July 21, 1977
ELECTRONIC FILING
Securities and
Exchange Commission
Division of
Corporation Finance
450 Fifth Street N.W.
Washington, DC 20549
RE: Registration Statement on Form SB-2 for Units in
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Our file No 88635-433
Dear Sir or Madam:
Pursuant to the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, enclosed
for filing on behalf of the above-referenced Partnership in
connection with the offer and sale of the Units is a
Registration Statement on Form SB-2, with exhibits thereto.
The registration relates to Units of general and limited
partner interests in the Partnership, which is a
Pennsylvania limited partnership formed to drill, produce
and market natural gas. The Managing General Partner of the
Partnership is Atlas Resources, Inc.
A registration fee of $3,030 was wire transferred to the
Mellon Bank on July 21, 1997. In addition, the following
sales materials were express mailed to the Securities and
Exchange Commission, Division of Corporate Finance, 450
Fifth Street N.W., Room 1-4, File Desk, Washington D.C.
20549:
(1) a brochure entitled "Atlas-Energy for the Nineties-
Public #6 Ltd."; and
(2) The Atlas Group, Inc.'s corporate profile.
Please direct any questions or comments with respect to
this filing to the undersigned or Mr. Gerald A. Bollinger at
(405) 942-3501.
Very truly yours,
KUNZMAN & BOLLINGER,INC.
/s/Wallace W.Kunzman, Jr.
Enclosures
cc: Mr. J.R. O'Mara without enclosures
============================================================
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers
to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in
any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the
securities laws of any such State.
=====================================================================
As filed with the Securities and Exchange Commission on
July 21,1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------
FORM SB-2
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------------------
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
(Exact name of Registrant as Specified in its Charter)
311 ROUSER ROAD
MOON TOWNSHIP, PENNSYLVANIA 15108
(412) 262-2830
(Address and Telephone
Number of Principal
Executive Offices and
Principal Place of
Business)
-----------------------------------
JAMES R.O'MARA, PRESIDENT
ATLAS RESOURCES, INC.
311 ROUSER ROAD,
MOON TOWNSHIP,
PENNSYLVANIA 15108
(412) 262-2830
(Name, Address and Telephone Number of Agent for Service)
Copies to:
WALLACE W. KUNZMAN, JR., ESQ. JAMES R.O'MARA
KUNZMAN & BOLLINGER, INC. ATLAS RESOURCES, INC.
5100 N. BROOKLINE 311 ROUSER ROAD
SUITE 600 MOON TOWNSHIP,
OKLAHOMA CITY, OK 73112 PENNSYLVANIA 15108
Approximate Date of Commencement of Proposed Sale to the Public;
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES
EFFECTIVE.
If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following box:
-----------------------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Dollar Maximum Maximum Amount
of
Class of Securities Amount Offering Aggregate
Registration
to be Registered to be Registered Price/unit Offering Price Fee
UNITS (1) $10,000,000 $10,000 $10,000,000 $3,030.00
(1) "Units" means the Limited Partner interests and the Investor
General Partner interests offered to Participants in the Partnership.
THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON
SUCH DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE
UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION
8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE
AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- -----------------------------------------------------------------------
<PAGE>
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
CROSS REFERENCE SHEET
PURSUANT TO RULE 404
ITEM OF FORM SB-2----
CAPTION IN PROSPECTUS
1. Front of Registration Statement and Outside
Front Cover of
Prospectus
Front Page of Registration Statement and Outside Front
Cover Page of Prospectus
- ----
2. Inside Front and Outside Back Cover Pages of
Prospectus
Inside Front and Outside Back Cover Pages of Prospectus
- ----
3. Summary Information and Risk Factors
Summary of the Offering; Risk Factors
- ----
4. Use of Proceeds
Summary of the Offering;
Capitalization and Source of Funds and Use of Proceeds
- ----
5. Determination of Offering Price
Not Applicable
- ----
6. Dilution
Not Applicable
- ----
7. Selling Security Holders
Not Applicable
- ----
8. Plan of Distribution
Summary of the Offering; Planof Distribution
- ----
9. Legal Proceedings
Litigation
- ----
10. Directors, Executive Officers, Promoters and
Control Persons
Management
- ----
11. Security Ownership of Certain Beneficial Owners
and Management
Management
- ----
12. Description of Securities
Summary of the Offering;
Terms of the Offering; Summary of Partnership Agreement
- ----
13. Interest of Named Experts and Counsel
Legal Opinions; Experts
- ----
14. Disclosure of Commission Position on
Indemnification for
Securities Act Liabilities
Fiduciary Responsibilities of the Managing General Partner
- ----
15. Organization Within Last Five Years
Management
- ----
16. Description of Business
Proposed Activities; Management
- ----
17. Management's Discussion and Analysis or Plan of
Operation
Proposed Activities
- ----
18. Description of Property
A. Issuers Engaged or to Be Engaged in Significant Mining
Operations
B. Supplementing Financial Information about Oil and Gas
Producing
Activities
Proposed Activities
Not Applicable
Not Applicable
- ----
19. Certain Relationships and Related Transactions
Compensation; Management; Conflicts of Interest
- ----
20. Market for Common Equity and Related Stockholder
Matters
Not Applicable
- ----
21. Executive Compensation
Management
- ----
22. Financial Statements
Financial Information Concerning the Managing General Partner,
Atlas Group and the Partnership
- ----
23. Changes In and Disagreements With Accountants on
Accounting and Financial Disclosure
Not Applicable
- ---------------------------------------------------------------
<PAGE>
Preliminary Prospectus (Subject to Completion) Dated September
_____, 1997
Prospectus
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
$1,000,000 Minimum Aggregate Capital Contributions
General and Limited Partner Interests at $10,000 per
Unit Minimum Purchase: 1 Unit ($10,000)
This Prospectus describes an offering of 800 general and
limited partner interests of $10,000 each in Atlas-Energy
for the NinetiesPublic #6 Ltd., a limited partnership.
Investors in the Partnership will be admitted either as
Investor General Partners or Limited Partners depending
upon their election and whether the requisite
suitability standards are met. See "Summary of the Offering
- - Terms of the Offering - Type of Units" for a discussion
of the difference between Investor General Partner Units
and Limited Partner Units. Upon commencement of operations,
the Partnership will acquire Leases for drilling
Development Wells thereon, and produce and market natural
gas, if any, derived therefrom. The Partnership is expected
to generate significant tax deductions. (See "Proposed
Activities" and "Tax Aspects".) The Partnership, upon
commencement of the offering of Units, will not have any
properties or assets. The Managing General Partner of the
Partnership is Atlas Resources, Inc. ("Atlas"), a
Pennsylvania corporation. Atlas is responsible for the
acquisition and supervision of the Partnership's properties
and all other activities of the Partnership. For the
meaning of certain capitalized terms used
herein, see "Definitions".
THESE SECURITIES ARE SPECULATIVE AND ARE SUBJECT TO CERTAIN
RISKS INCLUDING:
PURCHASE OF THE UNITS INVOLVES A HIGH LEVEL OF RISK;
CONSEQUENTLY,
PROSPECTIVE INVESTORS MUST MEET STRICT SUITABILITY
STANDARDS ESTABLISHED BY THE MANAGING GENERAL PARTNER;
THE DRILLING AND COMPLETION OPERATIONS TO BE UNDERTAKEN
BY THE PARTNERSHIP FOR THE DEVELOPMENT OF GAS RESERVES
INVOLVE THE POSSIBILITY OF A SUBSTANTIAL OR PARTIAL LOSS OF
AN INVESTMENT IN THE PARTNERSHIP BECAUSE OF WELLS WHICH ARE
PRODUCTIVE BUT DO NOT PRODUCE ENOUGH REVENUE TO RETURN THE
INVESTMENT MADE;
THE REVENUES OF THE PARTNERSHIP ARE DIRECTLY RELATED TO THE
ABILITY
TO MARKET THE NATURAL GAS AND THE PRICE OF NATURAL GAS
WHICH IS CURRENTLY UNSTABLE AND CANNOT BE PREDICTED AND IF
THE PRICE OF GAS DECREASES THEN THE PARTICIPANT RETURNS
WILL DECREASE;
UNLIMITED JOINT AND SEVERAL LIABILITY FOR PARTNERSHIP
OBLIGATIONS FOR THOSE INVESTORS WHO CHOOSE TO INVEST AS
INVESTOR GENERAL PARTNERS UNTIL THEY CONVERT TO LIMITED
PARTNER INTERESTS;
LACK OF LIQUIDITY OR A MARKET FOR THE UNITS;
LACK OF CONFLICT OF INTEREST RESOLUTION PROCEDURES,
CONSEQUENTLY, CONFLICTS OF INTEREST BETWEEN THE MANAGING
GENERAL PARTNER AND THE INVESTORS MAY NOT NECESSARILY BE
RESOLVED IN THE BEST INTERESTS OF THE INVESTORS;
TOTAL RELIANCE ON MANAGING GENERAL PARTNER AND ITS
AFFILIATES; AUTHORIZATION OF SUBSTANTIAL FEES TO MANAGING
GENERAL PARTNER AND ITS
AFFILIATES;
INVESTORS AND THE MANAGING GENERAL PARTNER WILL SHARE IN
COSTS
DISPROPORTIONATELY TO THEIR SHARING OF REVENUES;
POSSIBLE ALLOCATION OF TAXABLE INCOME TO INVESTORS IN
EXCESS OF THEIR
CASH DISTRIBUTIONS FROM THE PARTNERSHIP; AND
NO GUARANTY OF CASH DISTRIBUTIONS EVERY QUARTER.
(SEE "RISK FACTORS", PAGE 8.)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON
THEIR OWN EXAMINATION OF THE PERSON OR ENTITY CREATING THE
SECURITIES AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED
THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Dealer -Manager Fee,
------------------------
Commissions & Due
Price to Public Diligence Reimbursement(3)
Proceeds to
Net Proceeds
Partnership(4)
For Drilling Cost(5)
- --------------------------------------------------------------------------------
- --------------------
<S> <C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
Drlling Cost(5) Per Unit (1) $ 10,000 $ 1,050 $ 10,000 $
10,000
Minimum (2) $ 1,000,000 $ 105,000 $1,000,000 $
1,000,000
Maximum (2) $ 8,000,000 $ 840,000 $8,000,000 $
8,000,000
Potential Max (2) $10,000,000 $1,050,000 $10,000,000 $
10,000,000
</TABLE>
(1) The minimum required purchase is one (1) Unit or
$10,000;
however, the Managing General Partner, in its
discretion, may accept one-half Unit ($5,000)
subscriptions. (See "Terms of the Offering Suitability
Standards".)
(2) The subscription period will terminate on or
before December
31, 1997 ("Offering Termination Date"). The maximum amount
of subscriptions to be accepted from Participants will be
$8,000,000 (800 Units), and the minimum amount of
subscriptions will be $1,000,000 (100 Units). However, if
subscriptions for all 800 Units being offered are obtained,
the Managing General Partner, in its sole discretion, may
offer not more than 200 additional Units and increase the
maximum aggregate subscriptions with which the Partnership
may be funded to not more than 1,000 Units ($10,000,000).
The Managing General Partner and its Affiliates may buy up
to 10% of the Units, which will not be applied towards the
minimum Partnership Subscription required for the
Partnership to begin operations.
The subscription proceeds will be deposited in an
interest bearing escrow account at National City Bank of
Pennsylvania prior to the receipt of the minimum
Partnership Subscription. Subject to the receipt of the
minimum Partnership Subscription, there will be two
closings which are tentatively set for December 1, 1997
("Initial Closing Date"), and December 31, 1997. The
Partnership will begin all activities, including drilling,
after the Initial Closing Date. A Participant will receive
interest on his Agreed Subscription up until the Offering
Termination Date at the market rate paid by National City
Bank of Pennsylvania.
If subscriptions for $1,000,000 are not received by
December 31, 1997, the sums deposited in the escrow account
will be returned to the subscriber with interest thereon.
Checks for the full subscription amount should be made
payable to "National City Bank, Escrow Agent, Atlas Public
#6 Ltd." and sent, together with a copy of the executed
subscription, to National City Bank of Pennsylvania.,
Corporate Trust Department, 300 Fourth Avenue, Pittsburgh,
Pennsylvania 15278-2331. (See "Terms of the Offering -
Partnership Closings and Escrow".)
(3) The Units will be offered on a "best efforts" basis by
Anthem Securities, Inc., a registered broker-dealer which
is a member of the NASD and a wholly-owned subsidiary of
Atlas Group, acting as DealerManager in all states other
than Minnesota and New Hampshire, and by other selected
registered broker-dealers, which are members of the NASD,
acting as Selling Agents. Bryan Funding, Inc., a member of
the NASD, will serve as Dealer-Manager in the states of
Minnesota and New Hampshire, and will receive the same
compensation as Anthem Securities, Inc. with respect to
sales in those states. Best efforts means that the Dealer-
Manager and broker-dealers will not guarantee the sale of a
certain amount of Units.
The Dealer-Manager will manage and oversee the
offering of the Units as described above and will receive
from the Partnership on each Unit sold to investors a 2.5%
Dealer-Manager fee, a 7.5% Sales Commission and a .5%
reimbursement of the Selling Agents' bona fide accountable
due diligence expenses. The 7.5% Sales Commission and the
.5% reimbursement of accountable due diligence expenses
will be reallowed to the Selling Agents. Atlas is also
utilizing the services of three wholesalers. One of the
wholesalers is associated with Anthem Securities, Inc., and
the other two are associated with Bryan Funding, Inc. The
2.5% Dealer-Manager fee will be reallowed to the
wholesalers for Agreed Subscriptions obtained through such
wholesalers' effort.
Subject to the receipt of the minimum Partnership
Subscription and
the checks having cleared the banking system, Dealer-
Manager fees, Sales Commissions and accountable due
diligence reimbursements will be paid to the broker-dealers
approximately every two weeks until the Offering
Termination Date.
The Dealer-Manager Fee, Sales Commissions and due
diligence reimbursements will be paid by the Managing
General Partner and will not be paid with subscription
proceeds. (See "Participation in Costs and Revenues".)
(4) The Managing General Partner will pay all
Organization Costs associated with the issuance of the
Units, which will not exceed 4.5% of Agreed Subscriptions
($450 per Unit). (See "Participation in Costs and
Revenues".)
(5) After the payment of Organization and Offering
Costs by the Managing General Partner, the Partnership will
utilize 100% of the
Partnership Subscription to drill and complete
Development Wells as described herein. (See "Proposed
Activities".)
Summary of the Offering 1
The Partnership 1
Investment Objectives 1
Investment Features 1
Terms of the Offering 2
Reports 2
No Additional Assessments 2
Suitability Standards - Long Term
Investment 3
Partnership Agreement 3
Application of Proceeds 3
Participation in Costs and Revenues 3
Prior Activities 4
Risk Factors 4
Actions to be Taken by Managing General
Partner
to Reduce Risks ofAdditional Payments by
Investor
General Partners 5
Compensation to the Managing General
Partner,
the Operator and their Affiliates 6
Conflicts of Interest 7
Distribution 7
Risk Factors 8
Special Risks of the Partnership 8
Speculative Nature of Investment 8
Unlimited Liability of Investor
General Partners 8
Illiquid Investment and Restrictions on
Transferability of Participants' Interests 9
Total Reliance upon the Managing General
Partner 9
Management Obligations of Managing General
Partner
Not Exclusive
9
Managing General Partner Liquid Net Worth Is
Not Guaranteed 9
Diversification Depends Upon Subscription
Proceeds 9
Greater Risks Borne by Participants 9
Compensation and Fees to the Managing
General
Partner Regardless of Success of
theActivities 9
Dry Hole Risk in Development Drilling 9
Risk of Unproductive Wells in Development
Drilling 10
Risks Regarding Marketing of Gas 10
Possible Delays in Production and Shut-In
Wells 11
Unspecified Location of a Portion
of the Prospects 11
No Guarantee of Data Regarding Currently
Proposed Prospects 11
Atlas' Subordination is not a Guarantee 11
Borrowings by the Managing General Partner
Could Reduce Funds Available for
Its Subordination Obligation 11
Possibility of Reduction or Unavailability
of Insurance 11
Possible Nonperformance by Subcontractors 11
Risk of Prepayment to Atlas 12
Possible Leasehold Defects 12
Partnership Borrowings May Reduce or
Delay Distributions
12
Atlas Will Receive Benefit from Transfer
of Leases 12
Other Circumstances Under Which
Distributions
May Be Reduced or Delayed
of Interest
12
Risk Regarding Participation
with
Third Parties 12
Dissolution of the Partnership or Withdrawal
o
r Removal of the Managing
General Partner May Have Adverse Effects 13
Indemnification and Exoneration of the
Managing General Partner Would Reduce
Distributions 13
Limited Partner Liability for Repayment of
Certain Distributions 13
Possibility of Unauthorized Acts of Investor
General Partners 13
Risks That Repurchase Obligation May Not Be
Funded and Repurchase Price May Not
Reflect Full Value 13
Possible Participation in Roll-Up 14
General Risks of the Oil and Gas Business 14
Speculative Nature of Gas Business 14
Risks of Decrease in the Price of Gas 14
Drilling Hazards May Be Encountered 14
Competition in Marketing Natural Gas
Production 15
Risk of New Governmental Regulations 15
Potential Liability for Pollution;
Environmental
Matters
15
Uncertainty of Costs 15
Tax Risks 15
Tax Consequences May Vary Depending on
Individual
Circumstances
15
Risk of Changes in the Law 15
No Advance Ruling from the IRS on Tax
Consequences 15
Possible Taxes in Excess of Cash
Distributions 15
Partnership Allocations Are Subject to
Challenge
by the IRS in the Event of an Audit 16
1997 Tax Deductions Are Subject to Challenge
by the IRS in the Event of an Audit 16
Possible Alternative Minimum Tax Liability 16
Investment Interest Deductions May Be
Limited 16
Lack of Tax Shelter Registration 16
State and Local Taxes May Apply 16
Capitalization and Source of Funds
and Use of Proceeds 16
In General 16
Source of Funds 17
Use of Proceeds 17
Subsequent Source of Funds and Borrowings 18
Compensation 18
Oil and Gas Revenues 18
Lease Costs 18
Administrative Costs 19
Drilling Contracts 19
Per Well Charges 19
Transportation and Marketing Fees 19
Dealer-Manager Fees 20
Other Compensation 20
Estimate of Administrative Costs and Direct
Costs
to Be Borne by the Partnership 20
Terms of the Offering 20
Subscription to the Partnership 20
Payment of Subscriptions 21
Partnership Closings and Escrow 21
Offering Period 21
Acceptance of Subscriptions 21
Drilling Period 21
Interest of Participants in the Partnership 22
Qualification of the Partnership 22
Suitability Standards 22
Subscription by Managing General Partner 23
Conflicts of Interest 23
In General 23
Fiduciary Responsibility of the Managing
General
Partner 23
Transactions with Atlas and its Affiliates 24
Conflict Regarding the Drilling and
Operating
Agreement 24
Conflicts Regarding Sharing of Costs and
Revenues 24
Tax Matters Partner 25
Other Activities of the Managing General
Partner,
the Operator and their Affiliates 25
Conflicts Involving the Acquisition of
Leases 25
Conflicts Between Participants 27
Lack of Independent Underwriter and Due
Diligence Investigation 27
Conflicts Concerning Legal Counsel 27
Conflicts Regarding Repurchase Obligation 28
Other Conflicts 28
Procedures to Reduce Conflicts of Interest 28
Policy Regarding Roll-Ups 29
Certain Transactions 30
Fiduciary Responsibility of the Managing
General
Partner 30
General 30
Limitations on Managing General Partner
Liability
as Fiduciary 31
Limitations on Managing General Partner
Indemnification 31
Prior Activities 32
Management 39
Managing General Partner and Operator 39
Officers, Directors and Key Personnel 40
Remuneration 41
Security Ownership of Certain Beneficial
Owners
and Managers 42
Transactions with Management and Affiliates 43
Investment Objectives 44
Proposed Activities 44
In General 44
Intended Areas of Operations 45
Acquisition of Leases 45
Title to Properties 46
Formation of the Partnership and Powers of
the
Managing General Partner 46
Drilling and Completion Activities;
Operation of
Producing Wells 47
Sale of Oil and Gas Production 48
Interests of Parties 49
Insurance 49
Use of Consultants and Subcontractors 50
Information Regarding Currently Proposed
Prospects 50
Competition, Markets and Regulation 78
Competition 78
Marketing 78
State Regulations 78
Environmental Regulation 79
Crude Oil Regulation 79
Federal Gas Regulation 79
Proposed Regulation 79
Participation in Costs and Revenues 79
In General 79
Costs 79
Revenues 80
Subordination of Portion of Managing General
Partner's Net Revenue Share 81
Allocation and Adjustment Among Participants 82
Distributions 82
Tax Aspects 83
Summary of Tax Opinion 83
In General 85
Partnership Classification 85
Limitations on Passive Activities 85
Taxable Year 86
1997 Expenditures 86
Availability of Certain Deductions 86
Intangible Drilling and Development Costs 87
Drilling Contracts 87
Depletion Allowance 88
Depreciation - Accelerated Cost Recovery
System 88
Leasehold Costs and Abandonment 89
Tax Basis of Participants' Interests 89
Distributions from a Partnership 89
Sale of the Properties 89
Disposition of Partnership Interests 89
Minimum Tax - Tax Preferences 90
Limitations on Deduction of Investment
Interest 90
Allocations 90
"At Risk" Limitation for Losses 91
Partnership Organization and Syndication Fees 91
Tax Elections 91
Disallowance of Deductions under Section 183
of the Code 91
Termination of a Partnership 92
Lack of Registration as a Tax Shelter 92
Tax Returns and Audits 92
Penalties and Interest 92
State and Local Taxes 93
Severance, Franchise, and Ad Valorem (Real
Estate) Taxes 93
Social Security Benefits and Self-Employment
Tax 93
Foreign Partners 93
Estate and Gift Taxation 94
Changes in Law 94
Definitions 94
Summary of Partnership Agreement 99
Responsibility of Managing General Partner 99
Liabilities of General Partners, Including
Investor General Partners 100
Liability of Limited Partners 100
Amendments 100
Notice 100
Voting Rights 100
Access to Records 101
Withdrawal of Managing General Partner 101
Removal of Operator 102
Term and Dissolution 102
Summary of Drilling and Operating Agreement 102
Reports to Investors 102
Repurchase Obligation 103
Transferability of Units 104
Plan of Distribution 105
Sales Material 106
Legal Opinions 106
Experts 106
Litigation 106
Additional Information 106
Financial Information Concerning the Managing
General Partner, AtlasGroup and the
Partnership 107
Exhibits
Exhibit (A) Amended and Restated Certificate and Agreement
of
Limited Partnership
Exhibit (I-A) Managing General PartnerSignature Page
Exhibit (I-B) Subscription Agreement
Exhibit (II) Drilling and Operating Agreement
Exhibit (B) Special Suitability Requirementsand Disclosures
to
Investors
======================================================
SUMMARY OF THE OFFERING
This summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus.
Prospective investors are directed to "Definitions," which
defines the capitalized terms used throughout this
Prospectus.
THE PARTNERSHIP
Atlas-Energy for the Nineties-Public #6 Ltd. (the
"Partnership"), is a Pennsylvania limited partnership which
includes Atlas Resources, Inc. ("Atlas"), of Pittsburgh,
Pennsylvania, as Managing General Partner and Operator, and
subscribers to Units as either Limited Partners or Investor
General Partners. The Partnership will be funded to drill
wells which are located primarily in the Mercer County area
of Pennsylvania, although the Managing General Partner has
reserved the right to use up to 15% of the Partnership
Subscription to drill wells in other areas of the United
States. Atlas anticipates that all of the Partnership's
wells will be classified as gas wells which may produce a
small amount of oil. The majority of the wells drilled by
the Partnership will be Development Wells which will test
the Clinton/Medina geological formation ("Clinton/Medina").
For a description of the Prospects which are currently
proposed see "Proposed Activities - Information Regarding
Currently Proposed Prospects".
Atlas and its Affiliates will act as general drilling
contractor and operator for all the wells. (See "Proposed
Activities".)
INVESTMENT OBJECTIVES
Except for the historical information contained herein, the
matters discussed below are forward looking statements that
involve risks and uncertainties, including the risk that
the Wells are productive but do not produce enough revenue
to return the investment made, Dry Holes, uncertainties
concerning the price of gas, and the other risks detailed
below. The actual results that the Partnership achieves
may differ materially from the objectives set forth below
due to such risks and uncertainties. The Partnership's
principal investment objectives are to invest the
Partnership Subscription in natural gas Development Wells
which will:
(1) Provide quarterly cash distributions until the
wells are depleted, (historically 20+ years) with a
preferred annual cash flow of 10% during the first five
years based on the original subscription amount. (See "Risk
Factors - Special Risks of the Partnership - Risk of
Unproductive Wells in Development Drilling," "Prior
Activities" and "Participation in Costs and Revenues -
Subordination of Portion of Managing General Partner's Net
Revenue Share".)
(2) Obtain tax deductions in 1997 from intangible
drilling and development costs to offset a portion of the
Participants' taxable income (subject to the passive
activity rules in the case of Limited Partners). One Unit
will produce a 1997 tax deduction of $8,000 against
ordinary income for Investor General Partners and against
passive income for Limited Partners. For an investor in
either the 39.6% or 36% tax bracket, one Unit will save
$3,168 or $2,880 respectively in federal taxes this year.
