner LLC Agreement and are fully
paid
(to the extent required by the General Partner LLC Agreement)
and
nonassessable (except as such nonassessability may be affected
by
matters described in Section 18-607 of the Delaware Limited
Liability
Company Act (the "DELAWARE LLC ACT"); and the GP Owners are the
only
members of the General Partner and the GP Owners own such
membership
interests free and clear of all liens, encumbrances, security
interests, charges or claims.
(l)
Ownership of the General Partner Interest in the
Partnership. At each Delivery Date, the General Partner will be
the
sole general partner of the Partnership and will have a
non-economic
general partner interest in the Partnership; such non-economic
general
partner interest will be duly authorized and validly issued in
accordance with the Partnership Agreement, and the General Partner
will
own such non-economic general partner interest free and clear of
all
liens, encumbrances, security interests, charges or claims.
6
<PAGE>
(m) Ownership of the Management Units. At the Initial Delivery
Date, after giving effect to the Transactions and this offering
of
Units, AIC will own [_________] Common Units, representing a
[___]%
limited partner interest in the Partnership, Viking will own
[_________] Common Units, representing a [___]% limited partner
interest in the Partnership, Resource Energy will own [_______]
Common
Units, representing a [___]% limited partner interest in the
Partnership, Resources will own [_________] Common Units,
representing
a [___]% limited partner interest in the Partnership and REI-NY
will
own [_________] Common Units, representing a [___]% limited
partner
interest in the Partnership. At the Initial Delivery Date, after
giving
effect to the Transactions and this offering of Units, AIC,
Viking,
Resource Energy, Resources and REI-NY will collectively own
[_________]
Common Units, representing a [___]% limited partner interest in
the
Partnership (the "MANAGEMENT UNITS"). Such limited partner
interests
will be duly authorized and validly issued in accordance with
the
Partnership Agreement, and AIC, Viking, Resource Energy, Resources
and
REI-NY will own their respective limited partner interests free
and
clear of all liens, encumbrances, security interests, charges
or
claims.
(n) Ownership of APL GP by the Partnership. At each Delivery
Date, the Partnership will be the sole member of APL GP with a
100%
membership interest in APL GP; such membership interest has been
duly
authorized and validly issued in accordance with the limited
liability
company agreement of APL GP (the "APL GP LLC AGREEMENT"), and is
fully
paid (to the extent required under APL GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected
by
matters described in Section 18-607 of the Delaware LLC Act); and
the
Partnership owns such membership interest free and clear of all
liens,
encumbrances, security interests, charges or claims.
(o) Ownership of the General Partner Interests in APL. APL GP
is the sole general partner of APL with a 1.0101% general
partner
interest in APL; such general partner interest has been duly
authorized
and validly issued in accordance with the Amended and Restated
Agreement of Limited Partnership of APL (the "APL LIMITED
PARTNERSHIP
AGREEMENT"); and APL GP owns such general partner interest free
and
clear of all liens, encumbrances, security interests, charges
or
claims.
(p) Ownership of APL Common Units by APL GP. At each Delivery
Date, APL GP will own 1,641,026 APL common units representing a
limited
partner interest in APL; such limited partner interest has been
duly
authorized and validly issued in accordance with the APL
Limited
Partnership Agreement and is fully paid (to the extent required
under
the
APL Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Section
17-607
of the Delaware Revised Uniform Limited Partnership Act (the
"DELAWARE
LP ACT")); and APL GP will own such limited partner interest free
and
clear of all liens, encumbrances, security interests, charges
or
claims.
7
<PAGE>
(q) Ownership of the General Partner Interests in the
Operating Partnership. APL GP is the sole general partner of
the
Operating Partnership with 1.0101% general partner interest in
the
Operating Partnership; such general partner 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 APL GP owns such general partner
interest
free and clear of all liens, encumbrances, security interests,
charges
or claims.
(r) Ownership of the Limited Partner Interests in the
Operating Partnership. APL is the sole limited partner of the
Operating
Partnership with a 98.9899% limited partner interest in the
Operating
Partnership; such limited partner interest has 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 matters described in Section
17-607
of the Delaware LP Act); and APL owns such limited partner
interest
free and clear of all liens, encumbrances, security interests,
charges
or claims.
