Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Pre-Effective Amendment to Registration Statement HTML 3.40M
(General Form)
21: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 118K
2: EX-1.(A) Underwriting Agreement HTML 301K
3: EX-4.(D) Instrument Defining the Rights of Security Holders HTML 15K
4: EX-4.(E) Instrument Defining the Rights of Security Holders HTML 15K
5: EX-5 Opinion re: Legality HTML 19K
6: EX-8 Opinion re: Tax Matters HTML 80K
7: EX-10 Material Contract HTML 54K
8: EX-10.(H)(1) Material Contract HTML 30K
9: EX-10.(H)(2) Material Contract HTML 26K
10: EX-10.(H)(3) Material Contract HTML 48K
11: EX-10.(O) Material Contract HTML 52K
12: EX-10.(Q) Material Contract HTML 121K
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15: EX-10.(T) Material Contract HTML 33K
16: EX-10.(U) Material Contract HTML 35K
17: EX-10.(W) Material Contract HTML 1.05M
18: EX-10.(X) Material Contract HTML 55K
19: EX-23.(A) Consent of Experts or Counsel HTML 12K
20: EX-24 Power of Attorney HTML 16K
This
Third Amendment to the Gas Purchase Agreement (this “Amendment”)
is
made and entered into on January 5,
2007 to
be effective as of December 18, 2006 (the “Effective
Date”)
by and
among Atlas America, Inc. (into which Atlas Energy Group, Inc. was previously
merged) (“Atlas
DE”),
Viking Resources, LLC (f/k/a Viking Resources Corporation) (“Viking”).
Atlas
Resources, LLC (f/k/a Atlas Resources, Inc.) (“Atlas
Resources”),
Resource Energy, LLC (f/k/a Resource Energy, Inc.) (“Resource
Energy”
and
together with Viking and Atlas Resources, the “ATN
Subsidiaries”),
and
Hess Corporation (“Hess”).
This
Amendment modifies, supplements, forms part of, and amends that certain Gas
Purchase Agreement with FirstEnergy Solutions Corp. dated as of March 31, 1999
(the “1999 Agreement”), as amended on February 1, 2001 (the “2001 Amendment”)
and on July 16, 2003 (the “2003 Amendment”), and assigned to Hess by that
Assignment of Transactions dated April 1, 2005 (the “2005 Assignment”)
(collectively, the “Base
Contract”).
Capitalized terms used in this Amendment that are not herein defined will have
the meanings ascribed to them in the Base Contract. In the event of a conflict
between the terms of this Amendment and the Base Contract, the terms of this
Amendment shall apply.
WHEREAS,
Atlas DE and the ATN Subsidiaries collectively constitute the Seller under
the
Base Contract;
WHEREAS,
Atlas DE has transferred all of its natural gas and oil production and
development assets to Atlas Energy Resources, LLC (“ATN”)
and
its subsidiaries in connection with the initial public offering of ATN and
Atlas
DE wishes to be released from its rights, duties and interests under the Base
Contract as of the Effective Date, and Hess has agreed to such a release,
provided that the ATN Subsidiaries remain jointly and severally liable for
all
obligations of Seller under the Base Contract;
NOW,
THEREFORE, for and in consideration of the premises and mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be bound hereby the Parties
hereby agree as follows;
I.
WAIVER AND CONFIRMATION OF CONTINUING JOINT AND SEVERAL
LIABILITY
OF THE ATN SUBSIDIARIES
1.1
Waiver.
Effective as of the Effective Date, Atlas DE does hereby waive all of its right,
title and interest in and to the Base Contract and all transactions thereunder,
such waiver to constitute the inurement of the same to the exclusive benefit
of
the ATN Subsidiaries.
1.2
Confirmation
of Joint and Several Liability.
The ATN
Subsidiaries, shall, as of the Effective Date, be the remaining parties that
collectively constitute the Seller under the Base Contract. For the avoidance
of
doubt, the ATN Subsidiaries hereby confirm the joint and several nature of
their
obligations as Seller under the Base Contract and all transactions thereunder,
including in respect of any obligations incurred by Atlas DE under the Base
Contract and any transactions thereunder. Such obligations include those to
pay,
discharge or perform, as appropriate, the Base Contract and all transactions
thereunder, such Base Contract constituting, for
the
avoidance of any doubt, the joint and several debts, liabilities and obligations
of the ATN Subsidiaries, from and after the Effective Date.
1.3Release
and Discharge.
Upon
the Effective Date, Atlas DE will be released from any liability or obligation
under the Base Contract and any transaction thereunder, that arises or accrues
after the Effective Date.
1.4Consent
to Release.