Most states also allow this type of a deduction against the
state income tax.
(3) Offset a portion of any taxable income generated by
the Partnership with tax deductions from percentage
depletion, presently 16% (estimated to be 18% on net
revenue). Atlas estimates that this feature should reduce
an investor's effective tax rate from 39.6% to 33.3% (i.e.,
84% of 39.6%) on Partnership net revenues.
(4) Obtain tax deductions of the remaining 20% of the
initial investment from 1998 through 2005. The investor
will receive an additional $2,000 tax deduction per Unit
generated through the remaining depreciation over a seven-
year cost recovery period of the Partnership's equipment
costs for the wells.
ATTAINMENT OF THE PARTNERSHIP'S INVESTMENT OBJECTIVES WILL
DEPEND ON MANY FACTORS, INCLUDING THE ABILITY OF THE
MANAGING GENERAL PARTNER TO SELECT SUITABLE PROSPECTS WHICH
WILL BE PRODUCTIVE AND PRODUCE ENOUGH REVENUE TO RETURN THE
INVESTMENT MADE. THE SUCCESS OF THE PARTNERSHIP DEPENDS
LARGELY ON FUTURE ECONOMIC CONDITIONS, ESPECIALLY THE
FUTURE PRICE OF NATURAL GAS WHICH IS VOLATILE.
THERE CAN BE NO GUARANTEE THAT THE FOREGOING OBJECTIVES
WILL BE ATTAINED.
INVESTMENT FEATURES
PREFERRED 10% CASH RETURN (CUMULATIVE 5 YEARS). The
Partnership is structured to provide preferred cash
distributions to the Participants equal to a minimum of 10%
of their Agreed Subscription in each of the first five
twelve-month periods of Partnership operations. To help
insure the Participants achieve this investment feature,
Atlas will subordinate a part of its Partnership revenues
in an amount up to 10% of the Partnership Net Production
Revenues. (Partnership Net Production Revenues means gross
revenues after deduction of the related Operating Costs,
Direct Costs, Administrative Costs and all other
Partnership costs not specifically allocated.) This feature
allows the investors to receive a greater percentage of
cash distributions if the Partnership does not provide the
10% return to Participants as described above. (See "Risk
Factors - Special Risks of the Partnership - Borrowings by
the Managing General Partner Could Reduce Funds Available
for Its Subordination Obligation" and "Participation in
Costs and Revenues Subordination of Portion of Managing
General Partner's Net Revenue Share".)
REPURCHASE OBLIGATION. Beginning in 2001, the Participants
may present their interests for repurchase by the Managing
General Partner. Repurchase of Units is subject to certain
conditions, including the financial ability of the Managing
General Partner to purchase the Units. (See "Risk Factors -
Special Risks of the Partnership - Risk That Repurchase
Obligation May Not Be Funded and Repurchase Price May Not
Reflect Full Value" and "Repurchase Obligation".)
INVESTOR INTEREST FEATURE. A Participant will receive
interest on his Agreed Subscription up until the Offering
Termination Date. The interest will be paid to Participants
approximately eight weeks after the Offering Termination
Date.
TERMS OF THE OFFERING
IN GENERAL. Units of Participation ("Units") are offered at
$10,000 per Unit. The minimum subscription is one Unit;
however, the Managing General Partner, in its discretion,
may accept one-half Unit ($5,000) subscriptions. Larger
subscriptions will be accepted in $1,000 increments. Agreed
Subscriptions are payable 100% in cash at the time of
subscribing.
The maximum amount of subscriptions to be accepted from
Participants will be $8,000,000 (800 Units), and the
minimum amount of subscriptions will be $1,000,000 (100
Units). However, if subscriptions for all 800 Units being
offered are obtained, the Managing General Partner, in its
sole discretion, may offer not more than 200 additional
Units and increase the maximum aggregate subscriptions with
which the Partnership
may be funded to not more than 1,000 Units ($10,000,000).
Pending receipt of the minimum Partnership Subscription,
subscription deposits in the escrow account will earn
interest at National City Bank of Pennsylvania's variable
market rate for short-term deposits. If the minimum
Partnership Subscription is not received on or before
December 31, 1997, subscriptions will be refunded in full
with interest earned thereon. The Managing General Partner
and its Affiliates may buy up to 10% of the Units, which
will not be applied towards the minimum Partnership
Subscription required for the Partnership to begin
operations. For a full discussion of the various terms of
the offering, see "Terms of the Offering".
ESCROW ACCOUNT. The subscription proceeds will be deposited
in an interest bearing escrow account at National City Bank
of Pennsylvania, Pittsburgh, Pennsylvania until the receipt
of the minimum Partnership Subscription after which the
funds will be paid directly to the Partnership account.
Subject to receipt of the minimum Partnership Subscription,
there will be two closings which are tentatively set for
December 1, 1997 ("Initial Closing Date"), and December 31,
1997. The Partnership will begin its activities, including
drilling, after the Initial Closing Date. (See "Terms of
the Offering - Partnership Closings and Escrow".)
TYPE OF UNITS. Participants may purchase Limited Partner
Units or Investor General Partner Units. Although costs,
revenues and cash distributions allocable to the
Participants are shared pro rata based upon the amount of
their Agreed Subscriptions, there are material differences
in the federal income tax effects and liability associated
with these different types of Units in the Partnership.
Investor General Partners will have unlimited joint and
several liability regarding Partnership activities, but
their use of Partnership losses will not be subject to the
passive activity limitations. Limited Partners will have
limited liability, but their use of Partnership losses
generally will be limited to net passive income from
"passive" trade or business activities, which generally
includes the Partnership and other limited partnership
investments. (See "- Actions to be Taken by Managing
General Partner to Reduce Risks of Additional Payments by
Investor General Partners," below, "Risk Factors - Special
Risks of the Partnership- Unlimited Liability of Investor
General Partners," "Tax Aspects - Limitations on Passive
Activities," and "Summary of Partnership Agreement".)
REPORTS
A status report detailing the progress of drilling
activities will be furnished to each Participant. In
addition, each Participant will be provided within 120 days
after the end of each calendar year audited financial
statements showing the income, expenses, assets and
liabilities of the Partnership at the end of its fiscal
year prepared in accordance with generally accepted
accounting principles. Tax information with respect to the
Partnership's operations for each calendar year will be
furnished to each Participant by March 15 of the following
year. (See "Reports to Investors".)
NO ADDITIONAL ASSESSMENTS
The Units are not subject to assessment. The Partnership
will not call upon the Participants for additional amounts
of capital beyond their Agreed Subscriptions. However, in
the case of Investor General Partners, if the insurance
proceeds, Partnership assets, and the indemnification of
the Investor General Partners by Atlas and Atlas Group
(which was formerly AEG Holdings, Inc.) were not sufficient
to satisfy Partnership liabilities for which the Investor
General Partners were also liable, the Managing General
Partner could call upon Investor General Partners to make
additional Capital Contributions to the Partnership from
their personal assets to satisfy such liabilities. Also, if
the Partnership requires additional funds, which the
Managing
General Partner does not anticipate, such funds will have
to be provided by borrowings or the retention of
Partnership revenues. (See "Capitalization and Source of
Funds and Use of Proceeds".)
SUITABILITY STANDARDS - LONG TERM INVESTMENT
The Managing General Partner has instituted strict
suitability standards for investment in the Partnership.
The high degree of investment risk together with the
restrictions on the sale of Units, lack of a market for the
Units, and the tax consequences of the investment make the
purchase of Units in the Partnership suitable only for
persons who are able to hold their Units on a long-term
investment basis. (See "Terms of the Offering - Suitability
Standards".)
This is not an appropriate investment for IRAs, Keogh plans
and qualified retirement plans.
PARTNERSHIP AGREEMENT
The Partnership is a Pennsylvania limited partnership and
will be governed by the Partnership Agreement, the form of
which is included as Exhibit (A) to this Prospectus, as
well as the provisions of the Pennsylvania Revised Uniform
Limited Partnership Act. Among other matters, the
Partnership Agreement provides for the distribution of
revenues and the allocation of costs, revenues, expenses,
income, gain, deductions and credits to and among the
Partners. The Partnership Agreement also provides for
Partnership reporting and the conduct of Partnership
business and operations. The Participants have certain
rights, exercisable with limited exception by majority
vote, relating to their ownership of a Unit in the
Partnership including the right to: (i) call a meeting of
the Partners; (ii) remove the Managing General Partner and
elect a new Managing General Partner; (iii) elect a new
Managing General Partner if the Managing General Partner
elects to withdraw from the Partnership; (iv) remove the
Operator and elect a new Operator; (v) amend the
Partnership Agreement; (vi) dissolve and wind up the
Partnership; (vii) approve or disapprove any sale of all or
substantially all of the assets of the Partnership; and
(viii) cancel any contract for services with the Managing
General Partner, the Operator or their Affiliates without
penalty upon sixty days' notice. Atlas and its Affiliates
may vote any Units purchased by them with respect to
certain of these matters. These and other rights are more
particularly described in Section 4.03(c) and its
subsections of the Partnership Agreement and are subject to
certain limitations as set forth therein.
APPLICATION OF PROCEEDS
The Partnership Subscription will be expended by the
Partnership for the purposes and in the percentages shown
below assuming the minimum number of Units is sold.
EXPENDITURE OF THE PARTNERSHIP
SUBSCRIPTION
MINIMUM PARTNERSHIP
SUBSCRIPTION ($1,000,000) PERCENTAGE
Organization and Offering Costs $ 0 0
Lease Acquisition Costs 0 0
Intangible Drilling Costs 800,000 80%
80% Tangible Costs 200,000 20%
--------------------------------
TOTAL $1,000,000 100%
For a more complete discussion of how the Partnership will
apply the proceeds of this offering, see "Capitalization
and Source of Funds and Use of Proceeds".
PARTICIPATION IN COSTS AND REVENUES
The following table sets forth the participation in costs
and revenues of the Partnership between the Managing
General Partner and the Participants. (See "Definitions"
and "Participation in Costs and Revenues".)
MANAGING
GENERAL PARTNER PARTICIPANTS
PARTNERSHIP COSTS
Organization and Offering Costs (1) 100% 0%
Lease Costs 100% 0%
Intangible Drilling Costs (2) 0% 100%
Tangible Costs 14% 86%
Operating Costs, Administrative Costs,
Direct Costs and All Other Costs (3) 25% 75%
PARTNERSHIP REVENUES
Equipment Proceeds (4) (4)
All other Revenues including
Production Revenues (5) 25% 75%
(1) The Managing General Partner's payment of Organization
and Offering costs in an amount up to 15% of the
Partnership Subscription will be credited towards its
required Capital Contribution. Although Organization and
Offering Costs in excess of 15% of the Partnership
Subscription also will be paid by the Managing General
Partner, such payments will be without recourse to the
Partnership and the Managing General Partner will not be
credited with such amounts towards its required Capital
Contribution.
(2) More specifically, Intangible Drilling Costs and the
Participants' share of Tangible Costs of a well or wells to
be drilled and completed with the proceeds of a Partnership
closing will be charged 100% to the Participants who are
admitted to the Partnership in such closing and will not
be reallocated to take into account other Partnership
closings.
(3) In the event Atlas has to subordinate its Partnership
revenues in an amount up to 10% of Net Production Revenues
of the Partnership, then Operating Costs, Direct Costs,
Administrative Costs and all other Partnership costs not
specifically allocated will be charged to the parties in
the same ratio as the related production revenues are being
credited. (See "- Investment Features - Preferred 10% Cash
Return (cumulative 5 years)," above and "Risk Factors -
Special Risks of the Partnership - Borrowings by the
Managing General Partner Could Reduce Funds Available for
Its Subordination Obligation".)
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<PAGE> 4
(4) Proceeds from the sale or other disposition of
equipment will be credited to the parties charged with the
costs of such equipment in the ratio in which such costs
were charged.
(5) The revenues from all Partnership Wells will be
commingled, so regardless of when a Participant subscribes
he will share in the revenues from all wells on the same
basis as the other Participants. PRIOR ACTIVITIES
Atlas has previously sponsored five public and twenty-one
private Development Drilling Programs formed since 1985 to
conduct natural gas drilling and development activities in
Pennsylvania and Ohio. Atlas has drilled approximately
1,600 Development Wells over the 25 year period from 1972
to 1997 and during this time it has completed approximately
97% of the wells. In the current area of primary interest
in Mercer County, Pennsylvania, Atlas has completed 98% of
more than approximately 738 wells drilled. (See "Prior
Activities" and "Proposed Activities - Information
Regarding Currently Proposed Prospects".)
RISK FACTORS
This offering involves numerous risks, including the risks
of oil and gas drilling, the risks associated with
investments in oil and gas drilling programs, and tax
risks. (See "Risk Factors".) Each prospective investor
should carefully consider a number of significant risk
factors inherent in and affecting the business of the
Partnership
and this offering, including the following.
RISKS PERTAINING TO OIL AND GAS INVESTMENTS:
The drilling and completion operations to be undertaken by
the Partnership for the development of gas reserves involve
the possibility of a substantial or partial loss of an
investment in the Partnership because of wells which are
productive but do not produce enough revenue to return the
investment made and/or from time to time Dry Holes.
The revenues of the Partnership are directly related to
the ability to market the natural gas and the price of
natural gas which is currently unstable and cannot be
predicted. If gas prices decrease then investor returns
will decrease.
Oil and gas operations in the United States are subject to
extensive government regulation. Future pollution and
environmental laws could have an adverse effect on the
Partnership.
SPECIAL RISKS OF THE PARTNERSHIP:
The Managing General Partner will have the exclusive
management and control of all aspects of the business of
the Partnership.
Prior to the conversion of Investor General Partners to
Limited Partners, Investor General Partners will have
unlimited joint and several liability for all obligations
and liabilities to creditors and claimants arising from the
conduct of Partnership operations and if such liabilities
exceed the Partnership's assets, insurance and the assets
of the Managing General Partner and Atlas Group (which have
agreed to indemnify the Investor General Partners), the
Investor General Partners could incur liability in excess
of their Agreed Subscriptions.
Lack of liquidity or a market for the Units,
necessitating a longterm investment commitment.
Lack of asset diversification and concentration of
investment risk should less than the maximum Partnership
Subscription be raised and thus fewer wells drilled. The
Managing General Partner anticipates that 35 to 36 wells
will be drilled if the maximum Partnership Subscription of
$8,000,000 is received, and 4 to 5 wells will be drilled if
only the minimum Partnership Subscription of $1,000,000 is
received.
Certain conflicts of interest between the Managing
General Partner and the Partnership and lack of procedures
to resolve such conflicts.
Atlas and its Affiliates can be expected to profit from the
Partnership even though it is possible that Partnership
activities could result in little or no profit, or a loss,
to Participants.
Investors and the Managing General Partner will share in
costs
disproportionately to their sharing of revenues.
Atlas intends that the Partnership will drill the
currently proposed Prospects described in "Proposed
Activities - Information Regarding Currently Proposed
Prospects"; however, if there are adverse events with
respect to any of the currently proposed Prospects, Atlas
has the right acting as a prudent operator to substitute
the Partnership's Prospects. Also, up to 15% of the
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<PAGE> 5
Partnership Subscription may be used to drill Prospects
which are located in other areas of the United States and
are not described in "Proposed Activities - Information
Regarding Currently Proposed Prospects". Although Atlas has
pledged to subordinate a portion of its Partnership Net
Production Revenues, the subordination is not a guarantee
by Atlas. If the wells produce gas in small amounts and/or
the price of gas decreases, then even with subordination
the cash flow to the Participants may be very small and
they may not receive a return of their entire investment.
Quarterly cash distributions to investors may be
deferred to the extent revenues are used for Partnership
operations or reserves or if production is reduced because
of decreases in the price of gas.
Subject to certain conditions, beginning in 2001 the
Participants may present their interests for purchase by
the Managing General
Partner. There is a risk that the Managing General Partner,
or its Affiliates, will not have the necessary cash flow or
be able to arrange financing for such purposes on terms
which are reasonable as determined by the Managing General
Partner, and in such event the Managing General Partner is
able to suspend its repurchase obligation.
TAX RISKS:
There is no guarantee that if the Partnership is
audited the IRS will not challenge the deductions claimed
by the Partnership.
Alternative minimum taxable income of "independent
producers," which includes most investors, cannot be
reduced by more than 40% in the 1997 tax year by reason of
the repeal of the preference item for intangible drilling
and development costs.
The proper application of many provisions of the IRS
regulations governing partnership allocations is currently
unclear. Should the IRS successfully challenge the
allocation provisions contained in the Partnership
Agreement, Participants could incur a greater tax
liability. However, assuming the effect of the allocations
set forth in the Partnership Agreement is substantial in
light of a Participant's tax attributes that are unrelated
to the Partnership, in Special Counsel's opinion it is more
likely than not that such allocations will govern each
Participant's distributive share to the extent they do not
cause or increase deficit balances in the Participants'
Capital Accounts.
ACTIONS TO BE TAKEN BY MANAGING GENERAL PARTNER TO REDUCE
RISKS OF ADDITIONAL PAYMENTS BY INVESTOR GENERAL PARTNERS
The Managing General Partner will attempt to conduct the
operations of the Partnership in a manner designed to
reduce the risk that an Investor General Partner could be
required to make additional payments to the Partnership.
The actions to be taken by the Managing General Partner
include:
1. INSURANCE. Fifty million dollars of liability
coverage during
drilling operations and eleven million dollars thereafter
as set forth in "Proposed Activities - Insurance."
2. CONVERSION OF INVESTOR GENERAL PARTNER UNITS TO
LIMITED PARTNER
INTERESTS. Pursuant to the Partnership Agreement, Investor
General Partner Units in the Partnership will be converted
to Limited Partner interests after substantially all of the
Partnership Wells have been drilled and completed, which is
anticipated to be in late summer of 1998. Once conversion
has taken place, Investor General Partners will continue to
have the responsibilities of general partners with respect
to Partnership tort, contract and environmental liabilities
and obligations incurred prior to the effective date of the
conversion. However, such Investor General Partners will
have the lesser liability of limited partners under
Pennsylvania law with respect to obligations and
liabilities arising after the conversion. Nevertheless, an
Investor General Partner might become liable for
obligations in excess of his Agreed Subscription to the
Partnership during the time when the Partnership is engaged
in drilling activities and for environmental claims that
arose during drilling activities but were not discovered
until after conversion.
3. NONRECOURSE DEBT. Under the Partnership Agreement the
Partnership will be permitted to borrow funds only from
Atlas or its Affiliates which will not have recourse
against the non-Partnership assets of the individual
Investor General Partners. Accordingly, no Investor General
Partner could be required to contribute funds to the
Partnership in the case of a default under such loan
arrangement and any such borrowings will be repaid from
Partnership revenues. The amount that may be
borrowed at any one time may not exceed an amount equal to
5% of the Partnership Subscription. Because the
Participants do not bear the risk of repaying these
borrowings with non-Partnership assets, the borrowings will
not increase the extent to which Participants are allowed
to deduct their individual shares of Partnership losses.
(See "Tax Aspects - Tax Basis of Participants' Interests"
and "- `At Risk' Limitation For Losses".)
To further protect the Investor General Partners, during
producing operations all third party goods and services
will be acquired by Atlas and its Affiliates and the
Partnership will then acquire such goods and services from
Atlas and its Affiliates at their Cost.
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<PAGE> 6
4. INDEMNIFICATION. Atlas and Atlas Group will
indemnify each Investor General Partner from any liability
incurred in connection with the Partnership which is in
excess of such Investor General Partner's interest in the
undistributed net assets of the Partnership and insurance
proceeds, if any. Upon such indemnification by Atlas and/or
Atlas Group, each Investor General Partner who has been
indemnified is deemed to have transferred and subrogated
his rights for contribution from or against any other
Investor General Partner to Atlas and/or Atlas Group.
Atlas' and Atlas Group's indemnification obligation,
however, will not eliminate an Investor General Partner's
potential liability in the event that insurance is not
sufficient or available to cover a liability and Atlas' and
Atlas Group's assets are insufficient to satisfy their
indemnification obligation. There can be no assurance that
Atlas' and Atlas Group's assets, including their liquid
assets, will be sufficient to satisfy their indemnification
obligation. (See "Risk Factors - Special Risks of the
Partnership - Managing General Partner Liquid Net Worth Is
Not Guaranteed" and "Financial Information Concerning the
Managing General Partner, Atlas Group and the
Partnership".)
COMPENSATION TO THE MANAGING GENERAL PARTNER, THE OPERATOR
AND THEIR AFFILIATES
The following is a tabular presentation of the items of
compensation and reimbursement to be received by Atlas and
its Affiliates from the Partnership which are discussed
more fully in "Compensation."
FORM OF COMPENSATION AND/OR REIMBURSEMENT AMOUNT
Partnership Interest
25% of the oil and gas revenues of
the Partnership in return for paying Organization and
Offering Costs equal to 15% of the Partnership
Subscription, 14% of Tangible Costs and contributing all
Prospects to the Partnership at Cost, or fair market value
if Cost is materially more than fair market value.(1)
Contract drilling rates
Competitive industry rates.
Atlas anticipates that it will have a profit of
approximately 15% per well if the well is drilled to a
depth of 6,150 feet in the Mercer County area of the
Appalachian Basin. (1)
Operator's Per-Well Charges
Competitive industry rates,
currently $275 per well per month in the Appalachian Basin.
(See "Proposed Activities - Drilling and Completion
Activities; Operation of Producing Wells".) (1)
Direct Costs
Reimbursement at Cost.(1)
Administrative Costs
Unaccountable, fixed payment
reimbursement of Managing General Partner's administrative
overhead which the Managing General Partner has set at $75
per well per month. (1)
Transportation and Marketing Fee
Competitive industry rate of 29cents
per MCF. (1)
Dealer-Manager Fees
The Dealer-Manager will receive from Atlas certain fees
on each Unit sold. (See "Compensation".)
(1) Cannot be quantified at the present time.
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<PAGE> 7
The following organizational chart shows the relationship
between
Atlas Resources, Inc., the Managing General Partner, and its Affiliates.
(See
"Management".)
========================================================================
===
Organizational Diagram
The Atlas Group, Inc.
|
AIC, Inc.
|-----------------------------------|
|
|
|-Atlas Resources, Inc. (Managing General Partner, Driller and Operator
| | in Pennsylvania)
| |
| ARD Investments, Inc.
|
|-Mercer Gas Gathering, Inc. (Gas Gathering Company)
|
|-Pennsylvania Industrial Energy, Inc. ("PIE") (Sells Gas to
| Pennsylvania Industry)
|
|-Atlas Energy Corporation (Managing General Partner of
| Exploratory Drilling Programs and Driller
| and Operator)
|
|-Transatco, Inc., which owns 50% of Topico (Operates Pipeline in Ohio)
|
|-Atlas Gas Marketing, Inc. (Markets Natural Gas)
|
|-Anthem Securities Inc. (Registered BrokerDealer and Dealer-Manager)
|
|-Atlas Energy Group, Inc. (Driller and Operator in Ohio)
|
|
AED Investments, Inc.
CONFLICTS OF INTEREST
The Managing General Partner has a fiduciary duty to exercise good faith
and to deal fairly with the Participants in handling the affairs of the
Partnership. Nevertheless, there are various conflicts of interest
between the Managing General Partner and the Participants with respect
to the Partnership. Conflicts of interest are inherent in oil and gas
drilling programs involving non-industry participants because the
transactions are entered into without arms' length
negotiation. Such conflicts of interest include: (i) services provided
to the Partnership by the Managing General Partner and its Affiliates
and the amount of compensation paid by the Partnership for such
services; (ii) which Leases will be acquired by the Partnership or other
Programs sponsored by the Managing General Partner or its Affiliates
and the terms upon which such acquisitions are made; (iii) the
allocation of the Managing General Partner's management time, services
and other functions among the Partnership and other Programs sponsored
by the Managing General Partner and its Affiliates; (iv) the Managing
General Partner's obligation to repurchase Participants' Units presented
to it beginning in 2001 and the amount of the repurchase price; and (v)
other conflicts of interest.
Other than certain guidelines set forth in "Conflicts of Interest",
the Managing General Partner has no established procedures to resolve
a conflict of interest. Consequently, conflicts of interest between
the Managing General Partner and the Participants may not necessarily be
resolved in the best interests of the Participants. Under Section
4.05(a) of the Partnership Agreement, the Managing General Partner, the
Operator and their Affiliates have no liability to the Participants
for any action or inaction on their part which they determined was in
the best interest of the Partnership, provided that such course of
conduct did not constitute negligence or misconduct of the Managing
General Partner, the Operator or their Affiliates. (See "Conflicts of
Interest".)
DISTRIBUTION
The Units will be offered on a "best efforts" basis by Anthem
Securities, Inc., a registered broker-dealer which is a member of the
NASD and a wholly-owned subsidiary of Atlas Group, acting as Dealer
Manager in all states other than Minnesota and New Hampshire, and by
other selected registered broker-dealers, which are members of the NASD,
acting as Selling Agents. Bryan Funding, Inc., a member of the NASD,
will serve as Dealer-Manager in the states of Minnesota and New
Hampshire, and will receive the same compensation as Anthem Securities,
Inc. with respect to sales in those states. Best efforts means that the
Dealer-Manager and broker-dealers will not guarantee the sale of a
certain amount of Units.