(s) Ownership of the APL Subsidiaries.
(A) The Operating Partnership owns 100% of the membership
interests in each of Ohio LLC, Pennsylvania LLC and New
York LLC,; such membership interests have been duly
authorized and validly issued in accordance with the
applicable certificate of formation and limited liability
company agreement of each of Ohio LLC, Pennsylvania LLC
and New York LLC (collectively, the "OPERATING
AGREEMENTS"), and are fully paid (to the extent required
under the
applicable Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 8931 of the Pennsylvania Limited
Liability Company Law of 1994, as amended); and the
Operating Partnership owns such membership interests free
and clear of all liens, encumbrances, security interests,
charges or claims;
(B) The Operating Partnership owns 100% of the membership
interests in Mid-Continent LLC; such membership interests
have been duly authorized and validly issued in accordance
with the certificate of formation and limited liability
company agreement of Mid-Continent LLC (the "Mid-Continent
Operating Agreements") and are fully paid (to the extent
required under the Mid-Continent Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act), as
the case may be; and the Operating Partnership owns such
membership interests free and clear of all liens,
encumbrances, security interests, charges or claims;
(C) The Partnership owns 100% of the membership interests
in APC LLC; such membership interests have been duly
authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of APC LLC (the "APC LLC OPERATING AGREEMENTS"),
and are fully paid (to the extent required under the APC
LLC Operating Agreements) and nonassessable (except as
such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act); and the Partnership owns such
membership interests free and clear of all liens,
encumbrances, security interests, charges or claims;
8
<PAGE>
(D) Mid-Continent owns 100% of the membership interests in
Elk City GP; such membership interests have been duly
authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of Elk City GP (the "ELK CITY GP OPERATING
AGREEMENTS"), and are fully paid (to the extent required
under the Elk City GP Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and
Mid-Continent owns such membership interests free and
clear of all liens, encumbrances, security interests,
charges or claims;
(E) Mid-Continent owns 100% of the membership interests in
Arkansas Pipeline LLC; such membership interests have been
duly authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of Arkansas Pipeline LLC (the "ARKANSAS PIPELINE
LLC OPERATING AGREEMENTS"), and are fully paid (to the
extent required under the Arkansas Pipeline LLC Operating
Agreements) and nonassessable (except as such
nonassessability may be affected by Section 18-2054.4(H)
of the Oklahoma Limited Liability Company Act); and
Mid-Continent owns such membership interests free and
clear of all liens, encumbrances, security interests,
charges or claims;
(F) Mid-Continent owns 100% of the limited partner
interests in Elk City; such limited partner interests have
been duly authorized and validly issued in accordance with
the agreement of limited partnership of Elk City (the "ELK
CITY PARTNERSHIP AGREEMENT"), and are fully paid (to the
extent required under the Elk City Partnership Agreement)
and nonassessable (except as such nonassessability may be
affected by Section 6.07 of the Texas Revised Limited
Partnership Act); and Mid-Continent owns such limited
partner interests free and clear of all liens,
encumbrances, security interests, charges or claims;
(G) Elk City GP is the sole general partner of Elk City
with a .01% general
partner interest in Elk City; such
interest has been duly authorized and validly issued in
accordance with the Elk City Partnership Agreement, and
Elk City GP owns such general partner interest free and
clear of all liens, encumbrances, security interests,
charges or claims.
(t) No Other Subsidiaries. Except as disclosed above and other
than its ownership of its non-economic general partner interest in
the
Partnership, the General Partner does not own, and at each
Delivery
Date will not own, directly or indirectly, any equity or long-term
debt
securities of any corporation, partnership, limited liability
company,
joint venture, association or other entity. Other than its
ownership of
(1) a 1.0101% general partner interest in APL, held through a
100%
ownership interest in APL GP; (2) a 1.0101% general partner
interest in
the Operating Partnership, held through a 100% ownership interest
in
APL GP; (3) 1,641,026 common units of APL, representing
approximately
13.1% of the common units of APL, held through a 100% ownership
interest in APL GP; and (4) all of the incentive distribution
rights in
APL, held through a 100% ownership interest in APL GP, the
Partnership
does not directly own, and at each Delivery Date will not directly
own,
any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association
or
other entity.