Hess
consents to the release described in Section 1.4. Further, Hess hereby releases
and agrees to the cancellation of (i) the Guaranty of Trading Obligations,
dated
October 20, 2005, from Atlas DE and (ii) the commercial letter of credit in
the
amount of $1,000,000 deposited with Hess.
1.5Billing
and Payment.
Amounts
due from Buyer for the calendar month December 2006 and thereafter shall be
remitted to Atlas Energy Operating Company, LLC, as agent for
Seller.
II.
AMENDMENTS TO THE 1999 AGREEMENT
2.1
Section
10. NOTICES.
Section
10 shall be deleted in its entirety and replaced with the following in lieu
thereof:
“10.
NOTICES:
Whenever
under the terms of this Agreement, any notice is required or permitted to be
given by one party to the other, it shall be given in writing and shall be
effective upon receipt if sent by express courier or mailed, postage prepaid,
to
the parties at the address set forth below, provided that confirmations and
invoices may be sent via facsimile:
2.2Section
15. COMPLETE AGREEMENT.
Section
15 shall be deleted in its entirety and replaced with the following in lieu
thereof:
“15.
COMPLETE AGREEMENT:
This
Agreement sets forth the entire understanding and agreement between the parties
as to matters covered herein and supersedes any other prior understanding,
agreement or statement (written or oral) between the parties as to matters
covered herein.”
2.3Financial
Responsibility.
The
following shall be added as a new Section 16:
“16.
FINANCIAL RESPONSIBILITY.
(A)
In
the event either party shall:
(i)
Make
an assignment or any general arrangement for the benefit of
creditors;
(ii)
Fail
to perform a payment or delivery obligation to the other party on
or
before the second Business Day following the date written notice
is
received;
(iii)
Fail
to provide adequate assurance of its ability to perform all of its
outstanding obligations hereunder on or before the second Business
Day
after a request for such assurance is made by the other party when
such
party has reasonable grounds for
insecurity;
(iv)
File
a petition or otherwise commence, authorize, or acquiesce in the
commencement of a proceeding or cause under any bankruptcy or similar
law
for the protection of creditors or have such petition filed or proceeding
commenced against it;
(v)
Otherwise
become bankrupt or insolvent (however evidenced);
(vi)
Become
unable to pay its debts as they fall due;
or
(vii)
Fail
to perform any other material covenant or obligation set forth in
this
Agreement and not expressly covered by this Section, if such failure
is
not remedied within three (3) Business Days after written
notice;
then
such
event shall constitute an Event of Default.
(B)
Upon
the occurrence of an Event of Default, the other party (the
“Non-Defaulting Party”) shall have the right to either withhold and/or
suspendpayments or the making or receiving of deliveries, or terminate
the
Agreement, in addition to any and all other remedies available under
the
Agreement.
Each
party reserves to itself all rights, set-offs, counterclaims, and
other
defenses that it is or may be entitled to arising from or out of
the
Agreement.
(D)
In
the event that the Non-Defaulting Party terminates this Agreement
pursuant
to this Article, the Non-Defaulting Party shall have the right to
designate an early termination date (“Early Termination Date”) as any date
on or after the event of default under this Article. Upon the Early
Termination Date, the Non-Defaulting Party shall have the right to
liquidate all Transactions under this Agreement (including any portion
of
a Transaction not yet fully delivered) then outstanding
by:
(i)
Closing
out each Transaction being liquidated at its Market Value, as defined
below, so that each such Transaction is canceled and a settlement
payment
in an amount equal to the difference between such Market Value and
the
Contract Value, as defined below, of such Transaction shall be due
to the
Buyer under the Transaction if such Market Value exceeds the Contract
Value and to the Seller if the opposite is the case, in each case
discounted, where appropriate, to present value in a commercially
reasonable manner as of the Early Termination Date;
and
(ii)
Setting
off or aggregating, as appropriate, any or all settlement payments
(discounted as appropriate) and (at the election of the non-defaulting
party) any or all other amounts owing between the parties under this
Agreement, as well as under any other agreement between the parties,
so
that all such amounts are aggregated and/or netted to a single liquidated
amount payable by one party to the other. The net amount due any
such
liquidation shall be paid by the close of business on the Business
Day
following the Early Termination
Date.
For
these
purposes, “Contract Value” means the amount of the Gas remaining to be delivered
or purchased under a Transaction multiplied by the Commodity Charge, and “Market
Value” means the amount of Gas remaining to be delivered or purchased under a
Transaction multiplied by the Replacement Price. For purposes of this Article,
“Replacement Price” means the relevant market price for the remaining term
either quoted by a bona fide third party offer or which are reasonably expected
to be available in the market under a replacement contract for such Transaction.