The Dealer-Manager will manage and oversee the offering of the Units as
described above and will receive from the Partnership on each Unit sold
to investors a 2.5% Dealer-Manager fee, a 7.5% Sales Commission and a
.5% reimbursement of the Selling Agents' bona fide accountable due
diligence expenses. The 7.5% Sales Commission and the .5% reimbursement
of accountable due diligence expenses will be reallowed to the Selling
Agents. Atlas is also utilizing the services of three wholesalers. One
of the wholesalers is associated with Anthem Securities, Inc., and the
other two are associated with Bryan Funding, Inc. The 2.5% Dealer-
Manager fee will be reallowed to the wholesalers for Agreed
Subscriptions obtained through such wholesalers' effort.
Subject to the receipt of the minimum Partnership Subscription and the
checks having cleared the banking system, Dealer-Manager fees, Sales
Commissions and accountable due diligence reimbursements will be paid to
the broker-dealers approximately every two weeks until the Offering
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<PAGE> 8
Termination Date. (See "Terms of the Offering - Partnership Closings
and Escrow," "Participation in Costs and Revenues" and "Plan of
Distribution".)
======================================================================
THE FOREGOING SUMMARY OF CERTAIN PROVISIONS OF THE PROSPECTUS DOES NOT
PURPORT TO BE A COMPLETE DESCRIPTION OF THE TERMS AND CONSEQUENCES OF AN
INVESTMENT IN THE PARTNERSHIP. PROSPECTIVE INVESTORS AND THEIR ADVISERS
SHOULD CAREFULLY READ THE ENTIRE PROSPECTUS AND ALL ATTACHED EXHIBITS
BEFORE MAKING AN INVESTMENT IN THE PARTNERSHIP.
======================================================================
RISK FACTORS
An investment in the Partnership involves a high degree of risk and is
suitable only for investors of substantial financial means who have no
need of liquidity in their investment.
SPECIAL RISKS OF THE PARTNERSHIP
SPECULATIVE NATURE OF INVESTMENT. Exploration for gas is an inherently
speculative activity. There is always the risk that drilling activity
may result in wells which do not produce gas in sufficient quantities to
return the investment made and from time to time Dry Holes. There is a
substantial risk that the price of gas will be volatile and may
decrease. A Participant will be able to recover his investment only
through distributions of sales proceeds from production of the
Partnership gas reserves which deplete over time. All or a portion of
these distributions may be considered to include a return to
Participants of their investment in the Partnership. There can be no
guarantee that the Participants will recover all of their investment or
if they do recover their investment that they will receive a rate of
return on their investment that is competitive with other types of
investment. (See "Proposed Activities - Intended Areas of Operations".)
UNLIMITED LIABILITY OF INVESTOR GENERAL PARTNERS. Under Pennsylvania
law, each Investor General Partner will have unlimited joint and several
liability with respect to the activities of the Partnership which could
result in an Investor General Partner being required to make payments,
in addition to his original investment, in amounts which are impossible
to determine because of their uncertain nature with respect to the
development and operation of the wells. Also, the Partnership may own
less than 100% of the Working Interest in the Prospects and in that
event each Investor General Partner may have joint and several liability
with the other third party owners of the Working Interest. Although
under the terms of the Partnership Agreement the Investor General
Partners agree to be responsible for and pay their respective
proportionate shares of such obligations and liabilities, such agreement
does not legally negate each Investor General Partner's joint and
several liability for such obligations and liabilities as among
themselves if an Investor General Partner does not pay his respective
proportionate share of such obligations and liabilities and/or in the
event that a court holds the Investor General Partners and the other
third party owners of the Working Interest to be jointly and severally
liable. (See "Summary of the Offering - Actions to be Taken by Managing
General Partner to Reduce Risks of Additional Payments by Investor
General Partners", "- General Risks of the Oil and Gas Business -
Drilling Hazards May Be Encountered," "- General Risks of the Oil and
Gas Business - Potential Liability for Pollution; Environmental
Matters," and "Summary of Partnership Agreement Liabilities of General
Partners, Including Investor General Partners".)
In addition to the other actions summarized in this Prospectus which
will be taken by Atlas to reduce the risk of additional payments by the
Investor General Partners, Atlas and Atlas Group have agreed to
indemnify each Investor General Partner from any liability incurred in
connection with the Partnership which is in excess of such Investor
General Partner's share of Partnership assets. There can be no assurance
that Atlas' and Atlas Group's assets, including their liquid assets,
will be sufficient to satisfy their indemnification obligation. This
risk is increased because Atlas and Atlas Group have made and will make
similar financial commitments in other drilling programs. The
Partnership will also have the benefit of general and excess liability
insurance of $50,000,000 during drilling operations and, thereafter,
$11,000,000, per occurrence and in the aggregate. Nevertheless, the
Investor General Partners may become subject to tort or contract
liability in excess of the amounts insured under such policies and also
may be subject to liability for pollution, abuses of the environment and
other damages against which the Managing General Partner cannot insure
because coverage is not available or against which it may elect not to
insure because of high premium costs or other reasons. (See "
Possibility of Reduction or Unavailability of Insurance" and "Proposed
Activities - Insurance".)
If the insurance proceeds, Partnership assets, and Atlas' and Atlas
Group's indemnification of the Investor General Partners were not
sufficient to satisfy such liability an Investor General Partner's
personal assets could be required to be used to satisfy such liability.
ILLIQUID INVESTMENT AND RESTRICTIONS ON TRANSFERABILITY OF PARTICIPANTS'
INTERESTS. Participants in the Partnership must assume the risks of an
illiquid investment. Participants' interests are not marketable; and the
transferability of Participants' interests is limited, both by express
provision of the Partnership Agreement and the provisions of state and
federal securities laws.
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<PAGE> 9
Under the Partnership Agreement, Units are nontransferable except with
the consent of the Managing General Partner, and an assignee of a
Participant's Unit is entitled to become a substituted Partner only if
the assignor gives the assignee such right, the Managing General Partner
consents to such substitution in its discretion, the assignee pays all
costs of such substitution, and the assignee executes and delivers the
instruments, in form and substance satisfactory to the Managing General
Partner, necessary to effect substitution and confirm the agreement of
the assignee to be bound by the terms and conditions of the Partnership
Agreement.
Under the federal securities laws, Units cannot be transferred in the
absence of an effective registration of the Units under the Securities
Act of 1933, as amended, or an exemption therefrom. The Managing
General Partner has no obligation to register the Units for such
purpose. Such interests cannot be readily liquidated by a Participant in
the event of an emergency, and any such sale would create adverse tax
and economic consequences for the selling Participant. (See "Repurchase
Obligation" and "Transferability of Units".)
TOTAL RELIANCE UPON THE MANAGING GENERAL PARTNER. The Managing General
Partner will have the exclusive right to control the affairs and
business of the Partnership. No prospective investor should purchase any
Units in the Partnership unless he is willing to entrust all aspects of
management of the Partnership to Atlas. (See "Conflicts of Interest" and
"Summary of Partnership Agreement".)
MANAGEMENT OBLIGATIONS OF MANAGING GENERAL PARTNER NOT EXCLUSIVE. Atlas
must devote that amount of time to the Partnership's affairs as it
determines reasonably necessary. Atlas and its Affiliates will be
engaged in other oil and gas activities and other unrelated business
ventures for their own account or for the account of others during the
term of the Partnership. (See "Conflicts of Interest - Other Activities
of the Managing General Partner, the Operator and their Affiliates".)
MANAGING GENERAL PARTNER LIQUID NET WORTH IS NOT GUARANTEED. Atlas, as
Managing General Partner, is primarily responsible for the conduct of
the Partnership's affairs. A significant adverse financial reversal for
Atlas could adversely affect the Partnership and the value of the Units
therein. The net worth of Atlas and Atlas Group is largely based on the
estimated value of producing gas properties that they hold, and is not
readily available in cash absent borrowings or a sale of the properties.
Also, gas prices are volatile and if gas prices decrease, this will have
a direct adverse effect on the estimated value of such properties and,
therefore, on the net worth of Atlas and Atlas Group.
There is no assurance that Atlas and Atlas Group will have the necessary
net worth, currently or in the future, to meet their indemnification
obligation to the Investor General Partners or with respect to Atlas its
other financial commitments under the Partnership Agreement. These risks
are increased because Atlas and Atlas Group have made and will make
similar financial commitments in other Programs. (See "Financial
Information Concerning the Managing General Partner, Atlas Group and the
Partnership".)
DIVERSIFICATION DEPENDS UPON SUBSCRIPTION PROCEEDS. The fewer the number
of Units purchased the fewer the number of wells which the Partnership
will participate in developing which will limit the ability to spread
the risks of drilling. Conversely, as the Partnership size increases the
number of wells will increase, thereby increasing the diversification of
the Partnership. The Managing General Partner anticipates that 35 to 36
wells will be drilled if the maximum Partnership Subscription of
$8,000,000 is received, and 4 to 5 wells will be drilled if only the
minimum Partnership Subscription of $1,000,000 is received. If the
Managing General Partner, however, is unable to secure sufficient
attractive Prospects for a larger Partnership, it is possible that the
average quality of the wells drilled could decline. In addition, greater
demands will be placed on the management capabilities of the Managing
General Partner in a large Partnership. (See "Proposed Activities - In
General".)
GREATER RISKS BORNE BY PARTICIPANTS. Under the cost and revenue sharing
provisions of the Partnership Agreement, the Participants and the
Managing General Partner will share in costs disproportionately to their
sharing of revenues. (See "Participation in Costs and Revenues".)
COMPENSATION AND FEES TO THE MANAGING GENERAL PARTNER REGARDLESS OF
SUCCESS OF THE ACTIVITIES. Atlas and its Affiliates can be expected to
profit from the Partnership even though Partnership activities result in
little or no profit, or a loss to Participants. (See "Compensation".)
DRY HOLE RISK IN DEVELOPMENT DRILLING. Although the Dry Hole risk
associated with drilling Development Wells is greatly reduced, there can
be no assurance that there will not be some Dry Holes. (See "Prior
Activities".)
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<PAGE> 10
RISK OF UNPRODUCTIVE WELLS IN DEVELOPMENT DRILLING. Completion of a
Development Well in the Clinton/Medina geological formation in
Pennsylvania or Ohio, or any other Development Well drilled by the
Partnership in the United States, should not be equated with commercial
success. For example, the Clinton/Medina geologic formation is
characterized by low permeability (ability of hydrocarbon-bearing rock
to allow the flow of oil and gas), low porosity (capacity of rock to
hold oil and gas) and other geological characteristics which may reduce
the profit potential of a well completed to such geologic formation. A
Development Well drilled to the Clinton/Medina or other geologic
formations in the United States may be completed and productive but not
produce enough revenue to return the investment made, even if tax
consequences are considered. With respect to Atlas' prior partnerships
since 1985, twenty-four of the twenty-six partnerships have not yet
returned to the investor 100% of his capital contributions without
taking tax savings into account. However, all of the partnerships are
continuing to make cash distributions and twentyone of the partnerships
were formed in 1990 or subsequent years. (See "- General Risks of the
Oil and Gas Business - Speculative Nature of Gas Business," "Prior
Activities" and "Proposed Activities".)
RISKS REGARDING MARKETING OF GAS. Atlas estimates that a portion of the
Partnership's gas production in the Mercer County area, which is the
primary area of interest, will be transported through Atlas' and its
Affiliates' own pipeline system and sold directly to industrial endusers
in the area where the wells will be drilled. The remainder of the
Partnership's gas from the Mercer County area will be transported
through Atlas' and its Affiliates' pipelines to the interconnection
points maintained with Tennessee Gas Transmission Co., National Fuel
Supply Corporation, National Fuel Gas Distribution Company, East Ohio
Natural Gas Company and Peoples Natural Gas Company. Atlas markets
portions of the gas through long term contracts, short term contracts
and monthly spot market sales. There is no assurance of the price at
which the Partnership's gas will be sold, and generally, the revenues
received by the Partnership will be less the farther the gas is
transported because of the increased transportation costs. (See "General
Risks of the Oil and Gas Business - Risk of Decrease in the Price of
Gas," "Proposed Activities - Sale of Oil and Gas Production" and
"Competition, Markets and Regulation - Marketing".)
The sale to industrial end-users also can raise risks relating to the
credit worthiness of the industrial end-user. In the event that the
industrial end-user does not pay, or delays payment, the Partnership may
not be paid or may experience delays in receiving payment for natural
gas that has already been delivered. For example, after Sharon Steel
Corporation ("Sharon") filed Chapter 11 bankruptcy in 1987, it continued
to purchase most of Atlas' and its Affiliates' natural gas production in
the Mercer County field until it filed a second Chapter 11 bankruptcy in
1992. At that time, Atlas and various programs where Atlas is either the
Managing General Partner and/or operator lost approximately $2,400,000,
for approximately 77 days of gas sales, of which approximately $600,000
was owed to Atlas and the balance was owed to the various programs. (See
"- General Risk of the Oil and Gas Business - Competition in Marketing
Natural Gas Production," "Proposed Activities - Sale of Oil and Gas
Production," "Competition, Markets and Regulation - Marketing" and
"Financial Information Concerning the Managing General Partner, Atlas
Group and the Partnership".)
Also, there can be no assurance that the terms of a gas supply agreement
with an end-user will continue to be favorable over the life of the
wells. Most gas supply agreements provide that prices may be adjusted
upward or downward from time to time in accordance with market
conditions. Also, when the gas supply agreements expire the industrial
end-users may negotiate lower pricing terms. (See "Proposed Activities -
Sale of Oil and Gas Production" and "Competition, Markets and
Registration - Marketing".)
Finally, potential conflicts of interest are presented by the Managing
General Partner's obligation to market the oil and gas production of
other Programs sponsored by the Managing General Partner and its
Affiliates as well as any oil and gas production of the Partnership.
In this regard, the Managing General Partner and its Affiliates have
adopted the following procedures and conditions to reduce some of these
potential conflicts of interest. All benefits from marketing
arrangements or other relationships affecting property of the Managing
General Partner or its Affiliates and the Partnership will be fairly and
equitably apportioned according to the respective interest of each in
such property. Marketing all of the relatively small amounts of oil
produced by the wells generally is not a problem. Atlas anticipates
selling all of such oil to Quaker State Oil Refinery Company or other
oil companies in the area where the well is situated in spot sales. With
respect to natural gas production from the wells, the Managing General
Partner will treat all wells in a geographic area equally concerning to
whom and at what price the Partnership's gas will be sold and to whom
and at what price the gas of other oil and gas Programs which the
Managing General Partner has sponsored or will sponsor will be sold.
The Managing General Partner calculates a weighted average selling price
for all of the gas sold in a geographic area by taking all money
received from the sale of all of the gas sold to its customers in a
geographic area and dividing by the volume of all gas
sold from the wells in that geographic area. This ensures that the
various Programs receive the same selling price for their gas production
in the same geographic area. Also, in the event that Atlas determines
curtailment of production would be in the best interests of its
Programs, production will be curtailed to the same degree in all of the
wells in the same geographic area. On the other hand, if Atlas has not
decided to curtail production, but all of the gas produced cannot be
sold because of limited demand which increases pipeline pressure, then
the production that is sold will be from those wells which are best able
to feed into the pipeline, regardless of which Programs own the wells.
(See "Conflicts of Interest - Procedures to Reduce Conflicts of
Interest.")
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<PAGE> 11
POSSIBLE DELAYS IN PRODUCTION AND SHUT-IN WELLS. Production from wells
may be reduced or Shut-In due to marketing demands which tend to be
seasonal. There is no assurance that Atlas will not have to curtail
production in 1998 or subsequent years awaiting a better price for the
gas. Production from wells drilled in certain areas may also be delayed
for up to several months until construction of the necessary pipelines
and production facilities is completed. However, such delays are not
anticipated by Atlas with respect to any of the wells currently proposed
for the Partnership. (See "Proposed Activities - Sale of Oil and Gas
Production" and "Competition, Markets and Regulation Marketing".)
UNSPECIFIED LOCATION OF A PORTION OF THE PROSPECTS. Atlas intends that
the Partnership will be assigned 100% of the Working Interest and will
drill the currently proposed Prospects described in "Proposed Activities
- - Information Regarding Currently Proposed Prospects" which represent
approximately 80% of the potential $10,000,000 maximum Partnership
Subscription assuming 100% of the Working Interest is acquired by the
Partnership and the Managing General Partner elects to increase the size
of the offering to $10,000,000. The currently proposed Prospects are
all situated in the Mercer County area of Pennsylvania. However, the
Managing General Partner has reserved the right to use up to 15% of the
Partnership Subscription to drill additional Prospects in other areas of
the United States which are not described herein. The Partnership also
may acquire Working Interests in additional Prospects which are not
described if more than $8,000,000 is raised and/or the Partnership
acquires less than 100% of the Working Interest in one or more
Prospects. In addition, Atlas has the right to delete any Prospect
which it deems to be inappropriate for the Partnership because of
adverse events or for which insufficient funds are available, and it may
substitute or adjust the Partnership's interest in the Prospects as it
deems necessary to meet the objectives of the Partnership.
A prospective Participant has no information regarding any additional
and/or substitutional Leases. The Partnership does not have the right
of first refusal in the selection of Leases from the inventory of the
Managing General Partner and its Affiliates, and they may sell their
Leases to other Programs, companies, joint ventures or other persons at
any time. (See "- Total Reliance upon the Managing General Partner,"
above, and "Proposed Activities - Acquisition of Leases" and "Proposed
Activities - Information Regarding Currently Proposed Prospects".)
NO GUARANTEE OF DATA REGARDING CURRENTLY PROPOSED PROSPECTS. The data
included in "Proposed Activities - Information Regarding Currently
Proposed Prospects" has been prepared by Atlas from sources deemed
reliable by it; however, Atlas cannot guarantee that the data reflects
all of the wells drilled in the area or that the amount of gas
production in the area is accurate in all cases. As to certain of the
Prospects the production information is incomplete because the wells are
being operated by third parties and the information is unavailable to
Atlas. Also, some of the wells have only been producing for a short
period of time or are not yet completed or online. (See "Proposed
Activities - Information Regarding Currently Proposed Prospects".)
ATLAS' SUBORDINATION IS NOT A GUARANTEE. Atlas has agreed to subordinate
a portion of its share of Partnership Net Production Revenues generated
from the sale of gas in the Partnership. If the wells, however, produce
gas in small amounts, and/or the price of gas decreases, then even with
subordination the cash flow to the Participants may be very small and
they may not receive a return of their entire investment. (See "-
Borrowings by the Managing General Partner Could Reduce Funds Available
for Its Subordination Obligation" and "Participation in Costs and
Revenues - Subordination of Portion of Managing General Partner's Net
Revenue Share".)
BORROWINGS BY THE MANAGING GENERAL PARTNER COULD REDUCE FUNDS AVAILABLE
FOR ITS SUBORDINATION OBLIGATION. It is anticipated that the Managing
General Partner will pledge, for its own corporate purposes, either its
Partnership interest and/or an undivided interest in the assets of the
Partnership equal to its interest in the revenues of the Partnership.
Such a pledge, in the event of a default to the lender, would reduce the
Partnership Net Production Revenues of Atlas available for Atlas'
subordination obligation. Also, the Managing General Partner is not
obligated to attempt or arrange for or secure any similar financing for
any Participants for their own account. (See "Conflicts of Interest
Other Conflicts" and "Summary of Partnership Agreement".)
POSSIBILITY OF REDUCTION OR UNAVAILABILITY OF INSURANCE. It is possible
that some or all of the insurance coverage which the Partnership has
available may become unavailable or prohibitively expensive. In such
case, Investor General Partners who elected to remain Investor General
Partners after notice that the insurance is being reduced could be
exposed to additional financial risk, and all Participants could be
subject to greater risk of loss of their investment. (See "- General
Risks of the Oil and Gas Business - Drilling Hazards May Be
Encountered," "Proposed Activities - Insurance" and "Tax Aspects
Limitations on Passive Activities".)
POSSIBLE NONPERFORMANCE BY SUBCONTRACTORS. Atlas, as Operator and
general drilling contractor, will subcontract some of the services to
subcontractors. There is a risk that if such subcontractors fail to
timely pay for materials or services on the wells the Partnership could
incur excess costs. To reduce this risk Atlas will use only
subcontractors that have previously performed similar activities for
Atlas in a satisfactory manner, will endeavor to ascertain the financial
condition of the subcontractors and attempt to secure lien releases from
the various subcontractors. (See - "Unlimited Liability of Investor
General Partners," above and "Proposed Activities Drilling and
Completion Activities; Operation of Producing Wells".)
RISK OF PREPAYMENT TO ATLAS. Advance payments by the Partnership to the
Managing General Partner and its Affiliates are prohibited, except where
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<PAGE> 12
advance payments are required to secure tax benefits of prepaid drilling
costs and for a business purpose. Because it is anticipated the
Partnership will be required to pay the entire contract price for the
Partnership Wells immediately because of tax reasons, such funds could
be subject to claims of creditors of such Operator. Currently, Atlas is
not aware of any existing creditors of Atlas or its Affiliates which
would have a claim to prepaid Partnership funds. (See "Financial
Information Concerning the Managing General Partner, Atlas Group and the
Partnership".)
POSSIBLE LEASEHOLD DEFECTS. The Working Interests in the Leases to be
assigned to the Partnership by Atlas will be assigned without title
insurance and there is a risk of title failure. (See "Proposed
Activities - Title to Properties".)
PARTNERSHIP BORROWINGS MAY REDUCE OR DELAY DISTRIBUTIONS. Although it is
not anticipated that the Partnership will borrow any funds, the
Managing General Partner is authorized to increase the working capital
of the Partnership by making advances to the Partnership. Borrowings by
the Partnership can result in delayed or reduced cash distributions
while the loan is being repaid. (See "Capitalization and Source of Funds
and Use of Proceeds" and "- Tax Risks - Possible Taxes in Excess of Cash
Distributions," below.)
ATLAS WILL RECEIVE BENEFIT FROM TRANSFER OF LEASES. The Managing
General Partner will contribute sufficient undeveloped Leases to the
Partnership to drill the Partnership's wells at the Cost of such Leases,
or fair market value if Cost is materially more than fair market value.
The Cost of the Leases will include a portion of the Managing General
Partner's reasonable, necessary and actual expenses for geological,
geophysical, engineering, interest expense, legal, and other like
services allocated to the Partnership's Leases determined using industry
guidelines. The Managing General Partner will receive a benefit from
these transactions. In addition, such contributions could create
conflicts of interest for the Managing General Partner. In the
Partnership's primary area of interest wells will be drilled to test the
Clinton /Medina geologic formation, a blanket geological formation
prevalent in Ohio and Pennsylvania. A Prospect will be deemed to
consist of the drilling or spacing unit on which such well will be
drilled if the Clinton/Medina geological formation to which such well
will be drilled contains Proved Reserves and the drilling or spacing
unit protects against drainage. The development of wells on such
acreage may provide Atlas with offset sites by allowing it to ascertain
at the Partnership's expense the value of adjacent acreage in which the
Partnership would not have any right to participate in developing.
(See "Conflicts of Interest - Conflicts Involving Acquisition of
Leases," "Conflicts of Interest - Other Activities of the Managing
General Partner, the Operator and their Affiliates" and "Proposed
Activities".)
OTHER CIRCUMSTANCES UNDER WHICH DISTRIBUTIONS MAY BE REDUCED OR DELAYED.
Although the Managing General Partner intends to distribute the cash
quarterly, distributions may be deferred to the extent revenues are used
for cost overruns, costs related to completing and Fracturing some of
the wells in a third zone, remedial work to improve a well's producing
capability or if a productive gas well is Shut-In for an indeterminate
time awaiting an acceptable market for such production. In addition, the
Operator pursuant to the Drilling and Operating Agreement has reserved
the right at any time after three years from the date a Partnership Well
has been placed into production to withhold revenues of the well of up
to $200 per month to establish a reserve for the estimated costs of
eventually plugging and abandoning the well, although historically Atlas
has never done so after only three years. There can be no assurance that
cash distributions will be regularly paid or that they will exceed the
amount of the taxes payable by a Participant with respect to his
investment in the Units. (See "Tax Risks - Possible Taxes in Excess of
Cash Distributions".)
CONFLICTS OF INTEREST. There are conflicts of interest between the
Managing General Partner and its Affiliates and the Partnership
including, but not limited to, the compensation paid by the Partnership
to Atlas and the terms of the offering have been determined solely by
Atlas; Atlas may have conflicts of interest in allocating management
time, services and other functions (which are allocated on an as-needed
basis consistent with its fiduciary duties) among the Partnership and
its other Programs; and conflicts of interest may arise concerning which
Leases Atlas will assign to the Partnership for drilling, and which
Leases Atlas will assign to its other Programs. Other than certain
guidelines set forth in "Conflicts of Interest", the Managing General
Partner has no established procedures to resolve a conflict of interest.
(See " - Risks Regarding Marketing of Gas" above, and "Conflicts of
Interest".)
RISK REGARDING PARTICIPATION WITH THIRD PARTIES. It is anticipated that
the Partnership will own 100% of the Working Interest in the wells,
however, the Partnership has reserved the right to take as little as 25%
of the Working Interest. Therefore, it is possible that other Working
Interest owners will participate with the Partnership to drill some of
the wells. Additional financial risks are inherent in any operation
where the cost of drilling, equipping, completing and operating wells is
shared by more than one person. In the event the Partnership pays its
share of such costs, but another Working Interest owner does not, the
Partnership may have to pay the costs of such defaulting party. (See "-
Unlimited Liability of Investor General Partners," above, and "Proposed
Activities".)