9
<PAGE>
(u) Capitalization. At the Initial Delivery Date, after giving
effect to the Offering, the issued and outstanding Common Units of
the
Partnership will consist of 21,100,000 Common Units (including
17,500,000 Management Units). Other than the Management Units,
the
Units will be the only limited partner interests of the
Partnership
issued or outstanding at each Delivery Date.
(v) Valid Issuance of the Units. At the Initial Delivery Date,
there will be issued to the Underwriters the Firm Units (assuming
no
purchase by the Underwriters of Option Units on the Initial
Delivery
Date); at the Initial Delivery Date or the Option Unit Delivery
Date
(as defined in Section 4 hereof), as the case may be, the Firm
Units or
the Option Units, as the case may be, and the limited partner
interests
represented thereby, will be duly and validly authorized in
accordance
with the Partnership Agreement and, when issued and delivered to
the
Underwriters against payment therefor in accordance with this
Agreement, will be duly and 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
Section
17-607 of the Delaware LP Act).
(w) No Preemptive Rights, Registration Rights or Options.
Except as identified in the most recent Preliminary Prospectus,
there
are no (i)
preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of any
equity
securities of, any of the Atlas Parties or APL Parties; (ii)
contracts,
agreements or understandings between any of the Atlas Parties or
the
APL Parties and any person granting such person the right to
require
the Partnership to file a registration statement under the
Securities
Act with respect to any securities of the Partnership owned or to
be
owned by such person or to require the Partnership to include
such
securities in the securities registered pursuant to the
Registration
Statement or in any securities being registered pursuant to any
other
registration statement filed by the Partnership under the
Securities
Act or (iii) outstanding options or warrants to purchase any
securities
of any of the Atlas Parties or the APL Parties.
(x) Authority and Authorization. The Partnership has all
requisite partnership power and authority to issue, sell and
deliver
(i) the Units, in accordance with and upon the terms and conditions
set
forth in this Agreement and the Partnership Agreement and (ii)
the
Management Units, in accordance with and upon the terms and
conditions
set forth in the Partnership Agreement and the Contribution
Agreement.
At each Delivery Date, all corporate, partnership and limited
liability
company action, as the case may be, required to be taken by any of
the
Atlas Parties or the APL Parties or any of their respective
unitholders, stockholders, members or partners for the
authorization,
issuance, sale and delivery of the Units and the Management Units,
the
execution and delivery of the Operative Agreements and the
consummation
of the transactions (including the Transactions) contemplated by
this
Agreement and the Operative Agreements, shall have been validly
taken.
10
<PAGE>
(y) Authorization, Execution and Delivery of this Agreement.
This Agreement has been duly authorized and validly executed
and
delivered by each of the Atlas Parties.
(z) Authorization, Execution, Delivery and Enforceability of
Certain Agreements. At or before the Initial Delivery Date:
1. each
Transaction Document will have been duly
authorized, executed and delivered by the parties
thereto and each will be a valid and legally binding
agreement of the parties thereto, enforceable
against such parties in accordance with its terms;
2. the
Partnership Agreement will have been duly
authorized, executed and delivered by the General
Partner and will be a valid and legally binding
agreement of the General Partner, enforceable
against the General Partner in accordance with its
terms; and
3. the
General Partner LLC Agreement will have been
duly authorized, executed and delivered by Atlas
America and will be a valid and legally binding
agreement of Atlas America, enforceable against
Atlas America in accordance with its terms;
provided that, with respect to each agreement described in this
Section
1(z), 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); provided
further;
that the indemnity, contribution and exoneration provisions
contained
in any of such agreements may be limited by applicable laws and
public
policy.