The Non-Defaulting Party may consider, among other valuations any or all of
the
settlement prices of NYMEX Gas futures contracts, quotations from leading
dealers in gas swap contracts and other bona fide third party
offers.
Except
as provided in this Agreement, neither party shall be responsible
for
punitive, incidental, special or consequential
damages.
(F)
The
parties agree that a Transaction under this Article shall constitute
a
“forward contract” within the meaning of the United States Bankruptcy
Code.
(G)
The
Non-Defaulting Party shall give notice that liquidation pursuant
to this
Article has occurred to the defaulting party no later than the Business
Day following such liquidation, provided that failure to give such
notice
shall not affect the validity or enforceability of the liquidation
or give
rise to any claim by the defaulting party against the non-defaulting
party.
(H)
In
addition to all other amounts payable hereunder, the Defaulting Party
shall reimburse the Non-Defaulting Party, on demand, for reasonable
out-of-pocket expenses, including, without limitation, attorneys'
fees and
expenses incurred by the other party during the occurrence and
continuation of an Event of Default in connection with the enforcement
or
the preservation of its rights in respect hereof, together with interest
on any unpaid amount at the rate specified in Section 6 of this
Agreement.
2.4Business
Day.
The
following shall be added as a new Section 17;
“17.
“BUSINESS DAY”
shall
mean any day except Saturday, Sunday or Federal Reserve Bank
holidays.”
2.5Payment
Netting.
The
following shall be added as a new Section 18:
“18.
PAYMENT NETTING.
If on
any date any amounts would otherwise be payable in the same currency in respect
of any Transactions by each Party to the other, then, on such date, each Party's
obligation to make payment of any such amount will be automatically satisfied
and discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been
payable by the other party, replaced by an obligation upon the party by whom
the
larger aggregate amount would have been payable to pay to the other party the
excess of the larger aggregate amount over the smaller aggregate
amount.”
III.
AMENDMENTS TO THE 2003 AMENDMENT
3.1
Sections 2 and 3, Exhibit A and Annexes 1 and 2 thereto shall be deleted in
their entirety.
IV.
MISCELLANEOUS
4.1
Warranties.
Each
Party represents and warrants to the others that it has the corporate authority
to execute, deliver and perform this Amendment and has taken all actions
necessary to secure all necessary approvals required to be secured in connection
therewith. The execution,
delivery and performance of this Amendment and the Base Contract have been
duly
authorized by all necessary corporate action.
4.2No
Third Party Benefit.
Nothing
contained in this Amendment, express or implied, is intended to or shall be
construed to confer upon or give any person, firm, or corporation, other than
the Parties and their respective permitted successors and assigns, any remedy
or
claim under, or by reason of, this Amendment, or any term, covenant or condition
hereof. All conditions, promises and agreements contained in this Amendment
shall be for the sole and exclusive benefit of the Parties and their respective
permitted successors and assigns.
4.3Entire
Agreement.
This
Amendment and the Base Contract set forth the entire understanding and agreement
between the Parties as to matters covered herein and therein and supersedes
any
other prior understanding, agreement or statement (written or oral) between
the
Parties as to matters covered herein and therein.
4.4Headings.
The
headings contained in this Amendment are for convenience of reference only
and
shall not affect, in any way, the meaning or interpretation of this
Amendment.
4.5Amendments;
Waivers.
To be binding, any amendment of this Amendment must be effected by an instrument
in writing signed by all of the Parties. Rights hereunder shall not be waived,
except pursuant to a writing signed by the Party against which enforcement of
the waiver is sought.
4.6Expenses
of Negotiation.
All
costs and expenses incurred in connection with this Amendment are to be borne
by
the Party incurring such costs.
4.7Severability.
It is
the intention of the Parties hereto that whenever possible, each provision
of
the Base Contract and this Amendment will be interpreted in such manner as
to be
effective and valid under applicable law, but that if any provision of the
Base
Contract or this Amendment, as the case may be, is held to be invalid, illegal
or unenforceable in any respect under any applicable law, such invalidity,
illegality or unenforceability will not affect any other provision, and the
Base
Contract and this Amendment, as the case may be, will be reformed, construed
and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein and/or therein, as the case may
be.
4.8Counterparts:
and Facsimile Signatures.
This
Amendment may be executed, including by facsimile signature, in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which together shall constitute one and the same
instrument.
4.9Governing
Law.
The
interpretation and performance of this Amendment shall be governed by the laws
of the jurisdiction indicated in the Base Contract.
IN
WITNESS WHEREOF, the Parties hereto have duly executed this instrument or have
caused this instrument to be duly executed on their behalf, on the Effective
Date.