DISSOLUTION OF THE PARTNERSHIP OR WITHDRAWAL OR REMOVAL OF THE MANAGING
GENERAL PARTNER MAY HAVE ADVERSE EFFECTS. At any time commencing ten
years after the Offering Termination Date and the Partnership's primary
drilling activities, the Managing General Partner may voluntarily
withdraw as Managing General Partner without the consent of the
Participants upon giving 120 days' written notice of withdrawal to the
Participants. In addition, the Managing General Partner may be removed
at any time upon sixty days' advance written notice to the outgoing
Managing General Partner, by the affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription
(excluding any Units purchased by the Managing General Partner or its
Affiliates). If Atlas would withdraw or be removed as Managing General
Partner of the Partnership and the Participants failed to elect to
continue the Partnership and to designate a substituted Managing General
Partner of the Partnership, the Partnership would terminate and dissolve
and adverse tax and other consequences could result.
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<PAGE> 13
If the Partnership was dissolved the Participants may receive a
distribution of direct property interests. As joint interest owners,
Limited Partners would have joint and several liability for the
obligations or liabilities arising out of joint owner operations and
might find it desirable to obtain insurance protection or dispose of the
property interests, which may be difficult. To reduce this risk the
Managing General Partner will attempt upon liquidation and dissolution
to use its best efforts to sell the Partnership's properties or to cause
some type of entity which would preserve the limited liability of the
former Limited Partners, such as a liquidating trust, to be established
to hold the Partnership's properties. However, even if the properties
were transferred to a liquidating trust upon dissolution of the
Partnership, it might be difficult for the liquidating trust to deal
with such assets and realize their full value. For example, to replace
the management provided by the Managing General Partner, the trustee of
the liquidating trust would need the services of professional operators.
Further, after dissolution and the completion of payments to third party
creditors, the Managing General Partner has priority in liquidation for
any claims of indebtedness before the Participants. Such distributions
may also have adverse income tax consequences to the Participants. (See
"- Unlimited Liability of Investor General Partners," above, and "Tax
Aspects - Disposition of Partnership Interests".)
INDEMNIFICATION AND EXONERATION OF THE MANAGING GENERAL PARTNER WOULD
REDUCE DISTRIBUTIONS. Under the Partnership Agreement the Managing
General Partner and its Affiliates may be indemnified by the Partnership
for losses or liabilities incurred in connection with the activities of
the Partnership if they determined in good faith that the course of
conduct which caused the loss or liability was in the best interest of
the Partnership, they were acting on behalf of or performing services
for the Partnership and such course of conduct was not the result of
their negligence or misconduct. Use of Partnership capital or assets for
such indemnification would reduce amounts available for Partnership
operations or for distribution to Participants. (See "Fiduciary
Responsibility of the Managing General
Partner".)
LIMITED PARTNER LIABILITY FOR REPAYMENT OF CERTAIN DISTRIBUTIONS. Under
the Pennsylvania Revised Uniform Limited Partnership Act (the
"Partnership Act"), the liability of the Limited Partners for the
losses, debts and obligations of the Partnership will generally be
limited to their Agreed Subscription and their allocable share of any
undistributed net profits. However, under the Partnership Act a Limited
Partner may, for a period of two years, be required to repay to the
Partnership any Capital Contributions "wrongfully" returned to a Limited
Partner in violation of the Partnership Agreement or Pennsylvania law,
with interest thereon, including but not limited to any distribution to
the Limited Partners to the extent that, after giving effect to such
distribution, all liabilities of the Partnership, other than liabilities
to the Participants on account of their contributions and to the
Managing General Partner, exceed Partnership assets. Also, a Limited
Partner will be liable for the obligations of the Partnership if he
takes part in the control of the business of the Partnership. (See
"Summary of Partnership Agreement - Liability of Limited Partners".)
POSSIBILITY OF UNAUTHORIZED ACTS OF INVESTOR GENERAL PARTNERS. Under the
Partnership Act a general partner may bind the partnership by his
action, unless the partner in fact has no authority to act for the
partnership and the person with whom he is dealing has knowledge of the
fact he has no such authority. Under the Partnership Act, knowledge may
be actual knowledge of the lack of authority or knowledge of other facts
which in the circumstances would show bad faith. Although there is a
risk that an Investor General Partner might bind the Partnership by his
acts, Atlas believes it will have such exclusive control over the
conduct of the business of the Partnership that it is unlikely a third
party, in the absence of bad faith, would deal with an Investor General
Partner as to the Partnership's business.
RISKS THAT REPURCHASE OBLIGATION MAY NOT BE FUNDED AND REPURCHASE PRICE
MAY NOT REFLECT FULL VALUE. Subject to certain conditions, beginning in
2001 the Participants may present their interests for purchase by the
Managing General Partner. The Managing General Partner anticipates
purchasing such interests primarily through cash flow and secondarily
through corporate borrowings secured by the interests purchased. There
is a risk that the Managing General Partner, or its Affiliates, will not
have the necessary cash flow or be able to arrange financing for such
purposes on terms which are reasonable as determined by the Managing
General Partner in its sole discretion, and in such event the Managing
General Partner is able to suspend its repurchase obligation. In
addition, the Managing General Partner has and will incur similar
presentment obligations in connection with other Programs which it or
its Affiliates may sponsor.
The purchase price to be paid to the Participant will be based upon the
Participant's share of the net assets and liabilities of the Partnership
based upon his Agreed Subscription. The purchase price will include:
(i) 70% of the present worth of future net revenues from the
Partnership's Proved Reserves, (ii) Partnership cash on hand, (iii)
prepaid expenses and accounts receivable of the Partnership, less a
reasonable amount for doubtful accounts, and (iv) the estimated market
value of all assets of the Partnership not separately specified above,
determined in accordance with standard industry valuation procedures.
The amount attributable to Partnership reserves will be determined based
on an engineering report prepared by the Managing General Partner and
reviewed by an Independent Expert. The Participants will be provided a
computation of the total oil and gas reserves of the Partnership and the
present worth thereof, employing a discount rate equal to 10%, a
constant price for the oil and basing the price of gas upon the existing
gas contract(s) at the time of the repurchase. The reserve report must
be within 120 days of the commencement of the
repurchase offer. There will be deducted from the foregoing sum: (i)
all Partnership debts, obligations and other liabilities, including
accrued expenses, and (ii) any distributions made to the Participants
between the date of the request and the actual payment; provided,
however, that if any cash distributed was derived from the sale,
subsequent to the request, of oil, gas or other mineral production or of
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<PAGE> 14
a producing property owned by the Partnership, for purposes of
determining the reduction of the purchase price, such distributions will
be discounted at the same rate used to take into account the risk
factors employed to determine the present worth of the Partnership's
reserves. The purchase price may be further adjusted by the Managing
General Partner for estimated changes therein from the date of such
reserve report to the date of payment of the purchase price to the
Participants: (i) by reason of production or sales of, or additions to,
reserves and lease and well equipment, sale or abandonment of leases,
and similar matters occurring prior to payment of the purchase price to
the selling Participant, and (ii) by reason of any of the following
occurring prior to payment of the purchase price to the selling
Participant: changes in well performance, increases or decreases in the
market price of oil, gas or other minerals, revision of regulations
relating to the importing of hydrocarbons, changes in income, ad valorem
and other tax laws (e.g., material variations in the provisions for
depletion) and similar matters.
Because of the difficulty in accurately estimating oil and gas reserves,
the purchase price may not reflect the full value of the Partnership
property to which it relates. Such estimates are merely appraisals of
value and may not correspond to realizable value. There can be no
assurance that the purchase price paid for the interest and any revenues
received by the Participant prior to the repurchase will be equal to
the original price paid for such interests. Conversely, a Participant
might realize a greater return if he retains the Units, which the
Participant may elect, rather than sells the Units as provided herein.
(See "Conflicts of Interest - Conflicts Regarding Repurchase Obligation"
and "Repurchase Obligation".)
POSSIBLE PARTICIPATION IN ROLL-UP. There is no assurance that at some
indeterminate time in the future the Partnership will not become
involved in a "Roll-Up" transaction. In that event, there could be
changes in the rights, preferences, and privileges of the Participants
in the Partnership; such as increasing the compensation of the Managing
General Partner, amending the voting rights of the Participants, listing
the Units on a national securities exchange or on NASDAQ, changing the
fundamental investment objectives of the Partnership, or materially
altering the duration of the Partnership. However, any Participant who
votes "no" on a Roll-Up proposal will be offered a choice of (i)
accepting the securities of the Roll-Up Entity offered in the proposed
Roll-Up; (ii) remaining a Participant in the Partnership and preserving
his interests in the Partnership on the same terms and conditions as
existed previously; or (iii) receiving cash in an amount equal to his
pro-rata share of the appraised value of the Partnership's net assets.
(See "Conflicts of Interest - Policy Regarding Roll-Ups" .)
GENERAL RISKS OF THE OIL AND GAS BUSINESS
SPECULATIVE NATURE OF GAS BUSINESS. Gas exploration is an inherently
speculative activity. The Managing General Partner cannot predict the
amount of gas recoverable from any Prospect, the time it will take to
recover the gas or the price at which the gas will be marketed. Because
of the risk involved, there can be no guarantee that the Participants
will recover all of their investment or that their investment will be
profitable. (See "Proposed Activities - Intended Areas of Operations".)
RISKS OF DECREASE IN THE PRICE OF GAS. The price at which the gas can be
sold will depend on factors largely beyond the control of the
Partnership. For example, during most of the 1980's and 1990's oil and
gas prices have been unstable. If there is a significant reduction in
the price of gas, it will have a material adverse impact on the net
revenues which the Partnership will derive from the production of its
wells, possibly even precluding or limiting distributions to the
Participants. There is a substantial risk that the price of gas will
continue to be volatile and may decrease. (See "Proposed Activities Sale
of Oil and Gas Production" and "Competition, Markets and Regulation -
Marketing".)
DRILLING HAZARDS MAY BE ENCOUNTERED. There are numerous natural hazards
involved in the drilling of wells including unexpected or unusual
formations, pressures and blowouts that may result in possible damage to
property and third parties including surface damage, bodily injury,
damage to and loss of equipment, reservoir damage and loss of reserves.
The Partnership may also be subject to liability for pollution such as
accidental leakages, abuses of the environment and other similar damages
incurred during drilling. Although the Partnership will maintain
insurance coverage in the amounts the Managing General Partner deems
appropriate, it is possible that insurance coverage may be insufficient.
Uninsured liabilities would reduce the funds available to the
Partnership, may result in the loss of Partnership properties and may
create liability for Investor General Partners. (See "Proposed
Activities - Insurance".)
COMPETITION IN MARKETING NATURAL GAS PRODUCTION. There is competition
for the most desirable Leases, and the Partnership will encounter
intense competition in the sale of its gas production. The quantities of
gas to be delivered by the Partnership may also be affected by factors
beyond its control, such as the inability of the wells to deliver gas at
pipeline quality and pressure, premature exhaustion of reserves, changes
in governmental regulations affecting allowable production and priority
allocations and price limitations imposed by federal and state
regulatory agencies. (See " - Special Risks of the Partnership - Risks
Regarding Marketing of Gas", "Proposed Activities Sale of Oil and Gas
Production" and "Competition, Markets and Regulation".)
RISK OF NEW GOVERNMENTAL REGULATIONS. Oil and gas operations in the
United States, including lease acquisitions and other energy-related
activities, are subject to extensive government regulation and to
interruption or termination by governmental authorities on account of
ecological and other considerations. Proposals concerning regulation and
taxation of the oil and gas industry are constantly before Congress. It
is impossible to predict which proposals, if any, will be enacted into
law and, if enacted, the exact effect they might have on the
Partnership. (See "Competition, Markets and Regulation".)
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<PAGE> 15
POTENTIAL LIABILITY FOR POLLUTION; ENVIRONMENTAL MATTERS. The
Partnership may be subject to liability for pollution and other damages
due to hazards which cannot be insured against or will not be insured
against due to prohibitive premium costs or for other reasons. In this
regard the Investor General Partners might become liable for obligations
in excess of their Agreed Subscriptions for environmental claims that
arose during drilling activities, but were not discovered until after
the Investor General Partners converted to Limited Partner status.
Environmental regulatory matters also could increase substantially the
cost of doing business, and may cause delays in producing natural gas
from the Partnership's wells or require the modification of operations
in certain areas. (See "Competition, Markets and Regulation".)
UNCERTAINTY OF COSTS. There is no assurance that over the life of the
Partnership there will not be fluctuating or even increasing costs in
doing business. This would directly affect the Managing General
Partner's ability to operate the Partnership's wells and property at
acceptable price levels. (See "Competition, Markets and Regulation
Competition".)
TAX RISKS
TAX CONSEQUENCES MAY VARY DEPENDING ON INDIVIDUAL CIRCUMSTANCES. There
are various risks associated with the federal income tax aspects of an
investment in the Partnership. Each potential investor is urged to
consult his own tax advisor concerning the effects of federal income tax
law and regulations and interpretations thereof, on his own tax
situation. (See "Tax Aspects".)
RISK OF CHANGES IN THE LAW. The Partnership and the Participants could
be adversely affected by changes in the tax laws that may result through
future Congressional action, Tax Court or other judicial decisions, or
interpretations by the IRS. (See "Tax Aspects".)
NO ADVANCE RULING FROM THE IRS ON TAX CONSEQUENCES. The Managing General
Partner has received an opinion of counsel that, more likely than not,
the Partnership will be classified as a partnership for federal income
tax purposes and not as a corporation or a publicly traded partnership.
The opinion of counsel is not binding on the IRS and is based upon
certain factual assumptions which may or may not prove to be true. No
advance ruling on this or any other tax consequence of an investment in
the Partnership will be requested. (See "Tax Aspects - Partnership
Classification".) Nevertheless,
Special Counsel's tax opinion includes its opinion that the significant
tax benefits of the Partnership, in the aggregate, more likely than not
will be realized as contemplated by this Prospectus. (See "Tax Aspects -
Summary of Tax Opinion".)
POSSIBLE TAXES IN EXCESS OF CASH DISTRIBUTIONS. A Participant's share of
Partnership revenues applied to principal on any Partnership loans from
Atlas will be included in his taxable income. Although Partnership
income may be offset in part by depletion or other deductions, interest
on Partnership borrowings will be subject to certain restrictions on the
deduction of "investment interest" and the limitation on passive
activity losses in the case of Limited Partners and no deductions will
be allowed for repayments of principal. Thus, a Participant may become
subject to income tax liability in excess of cash actually received from
the Partnership. To the extent the Partnership has cash available for
distribution, however, it is Atlas' policy that Partnership
distributions will not be less than the Participants' estimated income
tax liability with respect to Partnership income. (See "Tax Aspects
Limitations on Passive Activities," "- Limitations on Deduction of
Investment Interest," and "- Allocations".)
Under the Partnership Agreement, taxable income or gain may be allocated
to the Participants in the event there are deficits in the Participants'
Capital Accounts even though such Participants are not allocated a
corresponding amount of Partnership revenues. Also, there may be tax
liability in excess of cash distributions to the Participants because
Partnership production revenues are retained by the Operator beginning
three years after the wells are placed in production to establish a
reserve for the estimated costs of eventually plugging and abandoning
Partnership Wells, although historically Atlas has never done this after
only three years. In addition, the taxable disposition of Partnership
property or a Participant's interest in the Partnership may result in
income tax liability in excess of cash distributions. (See "Tax Aspects
- - Sale of the Properties" and "Disposition of Partnership Interests".)
PARTNERSHIP ALLOCATIONS ARE SUBJECT TO CHALLENGE BY THE IRS IN THE EVENT
OF AN AUDIT. The allocations of Partnership costs, revenues and related
tax items between the Managing General Partner and the Participants are
subject to Treasury Regulations and the proper application of many
provisions of the regulations is currently unclear. Should the IRS
successfully challenge the allocation provisions contained in the
Partnership Agreement, Participants could incur a
greater tax liability. However, assuming the effect of the allocations
set forth in the Partnership Agreement is substantial in light of a
Participant's tax attributes that are unrelated to the Partnership, in
Special Counsel's opinion it is more likely than not that such
allocations will govern each Participant's distributive share to the
extent they do not cause or increase deficit balances in the
Participants' Capital Accounts. (See "Tax Aspects - Allocations".)
1997 TAX DEDUCTIONS ARE SUBJECT TO CHALLENGE BY THE IRS IN THE EVENT OF
AN AUDIT. The Managing General Partner anticipates that all of the
Partnership Subscription will be expended in 1997, and that the
Participants' allocable share of income and deductions generated thereby
will be reflected on the Participants' tax returns for that period. Any
net loss of the Partnership allocable to a Limited Partner (but not an
Investor General Partner) generally will be subject to the "passive
activity" loss limitation rules under the Tax Reform Act of 1986. In
addition, there is no guarantee that if the Partnership is audited the
IRS will not challenge the deductions claimed by the Partnership. The
time for assessment of tax resulting from adjustments to the
Partnership's information tax returns may extend beyond the time for
other assessments. (See "Tax Aspects - Limitations on Passive
Activities," "-1997 Expenditures," "- Availability of Certain
Deductions" and "- Intangible Drilling and Development Costs".)
Depending primarily on when the Partnership Subscription is received, it
is anticipated that the Partnership will prepay in 1997 most, if not
all, of its Intangible Drilling Costs for wells the drilling of which
will be commenced in 1998. The deductibility in 1997 of such advance
payments cannot be guaranteed. (See "Tax Aspects - Drilling Contracts".)
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<PAGE> 16
POSSIBLE ALTERNATIVE MINIMUM TAX LIABILITY. Alternative minimum taxable
income of "independent producers," which includes most investors, cannot
be reduced by more than 40% in the 1997 tax year by reason of the repeal
of the preference item for intangible drilling and development costs.
(See "Tax Aspects - Minimum Tax - Tax Preferences".)
INVESTMENT INTEREST DEDUCTIONS MAY BE LIMITED. Interest paid to acquire
or carry investment assets is deductible only to the extent of net
investment income. Because investment income includes income from
activities, such as the Partnership in the case of Investor General
Partners, which are not passive activities and in which the taxpayer
does not materially participate, losses from the Partnership will reduce
an Investor General Partner's investment income and may adversely affect
the deductibility of the Investor General Partner's investment interest
expense, if any. (See "Tax Aspects - Limitations on Deduction of
Investment Interest".)
LACK OF TAX SHELTER REGISTRATION. Atlas believes that the Partnership
will not be a tax shelter required to register with the IRS and does not
intend to cause the Partnership to register as such with the IRS. If it
is subsequently determined that the Partnership was required to be
registered with the IRS as a tax shelter, each Participant would be
liable for a $250 penalty for failure to include the tax registration
number of the Partnership on his tax return, unless such failure was due
to reasonable cause. However, based on the representations of the
Managing General Partner, Special Counsel has expressed the opinion that
the Partnership, more likely than not, is not required to be registered
with the IRS as a tax shelter. (See "Tax Aspects - Lack of Registration
as a Tax Shelter".)
STATE AND LOCAL TAXES MAY APPLY. A Participant may incur tax liability
with respect to Partnership income in the state and locality in which he
resides as well as the states and localities where the Partnership's
Development Wells are situated. Participants should consult with their
own tax advisors concerning the state and local tax consequences of an
investment in the Partnership. (See "Tax Aspects - State and Local
Taxes.)
CAPITALIZATION AND SOURCE OF FUNDS AND USE OF PROCEEDS
IN GENERAL
The Units will not be subject to Assessments. The Partnership will not
call upon the Participants for additional amounts of capital beyond
their Agreed Subscriptions. However, in the case of Investor General
Partners, if the insurance proceeds, Partnership assets, and Atlas' and
Atlas Group's indemnification of the Investor General Partners were not
sufficient to satisfy a Partnership liability for which the Investor
General Partners were also liable, the Managing General Partner could
call upon Investor General Partners to make additional Capital
Contributions to the Partnership from their personal assets to satisfy
such liability.
The drilling of the wells is expected to be funded entirely through the
Partnership Subscription and the Capital Contributions of the Managing
General Partner. In the event the Partnership requires additional funds
as a result of cost overruns in the drilling or completion of wells,
which the Managing General Partner does not anticipate, other than
completing and Fracturing some of the wells in a third zone, or
additional development or remedial work is subsequently required for a
well, then such funds may be provided by borrowings as discussed below
in "- Subsequent Source of Funds and Borrowings" or by the retention of
Partnership revenues. The Managing General Partner does not anticipate,
however, that any borrowings will be required prior to any availability
of revenues from production.
SOURCE OF FUNDS
Upon completion of the offering, the Capital Contributions to the
Partnership of the Participants will range from $1,000,000 to $8,000,000
unless Atlas in its sole discretion offers not more than 200 additional
Units and increases the Participants' Capital Contributions to the
Partnership to not more than $10,000,000. Assuming all of the Leases
are situated in the Mercer County area the Capital Contributions of the
Managing General Partner will range from $198,723 if the Capital
Contributions of the Participants are $1,000,000, to $1,589,705 if the
Capital Contributions of the Participants are $8,000,000, to $1,987,235
if the Capital Contributions of the Participants are $10,000,000. See
the "- Managing General Partner Capital" table below for a breakout of
the costs paid by the Managing General Partner. Therefore, the total
amount of Capital Contributions available to the Partnership from the
Participants and the Managing General Partner would range from
$1,198,723 if 100 Units are sold, to $9,589,705 if 800 Units are sold,
to $11,987,235 if 1,000 Units are sold.
USE OF PROCEEDS
The following tables present information respecting the financing of the
Partnership in three different circumstances: (1) if 1,000 Units
($10,000,000) are sold, (2) if 800 Units ($8,000,000) are sold, and (3)
if the minimum 100 Units ($1,000,000) are sold. Substantially all of the
Partnership Subscription available to the Partnership will be disbursed
for the following purposes and in the following manner:
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<PAGE> 17
<TABLE>
<CAPTION>
PARTICIPANT CAPITAL
ENTITY
RECEIVING
<S> <C> <S> <C> <C> <S> <C>
PAYMENT NATURE OF PAYMENT 1,000 UNITS SOLD % (1) 800 UNITS SOLD % (1)
100 UNITS SOLD % (1)
$10,000,000 100% $ 8,000,000 100%
$ 1,000,000 100%
LESS: PUBLIC OFFERING EXPENSES
Broker-Dealers Dealer-Manager fee,
Sales Commissions,
and reimbursement
for bona fide
accountable due
diligence expenses (2) 0 0 0 0
0 0
Various Organization Costs (2) 0 0 0 0
0 0
AMOUNT AVAILABLE FOR INVESTMENT:
The MGP Capital available
for drilling and
completing wells $10,000,000 100% $ 8,000,000 100%
$ 1,000,000 100%
The Managing General
Partner Leases (3) 0 0 0 0
0 0
</TABLE>
(1) The percentage is based upon total Participants' Agreed
Subscriptions and excludes the Managing General Partner's Capital
Contribution.
(2) Organization and Offering Costs will be paid by the Managing
General Partner. However, the Managing General Partner will not be
credited with the payment of Organization and Offering Costs in excess
of 15% of the Partnership Subscription towards its required Capital
Contribution of 15%.
(3) Instead of making a contribution in cash for Leases, the Leases
will be contributed to the Partnership in kind by the Managing General
Partner and valued at its Cost or fair market value if Cost is
materially
more than fair market value. In the Mercer County area, which is the
Partnership's primary area of interest, the Managing General Partner's
cost is $3,600 per Prospect. The Managing General Partner will
contribute approximately 4.49 Prospects if 100 Units are sold, 35.9
Prospects if 800 Units are sold, and 44.9 Prospects if 1,000 Units are
sold and all of the Prospects are situated in the Mercer County area.
<TABLE>
MANAGING GENERAL PARTNER CAPITAL
<S>
<S>
ENTITY
RECEIVING
PAYMENT NATURE OF PAYMENT 1,000 UNITS SOLD % (1) 800 UNITS SOLD % (1)
100 UNITS SOLD % (1)
TOTAL MANAGING GENERAL PARTNER
CAPITAL $1,987,235 100% $1,589,705 100%
$198,723 100%
LESS: PUBLIC OFFERING EXPENSES
Broker-Dealers $1,050,000 53% $840,000 53%
$105,000 53%
Dealer-Manager fee,
Sales Commissions,
and reimbursement
for bona fide
accountable due
diligence expenses (2)
Various Organization Costs (2) $450,000 23% $360,000 23%
$45,000 23%
AMOUNT AVAILABLE FOR INVESTMENT:
The MGP Capital available for
drilling and completing
wells $325,581 16% $260,465 16%
$32,558 16%
The MGP Leases (3) $161,654 8% $129,240 8%
$16,165 8%
</TABLE>
(1) The percentage is based upon the Managing General Partner's
Capital Contribution and excludes the Participants' Agreed
Subscriptions.
(2) Organization and Offering Costs will be paid by the Managing
General Partner. However, the Managing General Partner will not be
credited with the payment of Organization and Offering Costs in excess
of 15% of the Partnership Subscription towards its required Capital
Contribution of 15%.