(aa) Authorization, Execution and Enforceability of Certain
Agreements. As of each Delivery Date:
(i) the APL GP LLC Agreement has been duly
authorized, executed and delivered by the Partnership as the
sole member of APL GP, and is a valid and legally binding
agreement of the Partnership, enforceable against the
Partnership in accordance with its terms;
(ii) the APL Limited Partnership Agreement has been
duly authorized, executed and delivered by APL GP and is a
valid and legally binding agreement of APL GP, enforceable
against APL GP in accordance with its terms; and
11
<PAGE>
(iii) the Operating Partnership Agreement has been
duly authorized, executed and delivered by each of APL GP and
APL, and is a valid and legally binding agreement of each of
them, enforceable against each of them in accordance with its
terms;
provided that, with respect to each agreement described in this
Section
1(aa), 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); provided
further;
that the indemnity, contribution and exoneration provisions
contained
in any of such agreements may be limited by applicable laws and
public
policy.
(bb) Sufficiency of the Contribution Agreement. The
Contribution Agreement will be legally sufficient to transfer or
convey
to the Partnership all interests in APL GP as contemplated by the
most
recent Preliminary Prospectus and the Prospectus, subject to
the
conditions, reservations and limitations contained in the
Contribution
Agreement and those set forth in the most recent Preliminary
Prospectus
and the Prospectus.
(cc) No Conflicts. None of the (i) offering, issuance or sale
by the Partnership of the Units, (ii) the execution, delivery
and
performance of this Agreement by the Atlas Parties and the
Operative
Agreements by the Atlas Parties and APL Parties that are
parties
thereto or (iii) the consummation of any other transactions
contemplated by this Agreement or the Operative Agreements
(including
the Transactions) or the fulfillment of the terms hereof or
thereof,
conflict with or will conflict with, result in a breach or
violation
of, or a default (or an event that, with notice or lapse of time
or
both, would constitute such a default) under, or imposition of
any
lien, charge or encumbrance upon any property or assets of any of
the
Atlas Parties or the APL Parties pursuant to (i) the certificate
of
limited partnership or agreement of limited partnership,
certificate of
formation or limited liability company agreement, the charter
or
bylaws, or any other organizational documents of any of the
Atlas
Parties or APL Parties, (ii) the terms of any indenture,
contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other
agreement, obligation, condition, covenant or instrument to which
any
of the Atlas Parties or APL Parties is a party or by which any of
them
are bound or to which any of their respective properties is subject
or
(iii) any statute, law, rule or regulation, or any judgment, order
or
decrees of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction
over any of the Atlas Parties or APL Parties or any of their
properties
or assets, except, in the case of clauses (ii) and (iii), for
such
conflicts, breaches, violations, defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, have
a
Material Adverse Effect.
(dd) No Default. None of the Atlas Parties or the APL Parties
(i) is in violation of its certificate of limited partnership
or
agreement of limited partnership, certificate of formation or
limited
liability company agreement or other organizational or
governing
documents; (ii) is in breach or default in any material respect,
and no
event has occurred which, with notice or lapse of time or both,
would
constitute such a breach or default, in the due performance or
observance of any term, covenant or condition contained in any
material
indenture, mortgage, deed of trust, loan agreement or other
agreement
or instrument to which it is a party or by which it is bound or
to
which any of its properties or assets is subject, (iii) is in
violation
in any material respect of any law, ordinance, governmental
rule,
regulation or court decree to which it or its property or assets
may be
subject or (iv) has failed to obtain any material license,
permit,
certificate, franchise or other governmental or regulatory
authorization or permit necessary to the ownership or leasing of
its
property or to the conduct of its business, except in the case
of
clauses (ii) and (iv) as would not have a material adverse effect
on
the condition (financial or other), business, assets, results
of
operations of the Atlas Parties, taken as a whole.
12
<PAGE>
(ee) No Consents. 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 Atlas Parties of
the
Transactions contemplated by this Agreement except (i) such
permits,
consents, approvals and similar authorizations required under
the
Securities 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 Delivery 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) Conformity of Units to Description in the Most Recent
Preliminary Prospectus. The Units, when issued and delivered in
accordance with the terms of the Partnership Agreement and this
Agreement against payment therefor as provided therein and herein,
will
conform in all material respects to the description thereof
contained
in the most recent Preliminary Prospectus.