- ---------------------------------------------------------------------
<PAGE> 17
(3) Instead of making a contribution in cash for Leases, the Leases
will be contributed to the Partnership in kind by the Managing General
Partner at its Cost or fair market value if Cost is materially more than
fair market value. In the Mercer County area, which is the Partnership's
primary area of interest, the Managing General Partner's cost is $3,600
per Prospect. The Managing General Partner will contribute approximately
4.49 Prospects if 100 Units are sold, 35.9 Prospects if 800 Units are
sold, and 44.9 Prospects if 1,000 Units are sold and all of the
Prospects are situated in the Mercer County area.
SUBSEQUENT SOURCE OF FUNDS AND BORROWINGS
As indicated above, it is anticipated that substantially all of the
Partnership's initial capital will be committed or expended following
the offering. Any additional funds which may subsequently be required
will be withheld from production from Partnership Wells or borrowings by
the Partnership from Atlas or its Affiliates, although Atlas is not
contractually committed to make such a loan. There will be no borrowings
from third parties.
The amount that may be borrowed by the Partnership from Atlas and its
Affiliates may not at any time exceed 5% of the Partnership Subscription
and must be without recourse to the Participants. The Partnership's
repayment of any such borrowings would be from Partnership production
revenues and would reduce or delay cash distributions to the
Participants. See "Conflicts of Interest Procedures to Reduce Conflicts
of Interest," paragraph (9), for the terms of any loan with Atlas.
COMPENSATION
A narrative presentation of the items of compensation paid to the
Managing General Partner and its Affiliates from the Partnership is set
forth below. Following the narrative presentation is a tabular
presentation of the estimated Administrative Costs and Direct Costs to
be borne by the Partnership.
OIL AND GAS REVENUES. The Managing General Partner will be allocated 25%
of the oil and gas revenues of the Partnership in return for paying
Organization and Offering Costs equal to 15% of the Partnership
Subscription, 14% of Tangible Costs and contributing all Leases to the
Partnership at Cost, or fair market value if Cost is materially more
than fair market value. (See "Participation in Costs and Revenues.)
LEASE COSTS. The Managing General Partner will contribute sufficient
undeveloped Leases to the Partnership to drill the Partnership's wells
at the Cost of such Leases, or fair market value if Cost is materially
more than fair market value. The Cost of the Leases will include a
portion of the Managing General Partner's reasonable, necessary and
actual expenses for geological, geophysical, engineering, interest
expense, legal, and other like services allocated to the Partnership's
Leases determined using industry guidelines which are set forth in
"Proposed Activities - Acquisition of Leases". The Managing General
Partner will not retain any Overriding Royalty Interest for itself from
such Leases. Assuming all of the Leases are in the Mercer County area
and the Partnership acquires 100% of the Working Interest in 4.49
Prospects if the minimum Partnership Subscription is received, 35.9
Prospects if the maximum Partnership Subscription is received, and 44.9
Prospects if the Managing General Partner increases the size of the
offering to $10,000,000, it is estimated that Atlas' credit for Lease
costs at $3,600 per Prospect will range from $16,165, to $129,240, to
$161,654, respectively. (See "Proposed Activities - Acquisition of
Leases".)
Such contributions could create conflicts of interest for the Managing
General Partner. The majority of the wells will be drilled by the
Partnership to test the Clinton/Medina geologic formation, a blanket
geological formation prevalent in Ohio and Pennsylvania. A Prospect will
be deemed to consist of the drilling or spacing unit on which such well
will be drilled if the Clinton/Medina geological formation to which such
well will be drilled contains Proved Reserves and the drilling or
spacing unit protects against drainage. The development of wells on such
acreage may provide Atlas with offset sites by allowing it to ascertain
at the Partnership's expense the value of adjacent acreage in which the
Partnership would not have any right to participate in developing. (See
"Conflicts of Interest - Conflicts Involving Acquisition of Leases,"
"Conflicts of Interest - Other Activities of the Managing General
Partner, the Operator and their Affiliates" and "Proposed Activities".)
ADMINISTRATIVE COSTS. The Managing General Partner and its Affiliates
will receive an unaccountable, fixed payment reimbursement for their
Administrative Costs determined by the Managing General Partner to be an
amount equal to $75 per well per month, which will be proportionately
reduced to the extent the Partnership acquires less than 100% of the
Working Interest in the well. The unaccountable, fixed payment
reimbursement of $75 per well per month will not be increased in amount
during the term of the Partnership and will not be received for plugged
and abandoned wells. Further, Atlas, as Managing General Partner, will
not be reimbursed for any additional Partnership Administrative Costs
and the unaccountable, fixed payment reimbursement of $75 per well per
month will be the entire payment to reimburse Atlas for the
Partnership's Administrative Costs. See "Estimate of Administrative
Costs and Direct Costs to Be Borne by the Partnership" for an estimate
of those costs in the first twelve months.
DRILLING CONTRACTS. The Partnership will enter into a drilling contract
with Atlas to drill and complete the Partnership Wells at a competitive
industry rate. For each well completed and placed into production in
the Appalachian Basin, the Partnership will pay Atlas an amount equal to
$37.39 per foot to the depth of the well at its deepest penetration. For
each well which the Partnership elects not to complete, the Partnership
will pay Atlas an amount equal to $20.60 per foot to the depth of the
well. The footage contract will cover all costs other than the cost of
a pumping unit for an oil well, which is not anticipated, and the cost
of a third completion and Frac. Such costs will be charged at Cost plus
10% if provided by third parties and at competitive rates in the area if
provided by Atlas or its Affiliates. The cost of the well will be
proportionately reduced to the extent the Partnership acquires less than
100% of the Working Interest. (See the Drilling and Operating Agreement,
Exhibit (II) to the Partnership Agreement.)
The amount of compensation which Atlas could earn as a result of these
arrangements is dependent upon many factors, including the actual cost
of the wells and the number of wells drilled. Atlas anticipates that in
the Mercer County area of the Appalachian Basin it will have
reimbursement of general and administrative overhead of $3,600 per well
and a profit of approximately 15% ($33,960) per well for a well drilled
to a depth of 6,150 feet. Assuming the Partnership acquires 100% of the
Working Interest in 4.49 Prospects if the minimum Partnership
Subscription is received, 35.9 Prospects if the maximum Partnership
Subscription is received and 44.9 Prospects if the Managing General
Partner increases the size of the offering to $10,000,000 and all of the
wells are situated in the Mercer County area and drilled to 6,150 feet
and completed, it is estimated that Atlas' general and administrative
reimbursement and profit will be approximately $168,644 if the minimum
Partnership Subscription is received, $1,348,404 if the maximum
Partnership Subscription is received, and $1,686,444 if the Managing
General Partner increases the size of the offering to $10,000,000.
PER WELL CHARGES. When the wells have commenced production Atlas, as
Operator, will be reimbursed at actual cost for all direct expenses
incurred on behalf of the Partnership and will receive well supervision
fees for operating and maintaining the wells during producing operations
at a competitive rate. In the Appalachian Basin the competitive rate is
currently $275 per well per month subject to an annual adjustment for
inflation. Assuming the Partnership acquires 100% of the Working
Interest in 4.49 Prospects if the minimum Partnership Subscription is
received, 35.9 Prospects if the maximum Partnership Subscription is
received, and 44.9 Prospects if the Managing General Partner increases
the size of the offering to $10,000,000, and all of the wells are
situated in the Appalachian Basin and drilled and completed, it is
estimated that these costs will be approximately $14,817 if the minimum
Partnership Subscription is received, $118,470 if the maximum
Partnership Subscription is received, and $148,170 if the Managing
General Partner increases the size of the offering to $10,000,000, for
the Partnership's first twelve months of operations. The well
supervision fees will be proportionately reduced to the extent the
Partnership acquires less than 100% of the Working Interest in the well.
TRANSPORTATION AND MARKETING FEES. Mercer Gas Gathering, Inc., an
Affiliate of Atlas, will deliver natural gas produced by the Partnership
to either industrial end-users in the area or interstate pipeline
systems and local distribution companies. Atlas Gas Marketing, Inc., an
Affiliate of Atlas, will provide marketing services to the Partnership.
The Partnership will pay a combined transportation and marketing charge
at a competitive rate, which is currently 29 cents per MCF. (See
"Management".)
DEALER-MANAGER FEES. The Dealer-Manager will receive from the
Partnership on each Unit sold to an investor a 2.5% Dealer-Manager fee,
a 7.5% Sales Commission and a .5% reimbursement of the Selling Agents'
accountable due diligence expenses. If the minimum Partnership
Subscription of $1,000,000 is received the Dealer-Manager will receive
$105,000, if the maximum Partnership Subscription is received the Dealer-
Manager will receive $840,000 and if the offering is increased to
$10,000,000 the Dealer-Manager will receive $1,050,000. The 7.5% Sales
Commission and the .5% accountable due diligence expense will be
reallowed to the Selling Agents and the 2.5% Dealer-Manager fee will be
reallowed to the wholesalers.
OTHER COMPENSATION. Atlas or an Affiliate will be reimbursed by the
Partnership for any loan Atlas or an Affiliate may make to or on behalf
of the Partnership and will have the right to charge a competitive rate
of interest on any such loan. If Atlas provides equipment, supplies and
other services to the Partnership it may do so at competitive industry
rates. (See "Conflicts of Interest".)
ESTIMATE OF ADMINISTRATIVE COSTS AND
DIRECT COSTS TO BE BORNE BY THE PARTNERSHIP
The Managing General Partner estimates that the unaccountable, fixed
payment reimbursement for Administrative Costs allocable to the
Partnership's first twelve months of operation will not exceed
approximately $4,041 if the minimum Partnership Subscription is
received (4.49 wells at $75 per well per month), approximately $32,310
if the maximum Partnership Subscription is received (35.9 wells at $75
per well per month), and approximately $40,410 if the Managing General
Partner increases the size of the offering to $10,000,000 (44.9 wells
at $75 per well per month). Administrative Costs are all customary and
routine expenses incurred for the conduct of Partnership
administration, including: legal, finance, accounting, secretarial,
travel, office rent, telephone, data processing and other items of a
similar nature. No Administrative Costs charged will be duplicated
under any other category of expense or cost.
Minimum Maximum If Managing General
Partnership Partnership Partner Increases
Subscription Subscription Offering
($1,000,000) ($8,000,000) ($10,000,000)
Unaccountable, fixed payment reimbursement for Administrative Costs
$4,041 $32,310 $40,410
Direct Costs will be billed directly to and paid by the Partnership to
the extent practicable. The anticipated Direct Costs set forth below
for the Partnership's first twelve months of operation may vary from
the estimates shown for numerous reasons which cannot accurately be
predicted, such as the number of Participants, the number of wells
drilled, the Partnership's degree of success in its activities, the
extent of any production problems, inflation and various other factors
involving the administration of the Partnership.
Minimum Maximum If Managing
General
Partnership Partnership Partner Increases
Subscription Subscription Offering
($1,000,000) ($8,000,000) ($10,000,000)
DIRECT COSTS
External Legal $ 6,000 $ 6,000 $6,000
Audit Fees 2,500 6,000 6,000
Independent Engineering
Reports 1,500 3,000 3,000
TOTAL $10,000 $15,000 $15,000
TERMS OF THE OFFERING
SUBSCRIPTION TO THE PARTNERSHIP
The Partnership will offer a minimum of 100 Units and a maximum of 800
Units. However, if subscriptions for all 800 Units being offered are
obtained, the Managing General Partner, in its sole discretion, may
offer
not more than 200 additional Units and increase the maximum aggregate
subscriptions with which the Partnership may be funded to not more than
1,000 Units ($10,000,000). Units in the Partnership are offered at a
subscription price of $10,000 per Unit. The minimum subscription per
investor is one Unit; however, the Managing General Partner, in its
discretion, may accept one-half Unit ($5,000)
subscriptions. Larger Agreed Subscriptions will be accepted in $1,000
increments. The Managing General Partner will have exclusive management
authority for the Partnership. Subscribers who purchase Units as
Investor General Partners or as Limited Partners will serve as
Participants of the Partnership.
PAYMENT OF SUBSCRIPTIONS
Agreed Subscriptions are payable 100% in cash at the time of
subscribing.
PARTNERSHIP CLOSINGS AND ESCROW
Subject to the receipt of the minimum Partnership Subscription of
$1,000,000, the Managing General Partner may close the offering period
on or before December 31, 1997 (the "Offering Termination Date"). No
subscriptions to the Partnership will be accepted after receipt of the
maximum Partnership Subscription (including the additional 200 Units
which may be offered) or the Offering Termination Date, whichever event
occurs first. Pending receipt of the minimum Partnership Subscription,
subscription deposits in the escrow account will earn interest at
National City Bank of Pennsylvania's variable market rate for shortterm
deposits. If subscriptions for $1,000,000 are not received by December
31, 1997, the sums deposited in the escrow account will be returned to
the subscribers with interest thereon. The Managing General Partner and
its Affiliates may buy up to 10% of the Units, which will not be applied
towards the minimum Partnership Subscription required for the
Partnership to begin operations. (See "Conflicts of Interest Conflicts
Between Participants.")
Subscription payments will be held in a separate interest bearing escrow
account at National City Bank of Pennsylvania pending the receipt of the
minimum Partnership Subscription. Subject to the receipt of the minimum
partnership Subscription, there will be two closings which are
tentatively set for December 1, 1997 ("Initial Closing Date"), and
December 31, 1997. The Partnership will begin all activities, including
drilling, after the Initial Closing Date. A Participant will receive
interest on his Agreed Subscription up until the Offering Termination
Date at the market rate paid by National City Bank of Pennsylvania. Any
interest earned on Agreed Subscriptions will be credited to the accounts
of the respective subscribers and paid approximately eight weeks after
the Offering Termination Date. Subscriptions will not be commingled with
the funds of the Managing General Partner or its Affiliates nor shall
subscriptions be subject to the claims of their creditors.
Subscription proceeds will be invested during the escrow period only in
institutional investments comprised of or secured by securities of the
United States government. The funds in the Partnership account, pending
their use for Partnership operations, may be temporarily invested in
income producing short-term, highly liquid investments, where there is
appropriate safety of principal, such as U.S. Treasury Bills. In the
event that the Managing General Partner determines that the Partnership
may be deemed an investment company under the Investment Company Act of
1940, such investment activity will cease.
OFFERING PERIOD
The offering period will commence on the date of this Prospectus and
will terminate on a date to be determined by the Managing General
Partner, in its sole discretion. In no event, however, will the offering
period extend beyond the earlier of December 31, 1997, or the receipt of
Partnership subscriptions for $10,000,000.
ACCEPTANCE OF SUBSCRIPTIONS
The execution of the Subscription Agreement by a subscriber constitutes
a binding offer to buy Units in the Partnership and an agreement to hold
the offer open until the Agreed Subscription is accepted or rejected by
the Managing General Partner. Once an investor subscribes
he will not have any revocation rights. The Managing General Partner has
the discretion to refuse to accept any Agreed Subscription without
liability to the subscriber. Agreed Subscriptions will be accepted or
rejected by the Partnership within thirty days of their receipt; if
rejected, all funds will be returned to the subscriber immediately. Upon
the original sale of Units, the Participants will be admitted as
Partners not later than fifteen days after the release from escrow of
Participants' funds to the Partnership, and thereafter Participants will
be admitted into the Partnership not later than the last day of the
calendar month in which their Agreed Subscriptions were accepted by the
Partnership.
The execution of the Subscription Agreement and its acceptance by the
Managing General Partner also constitutes the execution of the
Partnership Agreement and an agreement to be bound by the terms thereof
as a Participant, including the granting of a special power of attorney
to the Managing General Partner appointing it as the Participant's
lawful representative and attorney in-fact to make, execute, sign, swear
to and file an Amended Certificate of Limited Partnership from time to
time, governmental reports and certifications, and other matters. (See
the Partnership Agreement, Exhibit (A) to this Prospectus.)
DRILLING PERIOD
Although it is anticipated that the Partnership will spend the entire
Partnership Subscription soon after the Offering Termination Date, the
Partnership will have a period of one year from the termination of the
offering period to use or commit funds to drilling activities. If,
within such one year period, the Partnership has not used, or committed
for use, as evidenced by a written agreement, the net subscription
proceeds, then the Managing General Partner will cause the remainder of
such net subscription proceeds, except for necessary operating capital
and amounts reserved for identified activities, to be distributed pro
rata to the Participants in the ratio of their Agreed Subscriptions as a
return of capital, together with interest earned thereon after the
Offering Termination Date, and the Managing General Partner will
reimburse the Participants for selling or other offering expenses
allocable to the return of capital.
INTEREST OF PARTICIPANTS IN THE PARTNERSHIP
See "Participation in Costs and Revenues - Allocation and Adjustment
Among Participants" regarding the Participants' share of revenues,
gains, costs, credits, expenses, losses and other charges and
liabilities.
QUALIFICATION OF THE PARTNERSHIP
The Managing General Partner has elected for the Partnership to be
governed by the partnership laws of Pennsylvania and has filed the
Certificate of Limited Partnership. The Managing General Partner will
take all other actions necessary to qualify the Partnership to do
business as a limited partnership or cause the limited partnership
status of the Partnership to be recognized in other jurisdictions.
SUITABILITY STANDARDS
IN GENERAL. It is the obligation of persons selling Units to make every
reasonable effort to assure that the Units are suitable for investors,
based on the investor's investment objectives and financial situation,
regardless of the investor's income or net worth. This is not an
appropriate investment for IRAs, Keogh plans and qualified retirement
plans. The Managing General Partner shall maintain for a period of at
least six years a record of each investor's suitability.
Units will be sold only to an investor who has a minimum net worth of
$225,000 or a minimum net worth of $60,000 and had during the last tax
year or estimates that he will have during the current tax year "taxable
income" as defined in Section 63 of the Code of at least
$60,000 without regard to an investment in Units. Net worth will be
determined exclusive of home, home furnishings and automobiles.
Additional suitability requirements are applicable to residents of
certain states. (See "- Purchasers of Limited Partner Units" and "
Purchasers of Investor General Partner Units", below.)
Also, the transferability of Participants' interest is limited, both by
express provision of the Partnership Agreement and the provisions of
state and federal securities laws. (See "Risk Factors - Special Risks
of the Partnership - Illiquid Investment and Restrictions on
Transferability of Participants' Interests.") For example, California
residents generally may not transfer Units without the consent of the
California Commissioner of Corporations, and the Commissioner of
Securities of Missouri classifies the Units as being ineligible for any
transactional exemption under the Missouri Uniform Securities Act
(Section 409.402(b), RSMo. 1969). Therefore, unless the Units are again
registered, the offer for sale or resale of Units by a Participant in
the State of Missouri may be subject to the sanctions of the act.
Other state securities law limitations on the transferability of
Participants' interests will be applicable in other states.
PURCHASERS OF LIMITED PARTNER UNITS. A resident of California must (i)
have a net worth of not less than $250,000 (exclusive of home,
furnishings, and automobiles) and expect to have gross income in the
current tax year of $65,000 or more, or (ii) have a net worth of not
less than $500,000 (exclusive of home, furnishings, and automobiles), or
(iii) have a net worth of not less than $1,000,000, or (iv) expect to
have gross income in the current tax year of not less than $200,000.
A Michigan or North Carolina resident must have either: (i) a net worth
of not less than $225,000 (exclusive of home, furnishings, and
automobiles), or (ii) a net worth of not less than $60,000 (exclusive of
home, furnishings, and automobiles) and estimated current tax year
taxable income as defined in Section 63 of the Internal Revenue Code of
1986 of $60,000 or more without regard to an investment in the
Partnership. In addition, a resident of Michigan or Ohio shall not make
an investment in the Partnership in excess of 10% of his net worth
(exclusive of home, furnishings and automobiles).
PURCHASERS OF INVESTOR GENERAL PARTNER UNITS. A resident of Alabama,
Maine, Massachusetts, Minnesota, Mississippi, North Carolina,
Pennsylvania, Tennessee or Texas must represent that he (i) has an
individual or joint net worth with his or her spouse of $225,000 or
more, without regard to the investment in the Partnership (exclusive of
home, furnishings, and automobiles), and a combined gross income of
$100,000 or more for the current year and for the two previous years; or
(ii) has an individual or joint net worth with his or her spouse in
excess of $1,000,000, inclusive of home, home furnishings and
automobiles; or (iii) has an individual or joint net worth with his or
her spouse in excess of $500,000, exclusive of home, home furnishings,
and automobiles; or (iv) has a combined "gross income" as defined in
Code Section 61 in excess of $200,000 in the current year and the two
previous years.
A resident of Arizona, Indiana, Iowa, Kentucky, Michigan, Missouri, New
Mexico, Ohio, Oklahoma, South Dakota, Vermont or Washington must
represent that he (i) has an individual or joint net worth with his or
her spouse of $225,000 or more, without regard to the investment in the
Partnership (exclusive of home, furnishings, and automobiles), and a
combined "taxable income" of $60,000 or more for the previous year and
expects to have a combined "taxable income" of $60,000 or more for the
current year and for the succeeding year; or (ii) has an individual or
joint net worth with his or her spouse in excess of $1,000,000,
inclusive of home, home furnishings and automobiles; or (iii) has an
individual or joint net worth with his or her spouse in excess of
$500,000, exclusive of home, home furnishings, and automobiles; or (iv)
has a combined "gross income" as defined in Code Section 61 in excess of
$200,000 in the current year and the two previous years. In addition, a
resident of Michigan or Ohio shall not make an investment in the
Partnership in excess of 10% of his net worth (exclusive of home,
furnishings and automobiles).
A resident of New Hampshire must represent that he is an "accredited
investor" as that term is defined in Regulation D promulgated by the
Securities and Exchange Commission, which includes, but is not limited
to, (i) a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000; and (ii) a natural person who had an individual income in
excess of $200,000 in each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income level in
the current year. A resident of California must represent that he (i)
has a net worth of not less than $250,000 (exclusive of home,
furnishings, and automobiles) and expects to have gross income in the
current tax year of $120,000 or more, or (ii) has a net worth of not
less than $500,000 (exclusive of home, furnishings, and automobiles), or
(iii) has a net worth of not less than $1,000,000 or (iv) expects to
have gross income in the current tax year of not less than $200,000.
MISCELLANEOUS. In the case of sales to fiduciary accounts, all of the
suitability standards set forth above and for the appropriate state
shall be met by the beneficiary, the fiduciary account, or by the donor
or grantor who directly or indirectly supplies the funds to purchase the
Partnership interests if the donor or grantor is the fiduciary.
Investors are required to execute their own Subscription Agreements. The
Managing General Partner will not accept any Subscription Agreement that
has been executed by someone other than the investor, unless such person
has been given the legal power of attorney to sign on the investor's
behalf and the investor meets all of the conditions herein.
The Managing General Partner may not complete a sale of Units to an
investor until at least five business days after the date the investor
receives a final prospectus. In addition, the Managing General Partner
will send each investor a confirmation of purchase.
Transferees of Units seeking to become substituted Partners must meet
the requirements imposed by the Partnership Agreement. (See
"Transferability of Units".)
SUBSCRIPTION BY MANAGING GENERAL PARTNER
Atlas will serve as Managing General Partner of the Partnership and is
required to make certain contributions to the Partnership. The Managing
General Partner and its officers and directors and Affiliates may also
subscribe for Units in the Partnership on the same basis as Limited
Partners or Investor General Partners, except that they are not required
to pay the Dealer-Manager fee, Sales Commissions and due diligence
reimbursements. Also, the Managing General Partner and its Affiliates
may buy up to 10% of the Units, which will not be applied towards the
minimum Partnership Subscription required for the Partnership to begin
operations. Subject to the foregoing, any subscription by the Managing
General Partner or its officers, directors or Affiliates will dilute the
voting rights of the Participants; however, they are prohibited from
voting with respect to certain matters. (See "Summary of Partnership
Agreement - Voting Rights.")
CONFLICTS OF INTEREST
IN GENERAL
Conflicts of interest are inherent in oil and gas drilling programs
involving non-industry participants because transactions are entered
into without arms' length negotiation. The interests of the Participants
and those of Atlas and its Affiliates may be inconsistent
in some respects or in certain instances. The following discussion
describes certain possible conflicts of interest that may arise for
Atlas and its Affiliates in the course of the Partnership and certain
limitations which are designed to reduce, but which will not eliminate,
the conflicts. It should be noted, however, that the following
discussion is not intended to be all inclusive and that other
transactions or dealings may arise in the future that could result in
conflicts of interest for Atlas and its Affiliates. (See "Fiduciary
Responsibility of the Managing General Partner".)
FIDUCIARY RESPONSIBILITY OF THE MANAGING GENERAL PARTNER
The Managing General Partner is accountable to the Partnership as a
fiduciary and consequently has a duty to exercise good faith and to deal
fairly with the Participants in handling the affairs of the Partnership.
While the Managing General Partner will endeavor to avoid conflicts of
interest to the extent possible, such conflicts nevertheless may occur
and, in such event, the actions of the Managing General Partner may not
be most advantageous to the Partnership. Because Atlas makes a
significant Capital Contribution to the Partnership, this conflict of
interest will be reduced. Nevertheless, in the event the Managing
General Partner should breach its fiduciary responsibilities, a
Participant would be entitled to an accounting and to recover any
economic losses caused by such breach. (See "Fiduciary Responsibility of
the Managing General Partner".)
TRANSACTIONS WITH ATLAS AND ITS AFFILIATES
Although Atlas and its Affiliates believe that the items of compensation
and reimbursement that it and its Affiliates will receive in connection
with the Partnership are reasonable, the items of compensation have been
determined solely by Atlas and are not the result of any negotiation or
agreement between Atlas and any person dealing at arms' length and
having no affiliation between them. Atlas will be entitled to receive
items of compensation and reimbursement in connection with the
Partnership even though it is possible that the Partnership's activities
could result in little or no profit, or a loss to Participants. Although
such fees must be competitive with the prices of other unaffiliated
persons in the same geographic area engaged in similar businesses, the
entity or person providing the services or equipment can be expected to
profit from such transactions. It may be to the best interests of Atlas
to first enter into contracts with itself and its Affiliates and second
with nonaffiliated parties even though the contract terms, or skill and
experience, offered by the nonaffiliated parties to the Partnership may
be comparable to that available from Atlas and its Affiliates.
The Managing General Partner and any Affiliate will not render to the
Partnership any oil field, equipage or other services nor sell or lease
to the Partnership any equipment or related supplies unless such person
is engaged, independently of the Partnership and as an ordinary and
ongoing business, in the business of rendering such services or selling
or leasing such equipment and supplies to a substantial extent to other
persons in the oil and gas industry in addition to the partnerships in
which the Managing General Partner or an Affiliate has an interest; and
the compensation, price or rental therefor will be competitive with the
compensation, price or rental of other persons in the area engaged in
the business of rendering comparable services or selling or leasing
comparable equipment and supplies which could reasonably be made
available to the Partnership. If such person is not engaged in such a
business then such compensation, price or rental will be the Cost of
such services, equipment or supplies to such person or the competitive
rate which could be obtained in the area, whichever is less.
Any services not otherwise described in this Prospectus for which the
Managing General Partner or any of its Affiliates are to be compensated
will be embodied in a written contract which precisely describes the
services to be rendered and the compensation to be paid. Such
compensation, if any, will be reported to Participants in the
Partnership's annual and semiannual reports pursuant to 4.03(b)(1)(b) of
the Partnership Agreement and a copy of any such contract will be
provided to a Participant upon request pursuant to 4.03(b)(5) of the
Partnership Agreement. Such contracts are cancelable without penalty
upon sixty days written notice by Participants whose Agreed
Subscriptions equal a majority of the Partnership Subscription. With
respect to Units owned by the Managing General Partner or its
Affiliates, the Managing General Partner and its Affiliates may not vote
or consent regarding any transactions between the Partnership and the
Managing General Partner or its Affiliates, and their Units will not be
included for purposes of determining a majority of the Partnership
Subscription with respect to such contracts.
CONFLICT REGARDING THE DRILLING AND OPERATING AGREEMENT
It is anticipated that all of the wells developed by the Partnership
will be drilled and operated pursuant to the Drilling and Operating
Agreement. As the Managing General Partner of the Partnership, Atlas
will be required to monitor and enforce, on behalf of the Partnership,
its own compliance with the provisions of the Drilling and Operating
Agreement, which creates a continuing conflict of interest. (See
"Proposed Activities".)
CONFLICTS REGARDING SHARING OF COSTS AND REVENUES
The share of revenues that Atlas will receive pursuant to the
Partnership Agreement will be "Carried" in that Atlas will contribute
total Capital Contributions to the Partnership in an amount less than
the Partnership's revenues which it will receive. This may create a
conflict of interest between the Managing General Partner and the
Participants regarding the determination of which Leases will be
acquired by the Partnership and the profit potential associated with the
Leases.
In addition, the allocation of all of the Intangible Drilling Costs to
the Participants and 14% of the Tangible Costs to Atlas of the wells
developed by the Partnership involves conflicts of interest between the
Participants and Atlas where completion of a marginally productive well
might prove beneficial to the Participants but not to Atlas. At the
time a completion decision is made the Participants will have already
paid the majority of their costs so they will want to complete the well
if there is any opportunity to recoup any of their costs. Conversely,
the Managing General Partner will not have paid any money prior to this
time and it will only want to pay such costs if it is assured of
recouping its money and making a profit. Based upon its past
experience, however, Atlas anticipates that all Partnership Wells in the
Clinton/Medina geological formation will be required to be completed
before a determination can be made as to the well's productivity. In
any event, Atlas will not cause any well to be plugged and abandoned by
the Partnership without a completion attempt having been made unless
Atlas determines that such well should be plugged and abandoned in
accordance with the generally accepted and customary oil and gas field
practices and techniques then prevailing in the geographic area of the
well location.
TAX MATTERS PARTNER
Atlas will be the Partnership's "Tax Matters Partner" and, as such, will
have broad authority to act on behalf of the Partnership and the
Participants in any administrative or judicial proceeding involving the
IRS. The possession of such authority by the Tax Matters Partner may
involve conflicts of interest such as whether or not to expend
Partnership funds to contest a proposed adjustment by the IRS, if any,
to the amount of the Partnership's deduction for Intangible Drilling
Costs which is allocated 100% to the Participants, or to contest a
proposed decrease by the IRS, if any, in the amount of the Managing
General Partner's credit to its Capital Account for contributing the
Leases to the Partnership which would decrease the Managing General
Partner's Distribution Interest in the Partnership. There also may be
conflicts of interest with respect to the Partnership's reimbursement of
expenses incurred by the Managing General Partner in its role as the
Partnership's Tax Matters Partner. (See "Tax Aspects".)
OTHER ACTIVITIES OF THE MANAGING GENERAL PARTNER, THE OPERATOR AND THEIR
AFFILIATES
Atlas will be required to devote to the Partnership such time and
attention as Atlas considers to be necessary or appropriate for the
proper supervision and management of the operations and activities of
the Partnership. Atlas has sponsored and continues to manage other
Programs (see "Prior Activities"), and Atlas expects to organize and
manage additional Programs, which may be concurrent. In addition, Atlas
and its Affiliates will be free to engage in other oil and gas related
business activities, either for their own account or on behalf of other
Programs, partnerships, joint ventures, corporations or other entities
in which they have an interest. They may, therefore, be expected to have
conflicts of interest in allocating management time, services and other
functions among the Partnership and such other oil and gas Programs,
partnerships and ventures.
Subject to its fiduciary duties, Atlas will not be restricted in any
manner from participating in other businesses or activities, despite the
fact that such other businesses or activities may be competitive with
the operations and activities of the Partnership and may operate in the
same areas as the Partnership. Notwithstanding, the Managing General
Partner and its Affiliates may pursue business opportunities that are
consistent with the Partnership's investment objectives for their own
account only after they have determined that such opportunity either
cannot be pursued by the Partnership because of insufficient funds or
because it is not appropriate for the Partnership under the existing
circumstances.
CONFLICTS INVOLVING THE ACQUISITION OF LEASES
Atlas will select, in its sole discretion, the Prospects to be developed
by the Partnership. Conflicts of interest may arise concerning which
Prospects Atlas will assign to the Partnership and which Atlas will
assign to other drilling Programs to be organized by Atlas or where
Atlas serves as driller/operator. It may prove to Atlas' or its
Affiliates' advantage to have the Partnership bear the costs and risks
of drilling a particular Prospect rather than another Program. These
potential conflicts of interest will be increased to some extent by the
fact that Atlas expects to be organizing and allocating Prospects to
more than one drilling Program at a time including a yearend Program in
which Affiliates of the Managing General Partner invest. There can be no
assurance that the activities of the Partnership and those of other
drilling Programs to be organized by Atlas will not conflict.
To reduce this conflict of interest the Managing General Partner
generally takes a similar interest in other Programs where it serves as
Managing General Partner and/or driller/operator.
In Pennsylvania and Ohio the assignments of the Leases will be limited
to a depth of from the surface through the Clinton/Medina geological
feature to the top of the Queenston formation, and Atlas will retain the
drilling rights below the Clinton/Medina geological formation. Although
the retention of the deep drilling rights may create a conflict of
interest between the Partnership and Atlas, Atlas believes that the
Partnership's drilling to the Clinton/Medina geological formation will
not provide any geologic information that would prove up or assist in
evaluating drilling to formations deeper than the Clinton/Medina
geological formation. Further, the amount of the credit Atlas receives
for the Partnership Leases does not include any value allocable to the
deep drilling rights retained by Atlas.
No procedures, other than the guidelines set forth below, have been
established by the Managing General Partner to handle or to resolve any
of the conflicts which may arise in this or another context; however,
the Managing General Partner owes a fiduciary duty to the Participants
in the operation and management of the Partnership and is restricted
from engaging in certain transactions with Affiliates and others under
the terms of the Partnership Agreement. The Managing General Partner,
its Affiliates and the Partnership will abide by the guidelines set
forth below.
(1) FAIR AND REASONABLE. Neither the Managing General Partner nor
any Affiliate will sell, transfer, or convey any property to or purchase
any property from the Partnership, directly or indirectly, except
pursuant to transactions that are fair and reasonable, nor take any
action with respect to the assets or property of the Partnership which
does not primarily benefit the Partnership.
(2) TRANSFERS AT COST. The Leases acquired from the Managing General
Partner or its Affiliates must be contributed to the Partnership at the
Cost of such Lease, unless the Managing General Partner shall have cause
to believe that Cost is materially more than the fair market value of
such property, in which case the credit for such contribution will be
made for a price not in excess of its fair market value. A determination
of fair market value must be supported by an appraisal from an
Independent Expert. Such opinion and any associated supporting
information must be maintained in the Partnership's records for at least
six years.
(3) LIMITATIONS ON ACTIVITIES OF THE MANAGING GENERAL PARTNER AND
ITS AFFILIATES ON LEASES ACQUIRED BY THE PARTNERSHIP. During a period of
five years from the Offering Termination Date of the Partnership, if the
Managing General Partner or any of its Affiliates, excluding another
Program in which the interest of the Managing General Partner or its
Affiliates is substantially similar to or less than their interest in
the Partnership, proposes to acquire an interest from an unaffiliated
person, in a Prospect in which the Partnership possesses an interest or
in a Prospect in which the Partnership's interest has been terminated
without compensation within one year preceding such proposed
acquisition, the following conditions shall apply
(a) if the Managing General Partner or the Affiliate, excluding
another Program in which the interest of the Managing General Partner or
its Affiliates is substantially similar to or less than their interest
in the Partnership, does not currently own property in the Prospect
separately from the Partnership, then neither the Managing General
Partner nor the Affiliate shall be permitted to purchase an interest in
the Prospect; and
(b) if the Managing General Partner or the Affiliate, excluding
another Program in which the interest of the Managing General Partner or
its Affiliates is substantially similar to or less than their interest
in the Partnership, currently own a proportionate interest in the
Prospect separately from the Partnership, then the interest to be
acquired shall be divided between the Partnership and the Managing
General Partner or the Affiliate in the same proportion as is the other
property in the Prospect; provided, however, if cash or financing is not
available to the Partnership to enable it to consummate a purchase of
the additional interest to which it is entitled, then neither the
Managing General Partner nor the Affiliate shall be permitted to
purchase any additional interest in the Prospect.
(4) TRANSFER OF LESS THAN THE MANAGING GENERAL PARTNER'S AND ITS
AFFILIATE'S ENTIRE INTEREST. A sale, transfer or a conveyance to the
Partnership of less than all of the ownership of the Managing General
Partner or an Affiliate, excluding another Program in which the
interest of the Managing General Partner or its Affiliates is
substantially similar to or less than their interest in the Partnership,
in any Prospect will not be made unless the interest retained by the
Managing General Partner or the Affiliate is a proportionate Working
Interest, the respective obligations of the Managing General Partner or
its Affiliates and the Partnership are substantially the same after the
sale of the interest by the Managing General Partner or its Affiliates,
and the Managing General Partner's interest in revenues does not exceed
the amount proportionate to its retained Working Interest. Neither the
Managing General Partner nor any Affiliate will retain any Overriding
Royalty Interests or other burdens on an interest sold by it to the
Partnership. With respect to its retained interest the Managing General
Partner will not Farmout a Lease for the primary purpose of avoiding
payment of its costs relating to drilling the Lease. This paragraph does
not prevent the Managing General Partner or its Affiliates from
subsequently dealing with their retained interest as they may choose
with unaffiliated parties or Affiliated partnerships.
(5) EQUAL PROPORTIONATE INTEREST. When the Managing General Partner
or an Affiliate, excluding another Program in which the interest of the
Managing General Partner or its Affiliates is substantially similar to
or less than their interest in the Partnership, sells, transfers or
conveys any oil, gas or other mineral interests or property to the
Partnership, it must, at the same time, sell to the Partnership an equal
proportionate interest in all its other property in the same Prospect.
Notwithstanding, a Prospect shall be deemed to consist of the drilling
or spacing unit on which such well will be drilled by the Partnership if
the geological feature to which such well will be drilled contains
Proved Reserves and the drilling or spacing unit protects against
drainage. With respect to an oil and gas Prospect located in Ohio and
Pennsylvania on which a well will be drilled by the Partnership to test
the Clinton/Medina geologic formation a Prospect shall be deemed to
consist of the drilling and spacing unit if it meets the test in the
preceding sentence.
It is anticipated that most of the Prospects which will be
developed by the Partnership will develop the Clinton/Medina geologic
formation. The development of wells on such acreage may provide the
Managing General Partner with offset sites by allowing it to ascertain
at the Partnership's expense the value of adjacent acreage in which the
Partnership would not have any right to participate in developing. See
the Production Map in "Proposed Activities - Information Regarding
Currently Proposed Prospects" for the acreage owned by the Managing
General Partner in the area surrounding the currently proposed
Prospects. To reduce this conflict of interest neither the Managing
General Partner nor its Affiliates may drill any well within 1,650 feet
of an existing Partnership Well in the Clinton/Medina formation in
Pennsylvania, or within 1,100 feet of an existing Partnership Well in
Ohio, within five years of the drilling of the Partnership Well. In the
event the Partnership abandons its interest in a well, this restriction
will continue for one year following the abandonment.
(6) SUBSEQUENTLY ENLARGING PROSPECT. If the area constituting the
Partnership's Prospect is subsequently enlarged to encompass any area
wherein the Managing General Partner or an Affiliate, excluding another
Program in which the interest of the Managing General Partner or its
Affiliates is substantially similar to or less than their interest in
the Partnership, owns a separate property interest, such separate
property interest or a portion thereof shall be sold, transferred or
conveyed to the Partnership in accordance with Sections 2, 4 and 5,
above, if the activities of the Partnership were material in
establishing the existence of Proved Undeveloped Reserves which are
attributable to such separate property interest. Notwithstanding,
Prospects in the Clinton/Medina geological formation will not be
enlarged or contracted if the Prospect was limited to the drilling or
spacing unit because the well was being drilled to Proved Reserves in
the Clinton/Medina geological formation and the drilling or spacing unit
protected against drainage.
(7) TRANSFER OF LEASES TO THE MANAGING GENERAL PARTNER. The Managing
General Partner and its Affiliates will not purchase any producing or
non-producing oil and gas properties from the Partnership.
(8) TRANSFER OF LEASES BETWEEN AFFILIATED LIMITED PARTNERSHIPS. The
Partnership shall not purchase properties from or sell properties to any
other Affiliated partnership. This prohibition, however, shall not apply
to joint ventures among such Affiliated partnerships, provided that the
respective obligations and revenue sharing of all parties to the
transaction are substantially the same and the compensation arrangement
or any other interest or right of either the Managing General Partner or
its Affiliates is the same in each Affiliated partnership, or, if
different, the aggregate compensation of the Managing General Partner or
the Affiliate is reduced to reflect the lower compensation arrangement.
(9) NO FARMOUTS. The Partnership shall not farmout its Leases.
(10) LEASES ONLY FOR STATED PURPOSE OF THE PARTNERSHIP. The
Partnership shall acquire only Leases reasonably expected to meet the
stated purposes of the Partnership. No Leases shall be acquired for the
purpose of a subsequent sale unless the acquisition is made after a well
has been drilled to a depth sufficient to indicate that such an
acquisition would be in the Partnership's best interest.
CONFLICTS BETWEEN PARTICIPANTS
The Managing General Partner and its officers and directors and
Affiliates may also subscribe for Units in the Partnership on the same
basis as Limited Partners or Investor General Partners, except that they
are not required to pay Dealer-Manager fees, Sales Commissions or due
diligence reimbursements. Also, the Managing General Partner and its
Affiliates may buy up to 10% of the Units, which will not be applied
towards the minimum Partnership Subscription required for the
Partnership to begin operations. Subject to the foregoing, any
subscription by the Managing General Partner or its officers, directors
or Affiliates will dilute the voting rights of the Participants and
there may be a conflict with respect to certain matters. However, the
Managing General Partner and its officers, directors and Affiliates also
are prohibited from voting with respect to certain matters. (See
"Summary of Partnership Agreement - Voting Rights.")
LACK OF INDEPENDENT UNDERWRITER AND DUE DILIGENCE INVESTIGATION
The terms of this offering, the Partnership Agreement and the Drilling
and Operating Agreement were determined by the Managing General Partner
without arms' length negotiations. Prospective Participants have not
been separately represented by legal counsel, which might include the
negotiation of certain more favorable terms in the Partnership Agreement
and the Drilling and Operating Agreement on behalf of prospective
Participants. Although Anthem Securities, Inc., which is affiliated
with the Managing General Partner, as Dealer-Manager will receive
reimbursement of accountable due diligence expenses for certain due
diligence investigations conducted by the Selling Agents which will be
reallowed to the Selling Agents, the Dealer-Manager's due diligence
examination concerning this offering cannot be considered to be
independent. There was not an extensive in-depth "due diligence"
investigation of the existing and proposed business activities of the
Partnership and the Managing General Partner which would be provided by
independent underwriters. However, Anthem Securities, Inc. in
conjunction with Atlas Group has contracted with Nationwide Financial
Network, a due diligence entity, to prepare and maintain an independent
due diligence report for their network of independent broker-dealers and
others which may request it. (See "Plan of Distribution".)
CONFLICTS CONCERNING LEGAL COUNSEL
It is anticipated that legal counsel to Atlas will also serve as legal
counsel to the Partnership and that such dual representation will
continue in the future. However, should a future dispute arise between
the Participants and Atlas, or should counsel advise Atlas that counsel
reasonably believes its representation of the Partnership will be
adversely affected by counsel's responsibilities to Atlas, Atlas will
cause the Participants to retain separate counsel for such matters.
CONFLICTS REGARDING REPURCHASE OBLIGATION
The Participants' right to present their Units to Atlas for repurchase
creates a conflict of interest between the Participants and the Managing
General Partner in the suspension of the repurchase obligation and in
arriving at the amount which will be paid by the Managing General
Partner for the Participants' interests. The Managing General Partner
may suspend its repurchase obligation if it does not have the necessary
cash flow or it cannot borrow the funds on terms which the Managing
General Partner deems reasonable, which is a subjective determination.
The Managing General Partner will also determine the repurchase price
based upon a reserve report prepared by the Managing General Partner and
reviewed by an Independent Expert chosen by the Managing General
Partner. Furthermore, the formula for arriving at the repurchase price
has some subjective determinations within the control of the Managing
General Partner. (See "Repurchase Obligation".)
OTHER CONFLICTS
A conflict of interest is created with the Participants by the Managing
General Partner's right to hypothecate its interest or withdraw an
interest in the Partnership Wells with respect to the Managing General
Partner's subordination obligation. A further conflict of interest is
created by the Managing General Partner's right to determine the order
of priority and the construction of pipelines which may be required in
order to connect certain Prospects into the Atlas transmission network.
(See "Risk Factors - Special Risks of the Partnership - Borrowings by
the Managing General Partner Could Reduce Funds Available for Its
Subordination Obligation" and "Summary of Partnership Agreement
Withdrawal of Managing General Partner".)
PROCEDURES TO REDUCE CONFLICTS OF INTEREST
The Managing General Partner and its Affiliates have adopted the
following procedures and conditions to reduce some of the conflicts of
interest inherent in oil and gas drilling programs and to assure that
transactions between the Managing General Partner or its Affiliates, on
the one hand, and the Partnership, on the other hand, are fair and
reasonable. The Managing General Partner has no other conflict of
interest resolution procedures. Consequently, conflicts of interest
between the Managing General Partner and the Participants may not
necessarily be resolved in the best interests of the Participants.
(1) NO COMMINGLING. The funds of the Partnership will be kept in
separate accounts and will not be commingled with the funds of the
Managing General Partner, any Affiliate or any other entity.
(2) NO COMPENSATING BALANCES. Neither the Managing General Partner
nor any Affiliate will use the Partnership's funds as compensating
balances for its own benefit.
(3) FUTURE PRODUCTION. Neither the Managing General Partner nor any
Affiliate will commit the future production of a well developed by the
Partnership exclusively for its own benefit.
(4) MARKETING ARRANGEMENTS. All benefits from marketing arrangements
or other relationships affecting property of the Managing General
Partner or its Affiliates and the Partnership will be fairly and
equitably apportioned according to the respective interests of each
in such property. The Managing General Partner shall treat all wells in
a geographic area equally concerning to whom and at what price the
Partnership's gas will be sold and to whom and at what price the gas of
other oil and gas Programs which the Managing General Partner has
sponsored or will sponsor will be sold. The Managing General Partner
calculates a weighted average selling price for all of the gas sold in a
geographic area by taking all money received from the sale of all of the
gas sold to its customers in a geographic area and dividing by the
volume of all gas sold from the wells in that geographic area.
Notwithstanding, the Managing General Partner and its Affiliates
are parties to, and contract for, the sale of natural gas with
industrial end-users and will continue to enter into such contracts on
their own behalf, and the Partnership will not be a party to such
contracts. The Managing General Partner and its Affiliates also have a
substantial interest in certain pipeline facilities and compression
facilities which access interstate pipeline systems, which it is
anticipated will be used to transport the Partnership's gas production
as well as Affiliated partnership and third-party gas production, and
the Partnership will not receive any interest in the Managing General
Partner's and its Affiliates' pipeline or gathering system or
compression facilities. (See "Proposed Activities - Sale of Oil and Gas
Production - In General".)
(5) ADVANCE PAYMENTS. Advance payments by the Partnership to the
Managing General Partner and its Affiliates are prohibited, except where
advance payments are required to secure tax benefits of prepaid drilling
costs and for a business purpose. These payments, if any, will not
include nonrefundable payments for completion costs prior to the time
that a decision is made that the well or wells warrant a completion
attempt.
(6) NO PROFIT IN CONTRAVENTION OF FIDUCIARY DUTY. The Managing
General Partner will not profit by drilling in contravention of its
fiduciary obligation to the Participants.
(7) DISCLOSURE. Any agreement or arrangement which binds the
Partnership must be fully disclosed in the Prospectus.
(8) LOANS FROM THE PARTNERSHIP. The Partnership will not loan money
to the Managing General Partner or any Affiliate.
(9) LOANS TO THE PARTNERSHIP. Neither the Managing General Partner
nor any Affiliate will loan money to the Partnership where the interest
to be charged exceeds the Managing General Partner's or the Affiliate's
interest cost or where the interest to be charged exceeds that which
would be charged to the Partnership (without reference to the Managing
General Partner's or the Affiliate's financial abilities or guarantees)
by unrelated lenders, on comparable loans for the same purpose, and
neither the Managing General Partner nor any Affiliate will receive
points or other financing charges or fees, regardless of the amount,
although the actual amount of such charges incurred from third-party
lenders may be reimbursed to the Managing General Partner or the
Affiliate.
(10) NO REBATES. No rebates or give-ups may be received by the
Managing General Partner or any Affiliate nor may the Managing General
Partner or any Affiliate participate in any reciprocal business
arrangements which would circumvent these guidelines.
(11) SALE OF ASSETS. The sale of all or substantially all of the
assets of the Partnership (including without limitation, Leases, wells,
equipment and production) can only be made with the consent of
Participants (including Atlas and its Affiliates with respect to any
Units purchased by them) whose Agreed Subscriptions equal a majority of
the Partnership Subscription (including Units purchased by Atlas and
its Affiliates).
(12) PARTICIPATION IN OTHER PARTNERSHIPS. If the Partnership
participates in other partnerships or joint ventures (multi-tier
arrangements), the terms of any such arrangements shall not result in
the circumvention of any of the requirements or prohibitions contained
in the Partnership Agreement, including the following: (i) there will
be no duplication or increase in organization and offering expenses, the
Managing General Partner's compensation, Partnership expenses or other
fees and costs; (ii) there will be no substantive alteration in the
fiduciary and contractual relationship between the Managing General
Partner and the Participants; and (iii) there will be no diminishment in
the voting rights of the Participants.
(13) INVESTMENTS. Partnership funds may not be invested in the
securities of another person except in the following instances: (i)
investments in Working Interests or undivided Lease interests made in
the ordinary course of the Partnership's business; (ii) temporary
investments in income producing short-term highly liquid investments,
where there is appropriate safety of principal, such as U.S. Treasury
Bills; (iii) multi-tier arrangements meeting the requirements of (12)
above; investments involving less than 5% of the Partnership
Subscription which are a necessary and incidental part of a property
acquisition transaction; and (iv) investments in entities established
solely to limit the Partnership's liabilities associated with the
ownership or operation of property or equipment, provided, in such
instances duplicative fees and expenses shall be prohibited.
POLICY REGARDING ROLL-UPS
It is possible at some indeterminate time in the future that the
Partnership will become involved in a "Roll-Up". The complete definition
of "Roll-Up" is set forth in "Definitions." In general, a Roll-Up means
a transaction involving the acquisition, merger, conversion, or
consolidation of the Partnership with or into another partnership,
corporation or other entity (the "Roll-Up Entity") and the issuance of
securities by the Roll-Up Entity to Participants. A Roll-Up will also
include any change in the rights, preferences, and privileges of the
Participants in the Partnership; such changes could include increasing
the compensation of the Managing General Partner, amending the voting
rights of the Participants, listing the Units on a national securities
exchange or on NASDAQ, changing the fundamental investment objectives of
the Partnership, or materially altering the duration of the Partnership.