(gg) No Integration. The Partnership has not sold or issued
any
securities that would be integrated with the offering of the
Units
contemplated by this Agreement pursuant to the Securities Act,
the
Rules and Regulations or the interpretations thereof by the
Commission.
(hh) No Adverse Change. None of the Atlas Parties or the APL
Parties has sustained, since the date of the latest audited
financial
statements included in the most recent Preliminary Prospectus, any
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, order or decree, and
since
such date, there has not been any change in the capitalization
or
long-term debt of any of the Atlas Parties or the APL Parties or
any
adverse change, or any development involving a prospective
adverse
change, in or affecting the condition (financial or otherwise),
results
of operations, unitholders' equity, properties, management,
business or
prospects of any of the Atlas Parties or the APL Parties taken as
a
whole, in each case except as would not, in the aggregate,
reasonably
be expected to have a Material Adverse Effect. Since the date of
the
latest audited financial statements included in the Prospectus,
none of
the Atlas Parties or the APL Parties has incurred any liability
or
obligation, direct, indirect or contingent, or entered into any
transactions, not in the ordinary course of business, that,
individually or in the aggregate, is material to the Atlas Parties
or
the APL Parties, taken as a whole, otherwise than as set forth
or
contemplated in the Prospectus.
13
<PAGE>
(ii) Conduct of Business. Since the date as of which
information is given in the most recent Preliminary Prospectus,
none of
the Atlas Parties or the APL Parties have (i) incurred any
liability or
obligation, direct or contingent, other than liabilities and
obligations that were incurred in the ordinary course of business,
(ii)
entered into any material transaction not in the ordinary course
of
business or (iii) declared, paid or made any dividend or
distribution
on any class of security.
(jj) Financial Statements. The historical financial statements
(including the related notes and supporting schedules) included in
the
most recent Preliminary Prospectus (or any amendment or
supplement
thereto) comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and
present
fairly in all material respects the financial condition, results
of
operations and cash flows of the entities purported to be shown
thereby
at the dates and for the periods indicated and have been prepared
in
conformity with accounting principles generally accepted in the
United
States applied on a consistent basis throughout the periods
involved.
The summary historical consolidated and pro forma financial
data
included in the most recent Preliminary Prospectus (and any
amendment
or supplement thereto) under the caption "Summary--Summary
Historical
Consolidated and Pro Forma Financial Data" and the selected
historical
and operating data set forth under the caption "Selected Historical
and
Operating Data" is accurately presented in all material respects
and
prepared on a basis consistent with the audited and unaudited
historical financial statements and pro forma financial statements,
as
applicable, from which it has been derived.
(kk) Pro Forma Financial Statements. The pro forma financial
statements included in the most recent Preliminary Prospectus (and
any
amendment or supplement thereto) comply as to form in all
material
respects with the applicable requirements of Regulation S-X and
have
been prepared in accordance with the Commission's rules and
guidelines
with respect to pro forma financial statements and have been
properly
computed on the bases described therein. The assumptions used in
the
preparation of such pro forma financial statements are reasonable
and
the adjustments used therein are appropriate to give effect to
the
transactions or circumstances referred to therein. The other
historical
financial and statistical information and data included in the
most
recent Preliminary Prospectus are, in all material respects,
fairly
presented.
(ll) Statistical and Market-Related Data. The statistical and
market-related data included under the captions "Business" and
"Management's Discussion and Analysis of Financial Condition
and
Results of Operations" in the most recent Preliminary Prospectus
and
the consolidated financial statements of the Partnership, the
General
Partner and APL GP and their respective subsidiaries included in
the
most recent Preliminary Prospectus are based on or derived from
sources
that the Atlas Parties believe to be reliable and accurate in
all
material respects and the Partnership has obtained the written
consent
to the use of such data from such sources to the extent
required.
14
<PAGE>
(mm) Independent Public Accountants.