The Partnership Agreement provides various policies in the event that a
Roll-Up should occur in the future. These policies include: (i) an
appraisal of all Partnership assets will be from a competent Independent
Expert, and a summary of the appraisal will be included in a report to
the Participants in connection with a proposed Roll-Up; (ii) any
Participant who votes "no" on the proposal will be offered a choice of
(a) accepting the securities of the Roll-Up Entity offered in the
proposed Roll-Up; (b) remaining a Participant in the Partnership and
preserving his interests in the Partnership on the same terms and
conditions as existed previously; or (c) receiving cash in an amount
equal to his pro-rata share of the appraised value of the Partnership's
net assets; and (iii) the Partnership will not participate in a proposed
Roll-Up (a) which would result in the diminishment of a Participant's
voting rights under the Roll-Up Entity's chartering agreement; (b) in
which the Participants' right of access to the records of the Roll-Up
Entity would be less than those provided by the Partnership Agreement;
or (c) in which any of the costs of the transaction would be borne by
the Partnership if the proposed Roll-Up is not approved by 75% in
interest of the Participants.
The Partnership Agreement further provides that the Partnership will not
participate in a Roll-Up transaction unless the Roll-Up transaction
is approved by Participants whose Agreed Subscriptions equal 75% of the
Partnership Subscription. (See 4.03(d)(16) of the Partnership
Agreement.) With respect to Units owned by the Managing General Partner
and its Affiliates, the Managing General Partner and its Affiliates will
not vote or consent with respect to a proposed Roll-Up, and in
determining the required percentage interest of Units necessary to
approve any proposed Roll-Up, any Units owned by the Managing General
Partner and its Affiliates will not be included.
CERTAIN TRANSACTIONS
As of July 15, 1997, previous limited partnerships sponsored by the
Managing General Partner and its Affiliates had made payments to the
Managing General Partner and its Affiliates as set forth below.
PROSPECTIVE INVESTORS SHOULD NOT ASSUME THAT THE PAST PERFORMANCE OF
PRIOR PROGRAMS IS INDICATIVE OF THE FUTURE RESULTS OF THE PARTNERSHIP.
<TABLE>
<CAPTION>
Leasehold Cumulative
Drilling Reimbursement
and Cumulative of General and
Investor Non-recurring Completion Operator's Administrative
PROGRAM subscriptions management fee costs (1)(2) charges overhead
<S> <C> <C> <C> <C> <C> <C> <C>
Atlas L.P. #1-1985 $ 600,000 0 $ 600,000 $151,205 $33,500
A.E. Partners 1986 631,250 0 631,250 113,309 45,508
A.E. Partners 1987 721,000 0 721,000 119,214 48,451
A.E. Partners 1988 617,050 0 617,050 94,885 43,598
A.E. Partners 1989 550,000 0 550,000 76,496 41,343
A.E. Partners 1990 887,500 0 887,500 121,710 43,378
A.E. Nineties-10 2,200,000 0 2,200,000 272,670 43,820
A.E. Nineties-11 750,000 0 761,802 102,809 64,865
A.E. Partners 1991 868,750 0 867,500 93,964 52,797
A.E. Nineties-12 2,212,500 0 2,272,017 289,882 63,112
A.E. Nineties-JV 92 4,004,813 0 4,157,700 418,444 89,124
A.E. Partners 1992 600,000 0 600,000 52,715 24,075
A.E. Nineties-P#1 2,988,960 0 3,026,348 189,777 48,499
A.E. Nineties-1993 3,753,937 0 3,480,656 302,543 57,046
A.E. Partners 1993 700,000 0 689,940 52,794 18,975
A.E. Nineties-P #2 3,323,920 0 3,324,668 196,130 36,658
A.E. Nineties-14 9,940,045 0 9,512,015 610,680 113,491
A.E. Partners 1994 892,500 0 892,500 30,977 15,638
A.E. Nineties-P#3 5,799,750 0 5,799,750 228,633 45,020
A.E. Nineties-15 10,954,715 0 9,859,244 358,132 66,851
A.E. Partners 1995 600,000 0 600,000 14,751 2,588
A.E. Nineties-P#4 6,991,350 0 6,991,350 191,459 31,415
A.E. Nineties-16 10,955,465 0 10,955,465 135,712 18,481
A.E. Partners 1996 800,000 0 800,000 1,737 488
A.E. Ninetiec #5 7,992,240 0 7,992,240 14,677 3,075
</TABLE>
(1) Excluding the Managing General Partner's Capital Contributions.
(2) Includes additional drilling costs paid with production
revenues.
(3) This program had its first closing on June 25, 1997.
FIDUCIARY RESPONSIBILITY OF THE MANAGING GENERAL PARTNER
GENERAL
The Managing General Partner is vested with the power and authority to
manage
the Partnership and its assets. Consequently, it is accountable
to the Participants as a fiduciary and must exercise good faith and act
with integrity in handling the affairs of the Partnership. The Managing
General Partner has a fiduciary responsibility for the safekeeping and
use of all funds and assets of the Partnership whether or not in the
Managing General Partner's possession or control, and the Managing
General Partner may not employ, or permit another to employ, such funds
or assets in any manner except for the exclusive benefit of the
Partnership. Neither the Partnership Agreement nor any other agreement
between the Managing General Partner and the Partnership may
contractually limit any fiduciary duty owed to the Participants by the
Managing General Partner under applicable law except as set forth in
4.01, 4.02, 4.04, 4.05 and 4.06 of the Partnership Agreement. This is
a rapidly expanding and changing area of the law and Participants who
have questions concerning the duties of the Managing General Partner
should consult their own counsel.
LIMITATIONS ON MANAGING GENERAL PARTNER LIABILITY AS FIDUCIARY
Under the terms of the Partnership Agreement, the Managing General
Partner,
the Operator and their Affiliates will not be liable to the Partnership
or the
Participants for any loss suffered by the Partnership or Participants
which
arises out of any action or inaction of the Managing General Partner,
the
Operator or their Affiliates if the Managing General Partner, the
Operator and
their Affiliates determined in good faith that such course of conduct
was in
the best interest of the Partnership; the Managing General Partner, the
Operator and their Affiliates were acting on behalf of, or performing
services
for, the Partnership; and such course of conduct did not constitute
negligence
or misconduct of the Managing General Partner, the Operator or their
Affiliates. Therefore, Participants may have a more limited right of
action
than they would have had absent these limitations in the Partnership
Agreement. These limitations, however, do not apply to Participants'
rights
under the federal securities laws, and Participants whose Agreed
Subscriptions
equal a majority of the Partnership Subscription may vote to remove the
Managing General Partner and/or the Operator. (See "Summary of
Partnership
Agreement Voting Rights" and "- Removal of Operator.")
In addition, the Partnership Agreement provides for indemnification of
the
Managing General Partner, the Operator and their Affiliates by the
Partnership
against any losses, judgements, liabilities, expenses and amounts paid
in
settlement of any claims sustained by them in connection with the
Partnership
provided that the Managing General Partner, the Operator and their
Affiliates
determined in good faith that the course of conduct which caused the
loss or
liability was in the best interest of the Partnership; the Managing
General
Partner, the Operator and their Affiliates were acting on behalf of, or
performing services for the Partnership; and such course of conduct was
not
the result of negligence or misconduct of the Managing General Partner,
the
Operator or their Affiliates.
Payments arising from such indemnification or agreement to hold harmless
are
recoverable only out of the tangible net assets of the Partnership
including
insurance proceeds.
Notwithstanding the above, the Managing General Partner, the Operator
and
their Affiliates and any person acting as a broker-dealer may not be
indemnified for any losses, liabilities, or expenses arising from or out
of an
alleged violation of federal or state securities laws unless (i) there
has
been a successful adjudication on the merits of each count involving
alleged
securities law violations as to a particular indemnity, (ii) such claims
have
been dismissed with prejudice on the merits by a court of competent
jurisdiction as to a particular indemnity, or (iii) a court of competent
jurisdiction approves a settlement of the claims as to a particular
indemnity
and finds that indemnification of the settlement and related costs
should be
made, and the court considering the request for indemnification has been
advised of the position of the Securities and Exchange Commission, the
Massachusetts Securities Division, the states which are specifically
set forth in the Partnership Agreement, and the position of any state
securities regulatory authority in which the plaintiff claims he was
offered
or sold Partnership Units, with respect to the issue of indemnification
for
violation of securities laws.
LIMITATIONS ON MANAGING GENERAL PARTNER INDEMNIFICATION
To the extent that any indemnification provision in the Partnership
Agreement
purports to include indemnification for liabilities arising under the
Securities Act of 1933, as amended, Participants should be aware that,
in the
opinion of the Securities and Exchange Commission, such indemnification
is
contrary to public policy and therefore unenforceable. In any event,
Participants and their advisers should review closely the provisions of
the
Partnership Agreement concerning exculpation and indemnification of the
Managing General Partner and consult their own attorneys if they have
any
questions.
The Partnership will not incur the cost of the portion of any insurance
which
insures any party against any liability as to which such party is
prohibited
from being indemnified.
The advancement of Partnership funds to the Managing General Partner or
its
Affiliates for legal expenses and other costs incurred as a result of
any
legal action for which indemnification is being sought is permissible
only if
the Partnership has adequate funds available and the following
conditions are
satisfied: (i) the legal action relates to acts or omissions with
respect to
the performance of duties or services on behalf of the Partnership; (ii)
the
legal action is initiated by a third party who is not a Participant, or
the
legal action is initiated by a Participant and a court of competent
jurisdiction specifically approves such advancement; and (iii) the
Managing
General Partner or its Affiliates undertake to repay the advanced funds
to the
Partnership, together with the applicable legal rate of interest
thereon, in
cases in which such party is found not to be entitled to
indemnification.
PRIOR ACTIVITIES
The following tables, other than Table 5, reflect certain historical
data with
respect to twenty-one private drilling programs in which Atlas served as
Managing General Partner, which raised a total of $49,068,405, and five
public
drilling programs in which Atlas served as Managing General Partner
which
raised a total of $27,096,220.
FOR SEVERAL REASONS, INCLUDING DIFFERENCES IN PROGRAM STRUCTURE,
PROPERTY
LOCATIONS, PROGRAM SIZE AND ECONOMIC CONSIDERATIONS, IT SHOULD NOT BE
ASSUMED
THAT PARTICIPANTS IN THE OFFERING COVERED BY THIS PROSPECTUS WILL
EXPERIENCE
RETURNS, IF ANY, COMPARABLE TO THOSE EXPERIENCED BY INVESTORS IN SUCH
PRIOR
DRILLING PROGRAMS. THE RESULTS OF SUCH PRIOR DRILLING PROGRAMS SHOULD BE
VIEWED ONLY AS A MEASURE OF THE LEVEL OF ACTIVITY AND EXPERIENCE OF
ATLAS WITH
RESPECT TO DRILLING PROGRAMS.
======================================================================
<TABLE>
<CAPTION>
Table 1 sets forth certain sales information of previous limited
partnerships
sponsored by the Managing
General Partner and its Affiliates. PROSPECTIVE INVESTORS SHOULD NOT
ASSUME
THAT THE PAST PERFORMANCE OF
PRIOR PROGRAMS IS INDICATIVE OF THE FUTURE RESULTS OF THE PARTNERSHIP.
TABLE 1
EXPERIENCE IN RAISING FUNDS
As of July 15, 1997
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Atlas L.P. #1-1985 19 $ 600,000 $ 114,800 $ 714,800 12/31/85 07/02/86
A.E. Partners 1986 24 631,250 120,400 751,650 12/31/86 04/02/87
A.E. Partners 1987 17 721,000 158,269 879,269 12/31/87 04/02/88
A.E. Partners 1988 21 617,050 135,450 752,500 12/31/88 04/02/89
A.E. Partners 1989 21 550,000 120,731 670,731 12/31/89 04/02/90
A.E. Partners 1990 27 887,500 244,622 1,132,122 12/31/90 04/02/91
A.E. Nineties-10 60 2,200,000 484,380 2,684,380 12/31/90 03/31/91
A.E. Nineties-11 25 750,000 268,003 1,018,003 09/30/91 01/31/92
A.E. Partners 1991 26 868,750 318,063 1,186,813 12/31/91 04/02/92
A.E. Nineties-12 87 2,212,500 791,833 3,004,333 12/31/91 04/30/92
A.E.Nineties-JV 92 155 4,004,813 1,414,917 5,419,730 10/28/92 04/05/93
A.E. Partners 1992 21 600,000 176,100 776,100 12/14/92 07/02/93
A.E. Nineties-P#1 221 2,988,960 528,934 3,517,894 12/31/92 07/15/93
A.E. 90s-1993 Ltd 125 3,753,937 1,264,183 5,018,120 10/08/93 02/10/94
A.E. Partners 1993 21 700,000 219,600 919,600 12/31/93 07/02/94
A.E. Nineties-P#2 269 3,323,920 587,340 3,911,260 12/31/93 06/15/94
A.E. Nineties-14 263 9,940,045 3,584,027 13,524,072 08/11/94 01/10/95
A.E. Partners 1994 23 892,500 231,500 1,124,000 12/31/94 07/02/95
A.E. Nineties-P#3 391 5,799,750 928,546 6,728,296 12/31/94 06/05/95
A.E. Nineties-15 244 10,954,715 3,435,936 14,390,651 06/15/95 02/07/96
A.E. Partners 1995 23 600,000 244,725 844,725 12/31/95 10/02/96
A.E. Nineties-P#4 324 6,991,350 1,287,782 8,279,132 12/31/95 07/08/96
A.E. Nineties-16 274 10,955,465 1,643,320 12,598,785 07/31/96 01/12/97
A.E. Partners 1996 21 800,000 349,992 1,149,992 12/31/96 07/02/97
A.E. Nineties-P#5 378 7,992,240 1,654,740 9,646,980 12/31/96 06/08/97
A.E. 90s-17 (1) 105 4,628,750 1,133,917 5,762,667 N/A 1997
</TABLE>
[FN]
(1) This program had its first closing on June 25, 1997.
Table 2 reflects the drilling activity of previous limited partnerships
sponsored by the Managing General
Partner and its Affiliates. All of the wells were Development Wells.
PROSPECTIVE INVESTORS SHOULD NOT
ASSUME THAT THE PAST PERFORMANCE OF PRIOR PROGRAMS IS
INDICATIVE OF THE FUTURE RESULTS OF THE PARTNERSHIP.
<TABLE>
<CAPTION>
TABLE 2
WELL STATISTICS - DEVELOPMENT WELLS
As of July 15, 1997
GROSS WELLS(L) NET WELLS(2)
PROGRAM OIL GAS DRY OIL GAS DRY
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Atlas L.P. #1-1985 0 7 1 0 3.15 0.25
A.E. Partners 1986 0 8 0 0 3.50 0.00
A.E. Partners 1987 0 9 0 0 4.10 0.00
A.E. Partners 1988 0 9 0 0 3.80 0.00
A.E. Partners 1989 0 10 0 0 3.30 0.00
A.E. Partners 1990 0 12 0 0 5.00 0.00
A.E. Nineties-10 0 12 0 0 11.50 0.00
A.E. Nineties-11 0 14 0 0 4.30 0.00
A.E. Partners 1991 0 12 0 0 4.95 0.00
A.E. Nineties-12 0 14 0 0 12.50 0.00
A.E. Nineties-JV 92 0 52 0 0 24.44 0.00
A.E. Partners 1992 0 7 0 0 3.50 0.00
A.E. Nineties-Public #1 0 14 0 0 14.00 0.00
A.E. Nineties-1993 Ltd. 0 20 2 0 19.40 2.00
A.E. Partners 1993 0 8 0 0 4.00 0.00
A.E. Nineties-Public #2 0 16 0 0 15.31 0.00
A.E. Nineties-14 0 55 1 0 55.00 1.00
A.E. Partners 1994 0 12 0 0 5.00 0.00
A.E. Nineties-Public #3 0 27 0 0 26.00 0.00
A.E. Nineties-15 0 61 0 0 55.50 0.00
A.E. Partners 1995 0 6 0 0 3.00 0.00
A.E. Nineties-Public #4 0 31 0 0 30.50 0.00
A.E. Nineties-16 0 57 0 0 47.50 0.00
A.E. Partners 1996 0 13 0 0 4.44 0.00
A.E. Nineties-Public #5 0 36 0 0 35.91 0.00
A.E. Nineties-17 0 0 0 0 0 0.00
================================================================
TOTALS 0 522 4 0 399.60 3.25
<FN>
(1) A "gross well" is one in which a leasehold interest is owned.
(2) A "net well" equals the actual leasehold interest owned in one gross well
divided by one hundred.
Example: a 50% leasehold interest in a well is one gross well, but a .50 net
(3) For purposes of this Table only, a "Dry Hole" means a well which is
plugged and abandoned without a
completion attempt because the Operator has determined that it will not be
commercial quantities.
(4) Atlas L.P. #1-1985 had 1 gross well (.25 net well) which was completed
but non-commercial; A.E.
Nineties-1993 Ltd. had 1 gross well (1 net well) which was completed but non-
commercial; A.E. Nineties-14
had 2 gross wells (2 net wells) which were completed but non-commercial;
A.E. Partners-1994 had 1 gross well
(.25 net well) which were completed but non-commercial; A.E. Nineties-15
had 1 gross well (1 net well) which
was completed but non-commercial and A.E. Nineties-16 had 5 gross wells
(4.5 net wells) which were
completed but non-commercial.
</FN>
(5) Table 3 provides information concerning the operating results of
previous limited partnerships
sponsored by the Managing General Partner and its Affiliates.
PROSPECTIVE INVESTORS SHOULD NOT ASSUME THAT
THE PAST PERFORMANCE OF PRIOR PROGRAMS IS INDICATIVE
OF THE FUTURE RESULTS OF THE PARTNERSHIP.
</TABLE>
TABLE 3
INVESTOR OPERATING RESULTS - INCLUDING EXPENSES
as of July 15, 1997
<TABLE>
<S> <C> <C> <C> <C> <C>
<C> <C> <C>
Atlas L.P. #1-1985 $ 600,000 $127,012 $28,140 $6,361 $1,228,961
205% 18% $10,040
A.E. Partners 1986 631,250 95,180 38,227 5,326 575,337
91% 9% 5,995
A.E. Partners 1987 721,000 92,534 37,608 5,469 483,516
67% 7% 3,276
A.E. Partners 1988 617,050 71,771 32,978 5,091 432,263
70% 8% 3,373
A.E. Partners 1989 550,000 62,726 33,901 3,846 565,563
103% 14% 6,325
A.E. Partners 1990 887,500 91,282 43,378 4,457 666,176
75% 11% 13,221
A.E. Nineties-10 2,200,000 204,502 43,820 17,399 1,190,163
54% 9% 22,316
A.E. Nineties-11 750,000 71,966 45,406 29,194 705,084
94% 17% 16,338
A.E. Partners 1991 868,750 70,473 52,797 12,648 671,870
77% 15% 21,509
A.E. Nineties-12 2,212,500 202,917 44,179 97,912 1,321,083
60% 11% 32,364
A.E. Nineties-JV 92 4,004,813 280,358 59,713 185,156 2,217,254
55% 14% 95,605
A.E. Partners 1992 600,000 39,536 24,075 2,755 465,131
78% 17% 20,487
A.E. Nineties-Public#1 2,988,960 144,231 36,859 68,629 1,387,107
46% 12% 45,623
A.E. Nineties-1993 3,753,937 211,780 39,932 24,081 1,450,142
39% 11% 56,440
A.E. Partners 1993 700,000 39,595 18,975 2,185 465,738
67% 20% 27,464
A.E. Nineties-P#2 3,323,920 149,059 27,860 27,729 1,083,221
155% 11% 79,873
A.E. Nineties-14 9,940,045 409,156 76,039 12,665 2,605,629
26% 10% 155,174
A.E. Partners 1994 892,500 23,233 15,638 1,593 347,929
39% 17% 39,354
A.E. Nineties-Public # 5,799,750 171,474 33,765 31,042 1,600,227
28% 12% 147,830
A.E. Nineties-15 10,954,715 250,692 46,796 9,862 2,460,670
22% 16% 302,259
A.E. Partners 1995 600,000 11,063 2,588 1,048 149,330
25% 25% 21,433
A.E. Nineties-P#4 6,991,350 143,594 23,561 18,711 1,009,362
14% 12% 175,000
A.E. Nineties-16 10,955,465 106,534 14,508 10,676 758,339
7% 12% 289,527
A.E. Partners 1996 800,000 1,303 488 5,592 6,115
1% 3% 6,115
A.E. Nineties-P#5 7,992,240 11,008 2,306 8,433 88,678
1% 4% 88,678
A.E. Nineties-17 (4) 4,628,750 0 0 0 0
0% 0%
</TABLE>
[FN]
(1) There have been no Partnership borrowings other than from Atlas.
The approximate principal amounts
of such borrowings were as follows: A.E. Nineties-10 - $330,000, A.E
. Nineties-11 - $112,500, A.E.
Nineties-12 - $331,875. A portion of each program's cash distributions
was used to repay that program's
loan.
(2) All cash distributions were from the sale of gas,
and not sales of properties.
(3) A portion of the cash distributions was used to drill t
hree reinvestment wells at a cost of $333,860
in accordance with the terms of the offering.
(4) This program had its first closing on June 25, 1997.
Table 3A provides information concerning the operating results of
previous limited partnerships sponsored
by the Managing General Partner and its Affiliates.
PROSPECTIVE INVESTORS SHOULD NOT ASSUME THAT THE PAST
PERFORMANCE OF PRIOR PROGRAMS IS INDICATIVE OF THE FUTURE
RESULTS OF THE PARTNERSHIP.
TABLE 3A
MANAGING GENERAL PARTNER
OPERATING RESULTS - INCLUDING EXPENSES
as of July 15, 1997
<TABLE>
<CAPTION>
Cash Last
on Quarterly -on-
Latest Quarterly
TOTAL COSTS Cash
Cash Cash Distribution
PROGRAM CAPITALIZATION OPERATING ADMIN. DIRECT
DISTRIBUTIONS(1) RETURN AS OF
DATE OF TABLE
<S> <C> <C> <C> <C> <C> <C> <C>
<C> <C>
Atlas L.P. #1-1985 $ 114,800 $24,193 $5,360 $1,212 $232,637
203% $1,912
A.E. Partners 1986 120,400 18,129 7,281 1,014 109,917
91% 1,142
A.E. Partners 1987 158,269 26,680 10,843 1,577 121,674
77% 945
A.E. Partners 1988 135,450 23,114 10,621 1,640 104,949
77% 1,086
A.E. Partners 1989 120,731 13,769 7,442 844 129,779
107% 1,388
A.E. Partners 1990 244,622 30,427 0 0 257,116
105% 4,970
A.E. Nineties-10 484,380 68,168 0 0 417,128
86% 8,150
A.E. Nineties-11 268,003 30,843 19,460 7,454 295,453
110% 7,002
A.E. Partners 1991 318,063 23,491 0 0 299,619
94% 8,079
A.E. Nineties-12 791,833 86,965 18,934 16,455 566,178
72% 13,870
A.E. Nineties-JV 92 1,414,917 138,087 29,411 9,657 788,970
56% 2,195
A.E. Partners 1992 176,100 13,179 0 0 232,741
132% 7,288
A.E. Nineties-Public #1 528,934 45,547 11,640 9,866 365,283
69% 14,407
A.E. Nineties-1993 Ltd. 1,264,183 90,763 17,114 6,738 317,836
25% 0
A.E. Partners 1993 219,600 13,199 0 0 174,765
80% 9,463
A.E. Nineties-Public #2 587,340 47,071 8,798 8,756 199,268
34% 0
A.E. Nineties-14 3,584,027 201,524 37,452 6,238 1,103,820
31% 76,429
A.E. Partners 1994 231,500 7,744 0 0 122,365
53% 13,584
A.E. Nineties-Public #3 928,546 57,158 11,255 10,347 533,409
57% 49,277
A.E. Nineties-15 3,435,936 107,440 20,055 4,226 1,048,297
31% 123,365
A.E. Partners 1995 244,725 3,688 0 0 36,869
15% 7,379
A.E. Nineties-Public #4 1,287,752 47,865 7,854 6,237 317,298
25% 39,177
A.E. Nineties-16 1,643,320 29,178 3,974 1,560 168,821
10% 78,607
A.E. Partners 1996 349,992 434 0 0 4,065
1% 4,065
A.E. Nineties-Public #5 1,654,740 3,669 769 2,811 0
0% 0
A.E. Nineties-17 (2) 1,133,917 0 0 0 0
0% 0
</TABLE>
[FN]
(1) All cash distributions were from the sale of gas and
not sales of properties.
(2) This program had its first closing on June 25, 1997.
========================================================================
====
<TABLE>
<CAPTION>
Table 4 sets forth the aggregate cash distributions and estimated federal tax
savings to investors in
Atlas' prior programs, based on the maximum marginal tax rate in each year, as
reported in the partnerships'
tax returns and such share of tax deductions as a percentage of their
subscriptions. PROSPECTIVE SUBSCRIBERS
ARE URGED TO CONSULT WITH THEIR OWN TAX ADVISORS CONCERNING THEIR SPECIFIC TAX
SITUATIONS AND SHOULD NOT
ASSUME THAT THE PAST PERFORMANCE OF PRIOR PROGRAMS IS INDICATIVE OF THE FUTURE
RESULTS OF THE PARTNERSHIP.