(A) Grant Thornton LLP, who have certified certain
financial statements of the General Partner, the
Partnership and APL GP, and their respective consolidated
subsidiaries, whose report appears in the most recent
Preliminary Prospectus and the Prospectus and who have
delivered the initial letter referred to in Section 7(g))
hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(B) Ernst & Young LLP, who have certified certain
financial statements of Enogex Arkansas Pipeline
Corporation, ETC Oklahoma Pipeline, Ltd., the Elk City
System (a division of Aquila Gas Processing Corporation)
and Spectrum Field Services, Inc., whose report appears
in the most recent Preliminary Prospectus and the
Prospectus and who have delivered the initial letter
referred to in Section 7(g)) hereof, are independent
public accountants as required by the Securities Act and
the Rules and Regulations.
(nn) Title to Properties. At each Delivery Date, each of the
Atlas Parties and APL Parties will have (A) good and marketable
title
to all of the properties and assets described in the most
recent
Preliminary Prospectus as owned by it, free and clear of all
liens,
claims, security interests, charges, encumbrances, defects and
restrictions (except for (i) taxes not yet payable, (ii) as
described
in the most recent Preliminary Prospectus and the financial
statements
included therein 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). All assets held under lease or license by
any
Atlas Party or APL Party are held under valid, subsisting and
enforceable leases or licenses, 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 most
recent
Preliminary Prospectus or (ii) that would not have a material
adverse
effect on the condition (financial or other), business,
prospects,
properties, securityholders' equity or results of operations of
the
Atlas Parties, taken as a whole.
(oo) Rights-of Way. At each Delivery Date, each of the Atlas
Parties and APL Parties will have 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 most
recent
Preliminary Prospectus, except for (i) qualifications, reservations
and
encumbrances as may be set forth in the most recent Preliminary
Prospectus which are not reasonably expected to have a material
adverse
effect upon the ability of the Atlas Parties and the APL Parties,
taken
as a whole, to conduct their businesses in all material respects
as
currently conducted and as contemplated by the most recent
Preliminary
Prospectus to be conducted, and (ii) such rights-of-way the absence
of
which would not, individually or in the aggregate, result in a
Material
Adverse Effect; other than as set forth in the most recent
Preliminary
Prospectus, each of the Atlas Parties and APL Parties has fulfilled
and
performed all its material obligations with respect to such
rights-of-way and no event has occurred that allows, or after
notice or
lapse of time would allow, revocation or termination thereof or
would
result 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 (x) have a material adverse effect upon
the
ability of the Atlas Parties and the APL Parties, taken as a whole,
to
conduct their businesses in all material respects as currently
conducted and as contemplated by the most recent Preliminary
Prospectus
to be conducted or (y) individually or in the aggregate, result in
a
Material Adverse Effect; and, except as described in the most
recent
Preliminary Prospectus, none of such rights-of-way contains any
restriction that is materially burdensome to the Atlas Parties or
the
APL Parties considered as a whole.
15
<PAGE>
(pp) Insurance. Each of the Atlas Parties and APL Parties
carry, or are covered by, insurance in such amounts and covering
such
risks as is adequate for the conduct of their respective businesses
and
the value of their respective properties and as is customary
for
businesses engaged in similar businesses in similar industries,
and
none of the Atlas Parties or APL Parties has received notice of
cancellation or non-renewal of such insurance.
(qq) Investment Company. None of the Atlas Parties or the APL
Parties is, and as of the applicable Delivery Date and, after
giving
effect to the offer and sale of the Units and the application of
the
proceeds therefrom as described under "Use of Proceeds" in the
most
recent Preliminary Prospectus and the Prospectus, none of them will
be,
an "investment company" or a company "controlled by" an
"investment
company" within the meaning of such term under the Investment
Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the
rules
and regulations
of the Commission thereunder.
(rr) Litigation. Except as described in the most recent
Preliminary 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
Atlas Parties, threatened, to which any of the Atlas Parties or the
APL
Parties is or may be a party or to which the business or property
of
any of the Atlas Parties or the APL Parties is or may be subject,
(ii)
no statute, rule, regulation or order that has been enacted,
adopted or
issued by any governmental agency 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
Atlas
Parties or the APL Parties is or may be subject, that, in the case
of
clauses (i), (ii) a