TABLE 4
SUMMARY OF INVESTOR TAX BENEFITS AND CASH DISTRIBUTION RETURNS
as of July 15, 1997
Percent
ESTIMATED FEDERAL TAX SAVINGS FROM (1):
Section Cash Investors Percent
ofCash of Cash
Investor tax tax IDC Depletion29
Tax Distributions total cash Dist. &
PROGRAM CAPITAL DEDUCT.(2) RATE DEDUCT(3)
ALLOWANCE(3)DEP(3) as of date Dist & Tax Savings
CREDIT(4) TOTAL OF TABLE(5) Tax Savings to date
<S> <C> <C> <C> <C> <C> <C> <C> <C><S>
<C> <C> <C> c> >
Atlas L.P. #1-1985 $ 600,000 99% 50.0% $ 298,337 $103,036/A
$55,915 $457,288 $1,228,961 $1,686,248 281%
A.E. Partners 1986 631,250 99% 50.0% 312,889 54,288N/A
13,507 380,684 575,337 956,020 151%
A.E. Partners 1987 721,000 99% 38.5% 356,895 40,243N/A
N/A 397,138 483,516 880,654 122%
A.E. Partners 1988 617,050 99% 33.0% 244,351 35,613N/A
N/A 279,964 432,263 712,227 115%
A.E. Partners 1989 550,000 99% 33.0% 179,685 50,165N/A
N/A 229,850 565,563 795,413 145%
A.E. Partners 1990 887,500 99% 33.0% 275,125 61,702N/A
178,026 514,853 666,176 1,181,029 133%
A.E. Nineties-10 2,200,000 100% 33.0% 726,000 113,583N/A
333,688 1,173,271 1,190,163 2,363,434 107%
A.E. Nineties-11 750,000 100% 31.0% 232,500 64,811N/A
213,136 510,447 705,084 1,215,530 162%
A.E. Partners 1991 868,750 100% 31.0% 269,313 70,107N/A
188,068 527,488 671,870 1,199,358 138%
A.E. Nineties-12 2,212,500 100% 31.0% 685,875 134,293N/A
390,962 1,211,130 1,321,083 2,532,213 114%
A.E. Nineties-JV 92 4,004,813 92.5% 31.0% 1,313,629 208,589N/A
551,396 2,073,614 2,217,254 4,290,867 107%
A.E. Partners 1992 600,000 100% 31.0% 186,000 52,423N/A
139,670 378,093 465,131 843,224 141%
A.E. Nineties-Public #1 2,988,960 80.5% 36.0% 877,511
132,109177,302 N/A 1,186,922 1,387,107 2,574,029 86%
A.E. Nineties-1993 Ltd. 3,753,937 92.5% 39.6% 1,378,377 140,580N/A
N/A 1,518,957 1,450,142 2,969,099 79%
A.E. Partners 1993 700,000 100% 39.6% 273,216 46,004N/A
N/A 319,220 465,738 784,958 112%
A.E. Nineties-Public #2 3,323,920 78.7% 39.6% 1,036,343
95,886178,420 N/A 1,310,649 1,083,221 2,393,870 342%
A.E. Nineties-14 9,940,045 95% 39.6% 3,739,445 250,589N/A
N/A 3,990,034 2,605,629 6,595,663 66%
A.E. Partners 1994 892,500 100% 39.6% 353,430 28,433N/A
N/A 381,863 347,929 729,792 82%
A.E. Nineties-Public #3 5,799,750 76.2% 39.6% 1,752,761
146,427255,021 N/A 2,154,209 1,600,227 3,754,436 65%
A.E. Nineties-15 10,954,715 90% 39.6% 3,904,261 228,401N/A
N/A 4,132,662 2,460,670 6,593,332 60%
A.E. Partners 1995 600,000 100% 39.6% 237,600 7,199N/A
N/A 244,799 149,330 394,129 66%
A.E. Nineties-Public #4 6,991,350 80% 39.6% 2,214,860
111,407127,016 N/A 2,453,283 1,009,362 3,462,645 50%
A.E. Nineties-16 10,955,465 81.5% 39.6% 3,361,289
47,379162,100 N/A 3,570,768 758,339 4,329,107 40%
A.E. Partners 1996 800,000 100% 39.6% 316,800 876N/A
N/A 317,676 6,115 323,791 40%
A.E. Nineties-Public #5 7,992,240 81.7% 39.6% 2,530,954
5,70250,000 N/A 2,586,656 88,678 2,675,334 33%
A.E. Nineties-17 (6) 4,628,750 84.8% 39.6% 1,555,092 0N/A
N/A 1,555,092 0 1,555,092 34%
</TABLE>
[FN]
(1) These columns reflect the savings in taxes which would have been
paid by an
investor, assuming full use
of deductions available to the investor.
(2) It is anticipated that approximately 80% of an Investor
General
Partner's subscription to the
Partnership will be deductible in 1997.
(3) The I.D.C. Deductions, Depletion Allowance and MCRS depreciation
deductions
have been reduced to credit
equivalents.
(4) The Section 29 tax credit is not available with respect to
wells
drilled after December 31, 1992.
N/A means not applicable.
(5) These distributions were all from production revenues. See
footnotes
1 and 3 of Table 3.
(6) This program had its first closing on June 25, 1997.
<TABLE>
<CAPTION>
Table 5 sets forth programs in which Atlas and Atlas Energy served as operator
and/or drilling contractor
for third party general partners as well as the partnerships where Atlas served
as managing general partner.
The table includes Atlas' share of costs and revenues set forth in Table 3A,
above. Atlas has drilled
approximately 1,600 wells over the 25 year period from 1972 to 1996 and during
this time it has completed
97% of the wells. In the current primary area of interest in Mercer County Atlas
has completed 98% of more
than approximately 780 wells drilled. These results are summarized below.
TABLE 5
ATLAS RESOURCES, INC. AND ITS AFFILIATES' HISTORICAL PRODUCTION RECORD
As of July 15, 1997 (4)
Last 3 Mo.
Year Wells Total Total Amount Total Distribution
Were Placed Total MCF's Invested In Amount Cum % Ending As of
into prod Wells(1) Produced Wells(2) Returned(2) Cash on Cash Date
of table
<C> <C> <C> <C> <C> <C> <C>
1973 6 2,441,694 576,000 3,907,035 678% 37,326
1974 18 2,848,015 2,387,200 3,805,024 159% 25,403
1975 21 4,075,086 2,814,200 6,482,504 230% 48,128
1976 14 2,828,717 1,819,200 4,302,987 237% 18,533
1977 26 8,983,554 3,912,600 15,879,600 406% 131,170
1978 78 7,660,988 12,399,900 18,690,770 151% 130,336
1979 46 8,917,660 7,404,000 19,253,887 260% 139,172
1980 41 5,559,636 6,561,100 13,325,338 203% 96,972
1981 77 6,139,674 15,382,850 16,729,747 109% 128,745
1982 63 2,395,909 12,438,500 5,667,380 46% 39,783
1983 22 1,222,687 6,725,480 2,899,136 43% 39,191
1984 47 4,436,586 10,663,250 9,892,277 93% 130,279
1985 39 4,658,218 8,971,200 9,866,478 110% 132,865
1986 45 5,249,261 9,649,100 10,178,561 105% 176,572
1987 12 1,472,294 2,425,800 2,608,755 108% 31,266
1988 37 3,560,747 7,688,386 5,918,573 77% 197,622
1989 48 3,584,254 9,967,768 6,485,873 65% 152,001
1990 46 4,593,458 9,038,238 8,463,126 94% 261,430
1991 99 7,285,288 16,034,382 13,491,108 84% 725,545
1992 64 6,736,695 14,250,032 12,132,989 85% 817,353
1993 107 8,779,450 21,958,681 14,574,633 66% 1,206,148
1994 94 4,993,425 20,418,366 8,124,620 40% 1,081,664
1995 105 4,506,764 22,350,889 7,677,238 34% 1,767,313
1996 114 2,429,705 25,396,708 4,302,161 17% 2,237,994
1997 50 160,643 10,977,861 285,186 3% 285,186
TOTAL 1,319 115,520,408 $262,211,691 $224,944,986 86%$10,037,999
</TABLE>
[FN]
(1) The above numbers do not include information for: (a) 87 wells
drilled
for General Motors from 1971
to 1973 which were subsequently purchased by General Motors; (b) 25
wells
successfully drilled in 1981 and
1982 for an industrial customer which requested that the wells be capped
and not
placed into production; (c)
127 wells drilled from 1980 to 1985 which were sold in 1993 and are no
longer
operated by Atlas; and (d)
wells which were drilled recently but are not yet in production.
(2) The column "Total Amount Invested in Wells" only includes funds
paid to
Atlas or Atlas Energy as
operator and/or drilling contractor for drilling and completing the
designated
wells. This column does not
include all of the costs paid by investors to the third party managing
general
partner and/or sponsor of the
program because such information is generally not available to Atlas or
Atlas
Energy. Similarly, the column
"Total Amount Returned" only includes amounts paid by Atlas or Atlas
Energy as
operator of the wells to the
third party managing general partner and/or sponsor of the program. This
column
does not set forth the
revenues which were actually received by the investors from the third
party
managing general partner and/or
sponsor because such information is generally not available to Atlas or
Atlas
Energy. Notwithstanding, the
columns "Total Amount Invested in Wells" and "Total Amount Returned"
also
include the partnerships where
Atlas serves as managing general partner and are presented on the same
basis as
the third party
partnerships.
(3) This column reflects total cash distributions beginning with the
first
production from the well, as
a percentage of the total amount invested in the well, and includes the
return
of the investors' capital.
(4) THE RESULTS OF TABLE 5 SHOULD BE VIEWED ONLY AS A MEASURE OF THE
LEVEL
OF ACTIVITY AND EXPERIENCE OF
ATLAS WITH RESPECT TO DRILLING PROGRAMS.
MANAGEMENT
MANAGING GENERAL PARTNER AND OPERATOR
Atlas, a Pennsylvania corporation, was incorporated in 1979 and Atlas
Energy, an Ohio corporation, was incorporated in 1973. As of December
31, 1996, Atlas and Atlas Energy operated approximately 1,172 oil or
natural gas wells located in Ohio and Pennsylvania. Atlas and Atlas
Energy have acted as operator with respect to the drilling of a total of
approximately 1,611 gas wells, approximately 1,562 of which were capable
of production in commercial quantities. Atlas' primary offices are
located at 311 Rouser Road, Moon Township, Pennsylvania 15108, near the
Pittsburgh International Airport.
Atlas has previously sponsored five public and twenty-one private
Development Drilling programs formed since 1985 to conduct natural gas
drilling and development activities in Pennsylvania and Ohio. In
addition, as operator, Atlas acted as general contractor with respect to
the drilling and completion of such partnerships' natural gas wells
located in Pennsylvania and is responsible for operating such wells.
Atlas Energy acted in the same capacity as operator of such
partnerships' wells located in Ohio. (See "Prior Activities".)
Atlas and its Affiliates employ a total of approximately ninety-nine
persons, consisting of three geologists (one of whom is an exploration
geologist), five landmen, five engineers, thirty-three operations
staff, eight accounting, one legal, eight gas marketing, and eighteen
administrative personnel. The balance of the personnel are engineering,
pipeline and field supervisors.
Atlas and Atlas Energy are wholly owned subsidiaries of AIC, Inc., a
corporation formed in July, 1995, which is a wholly owned subsidiary of
The Atlas Group, Inc. ("Atlas Group") that was formerly known as AEG
Holdings, Inc. ("AEGH"), a corporation which was also formed in July,
1995. The other subsidiaries of AIC, Inc. are: (i) Atlas Gas
Marketing, Inc., a gas marketing company; (ii) Mercer Gas Gathering,
Inc., a gas gathering company which gathers gas from Atlas' wells in
Mercer County, Pennsylvania, and delivers such gas directly to
industrial end-users or to interstate pipelines and local distribution
companies; (iii) Pennsylvania Industrial Energy, Inc., which sells
natural gas to industrial end-users in Pennsylvania; (iv) Transatco,
Inc., which owns a 50% interest in Topico which operates a pipeline in
Ohio; (v) Atlas Energy Corporation, which serves as managing general
partner of exploratory programs and driller and operator; and (vi)
Anthem Securities, Inc. which is a registered broker-dealer and member
firm of the NASD. Anthem Securities, Inc., which became an NASD member
firm in April, 1997, is the Dealer-Manager of the offering in all states
other than Minnesota and New Hampshire. Anthem Securities was formed
for the purpose of serving as Dealer-Manager of Atlas sponsored
Programs. In addition, Atlas is the sole owner of ARD Investments,
Inc., a corporation formed in July, 1995, and Atlas Energy is the sole
owner of AED Investments, Inc., a corporation formed in July, 1995.
Prior to July, 1995, all of the Atlas companies were wholly owned by
Atlas Energy. The purpose of forming Atlas Group, AIC, Inc., ARD
Investments, Inc. and AED Investments, Inc. was to achieve more
efficient concentration of funds of the Atlas group of companies,
thereby minimizing transaction costs and maximizing returns on
investment vehicles.
Atlas and its Affiliates have constructed for their use over 600 miles
of gas transmission lines and produce in excess of nine billion cubic
feet of natural gas annually from wells they operate, which they market
directly to end users or to interstate pipelines and local distribution
companies, and also purchase an additional eight billion cubic feet of
natural gas annually from third party producers locally and in the
south/southwest United States and resell the production to more than 100
customers.
Organizational Diagram
Organizational Diagram
The Atlas Group, Inc.
|
AIC, Inc.
|-----------------------------------|
|
|
|-Atlas Resources, Inc. (Managing General Partner, Driller and Operator
| | in Pennsylvania)
| |
| ARD Investments, Inc.
|
|-Mercer Gas Gathering, Inc. (Gas Gathering Company)
|
|-Pennsylvania Industrial Energy, Inc. ("PIE") (Sells Gas to
| Pennsylvania Industry)
|
|-Atlas Energy Corporation (Managing General Partner of
| Exploratory Drilling Programs and Driller
| and Operator)
|
|-Transatco, Inc., which owns 50% of Topico (Operates Pipeline in Ohio)
|
|-Atlas Gas Marketing, Inc. (Markets Natural Gas)
|
|-Anthem Securities Inc. (Registered BrokerDealer and Dealer-Manager)
|
|-Atlas Energy Group, Inc. (Driller and Operator in Ohio)
|
|
The audited financial statements of Atlas and AEGH, now known as Atlas
Group, as of July 31, 1996 and 1995, are included in "Financial
Information Concerning the Managing General Partner, Atlas Group and the
Partnership".
OFFICERS, DIRECTORS AND KEY PERSONNEL
The directors of Atlas serve until Atlas' next annual meeting of
stockholders in October, 1997, or until their successors are elected.
All officers serve until the regular meeting of directors immediately
following the annual meeting of stockholders and until their successors
are elected.
The officers, directors and key personnel of Atlas, who are also
officers, directors and key personnel of Atlas Group and Atlas Energy,
are as follows:
NAME AGE POSITION OR OFFICE
Charles T. Koval 63 Chairman of the Board and a Director
James R. O'Mara 53 President, Chief Executive Officer .
. and a Director
Bruce M. Wolf 48 General Counsel, Secretary and a .
Director
James J. Kritzo 62 Vice President of the Land Department
Donald P. Wagner 55 Vice President of Operations
Frank P. Carolas 37 Vice President of Geology
Tony C. Banks 42 Vice President of Finance and Chief
. Financial Officer
Barbara J. Krasnicki 52 Vice President of Administration
Jacqueline B. Poloka 46 Controller
John A. Ranieri 37 Director of Gas Marketing
Eric D. Koval 32 President of Anthem Securities, Inc.
Joseph R. Sadowski 66 Director
CHARLES T. KOVAL. Chairman of the Board and a director. From 1955 to
1963, Mr. Koval served as a pilot in the U.S. Marine Corps and the
Pennsylvania National Guard, attaining the rank of captain. He co
founded Atlas Energy. Prior to the formation of Atlas Energy, he was
involved in the securities business initially with a national firm,
Federated Investors, and then with his own firm, Allegheny Planned
Income, both headquartered in Pittsburgh, Pennsylvania. Mr. Koval is
serving and has served as a director of Imperial Harbors since 1980. Mr.
Koval received a Bachelor of Science Degree from Pennsylvania State
University in 1955.
JAMES R. O'MARA. President, chief executive officer and a director. Mr.
O'Mara served with the United States Army Security Agency (ASA) and is a
Vietnam veteran. Mr. O'Mara is a Certified Public Accountant and had
been associated with Coopers and Lybrand, a national accounting firm,
and Teledyne, Inc., a large conglomerate, before joining Atlas Energy in
1975. He is a member of the Pennsylvania Institute of Certified Public
Accountants and the President of Mercer Gas Gathering, Inc. Mr. O'Mara
received a Bachelor of Science Degree in Accounting from Gannon
University in 1968.
BRUCE M. WOLF. General Counsel, Secretary and a director. Mr. Wolf
received a Bachelor of Arts Degree from Washington and Jefferson College
in 1970 and his law degree in 1975 from the University of Pittsburgh.
From 1975 until his association with Atlas Energy in January, 1980, he
was a member of the staff of Price Waterhouse and Company, a national
accounting firm. Mr. Wolf is a member of the Bars of Pennsylvania, the
U.S. Tax Court, the Allegheny County Bar Association and its respective
Taxation and Natural Resources Sections. He is also a member of the
Board of Trustees and currently President of the Independent Oil and Gas
Association of Pennsylvania, a trade association representing
Pennsylvania natural gas producers. Mr. Wolf is the President of Atlas
Gas Marketing, Inc., AIC, Inc., ARD Investments, Inc. and AED
Investments, Inc.
JAMES J. KRITZO. Vice President of the Land Department. Mr. Kritzo
attended Indiana University of Pennsylvania. From 1956 to 1963 he was
employed by R.J. Reynolds Company in Sales and Marketing. In 1964 he
joined the Sherwin Williams Company as a Regional Sales Representative,
later being appointed Operations Manager of the Pittsburgh District
Service Center. In 1979 he joined the Land Department of Atlas Energy.
Mr. Kritzo is a member of the Association of Petroleum Landmen and the
Benedum Chapter of the A.A.P.L.
DONALD P. WAGNER. Vice President of Operations. Mr. Wagner, who has over
32 years experience in all phases of gas and oil field operations, was
President of Energy Well Services, Inc., from 1971 through 1979 when he
joined Atlas Energy. Mr. Wagner is a member of the Society of Petroleum
Engineers as well as a member of the Pennsylvania Oil and Gas
Association.
FRANK P. CAROLAS. Vice President of Geology. Mr. Carolas is a certified
petroleum geologist and has been with Atlas Energy since 1981. He
received a Bachelor of Science Degree in Geology from Pennsylvania State
University in 1981 and is an active member of the American Association
of Petroleum Geologists.
TONY C. BANKS. Vice President and Chief Financial Officer. Mr. Banks
has over twenty years of finance, accounting and administrative
experience in the oil and gas industry, all with various subsidiaries of
Consolidated Natural Gas Company. He started as an accounting clerk
with CNG's parent company in 1974 and progressed through various
positions with CNG's Appalachian producer, northeast gas marketer and
southwest producer to his last position as Treasurer of CNG's national
energy marketing subsidiary. Mr. Banks served on CNG's corporate-wide
Financial Accounting and Planning, Energy Price Risk and Information
Services Steering committees and has chaired the Financial Advisory and
Accounting Research committees. In 1989, Mr. Banks was a seminar
instructor for the University of Tulsa, and over the years has given
presentations to industry groups on topics including energy derivatives,
accounting for Appalachian gas imbalances and post regulation credit
review and evaluation. He received a Bachelor of Science Degree in
Accounting/Computers from Point Park College in Pittsburgh and passed
the Pennsylvania Certified Public Accountant examination in 1988. Mr.
Banks joined Atlas Group in 1995 and is Vice President of AIC,Inc, ARD
Investments, Inc. and AED Investments, Inc.
BARBARA J. KRASNICKI. Vice President of Administration. Ms. Krasnicki
has been with Atlas Energy since its inception in 1971. She was the
Office and Personnel Manager for Atlas Energy during that time. She
served as Office Manager of Allegheny Planned Income from 1965 to 1971.
Ms. Krasnicki has an Associate in Science Degree from Point Park
College, Pittsburgh, Pennsylvania.
JACQUELINE B. POLOKA. Controller. Ms. Poloka began her career with
Atlas Energy in 1980 as Administrative Assistant. She was promoted to
Production Accounting Manager in 1987 and subsequently to Controller in
1994. Ms. Poloka graduated from Carlow College,Pittsburgh, Pennsylvania
with a Bachelor of Science Degree in Accounting. Ms. Poloka is a member
of the American Society of Women Accountants, Independent Oil and Gas
Associations Tax Committee, Delta Epsilon Sigma Honor Society and
Strathmore's Who's Who.
JOHN A. RANIERI. Director of Gas Marketing for Atlas Gas Marketing, Inc.
Mr. Ranieri graduated from Northwestern University in 1981 with a
Bachelor of Science Degree in Chemical Engineering. He joined the
Columbia Gas Distribution Companies as a marketing engineer; first in
Charleston, West Virginia, and later in Mansfield, Ohio. In 1984, he was
promoted to Gas Procurement Manager of Columbia Gas of Pennsylvania with
responsibility for all Appalachian purchases. In 1988 he helped start a
new marketing affiliate for the parent company and remained with that
organization until joining Atlas in July, 1990.
ERIC D. KOVAL. President of Anthem Securities, Inc. Mr. Koval
graduated from Pennsylvania State University with a degree in Petroleum
and Natural Gas Engineering in 1987. While attending Penn State, he was
employed by Mobil Oil Company in Oklahoma, and Union Oil of California
(UNOCAL), offshore Santa Barbara, California. His experience also
includes working five years for Marathon Oil Company (USX-Marathon) in
various production and reservoir engineering assignments in four
different basins throughout the United States. He has graduate credits
from Ball State University, Indiana, and Bowling Green State University,
Ohio, in their Masters of Business Degree programs. Mr. Koval joined
Atlas in 1993 as a production engineer specializing in acquisitions and
dispositions. He subsequently moved into the Investor Relations
Department in 1994. Mr. Koval is a registered Broker/Dealer Principal,
member of the Society of Petroleum Engineers, and lifetime member of
Penn State Alumni Association. Mr. Koval is the son of Charles Koval.
JOSEPH R. SADOWSKI. A director. He co-founded Atlas Energy and served
as an executive officer until he resigned as such in 1996. Mr. Sadowski
has been involved in the securities business with Revere Management and
Oppenheimer Management Company. From 1966 until 1971, he managed his own
brokerage firm, Whitman Securities in Cherry Hill, New Jersey. Mr.
Sadowski has served as a director of Dixon Ticonderoga since 1987 and is
a past director of Northeast Ohio Operating Companies, Inc., Canonsburg
Hospital Foundation and the Verland Foundation. Mr. Sadowski received a
Bachelor of Arts Degree in Industrial Management from LaSalle College in
1954 and attended Temple University from September, 1957 to June, 1958.
The officers and directors of AIC, Inc., which owns 100% of the common
stock of Atlas, are as follows: Bruce M. Wolf, President and a
director, Tony C. Banks, Vice President, Secretary and a director, and
Norman J. Shuman, Vice President, Treasurer and a director. The
biographies of Messrs. Wolf and Banks are set forth above.
REMUNERATION
No officer or director of the Managing General Partner will receive any
direct remuneration or other compensation from the Partnership. Such
persons will receive compensation solely from Atlas and its Affiliated
companies.
The aggregate remuneration paid during the fiscal year ended July 31,
1996, to the five most highly compensated persons who are executive
officers of Atlas and whose aggregate remuneration exceeded $100,000 and
to all executive officers of Atlas as a group, for services in all
capacities while acting as executive officers of Atlas and its
Affiliates, was as follows:
(A) (B) (C) (D) (E)
NAME OF INDIVIDUAL OR NUMBER OF PERSONS IN GROUP (3) CAPACITIES IN
WHICH SERVED (4) CASHCOMPENSATION (1) COMPENSATION PURSUANT
TOPLANS (2) AGGREGATE OF CONTINGENT FORMS OF REMUNERATION
James R. O'Mara President, Chief Executive Officer and a Director
$305,300 $12,066 -
Charles T. Koval Chairman of the Board and a Director $296,500
$5,281 -
Bruce M. Wolf General Counsel, Secretary and a Director
$217,150 $11,735 -
Donald P. Wagner Vice President of Operations
$125,604 $5,281 -
Tony C. Banks Vice President and Chief Financial Officer
$124,000 $3,926 -
Executive Officers as a Group (8 persons) $1,383,530
$70,703 -
(1) The amounts indicated were composed of salaries and all cash
bonuses for services rendered to Atlas and its Affiliates during the
last fiscal year, including compensation that would have been paid in
cash but for the fact the payment of such compensation was deferred.
(See "- Security Ownership of Certain Beneficial Owners and Managers
Agreements Affecting Ownership of Atlas Group Stock," below.)
(2) Atlas and its Affiliates have a retirement plan described under
"-Security Ownership of Certain Beneficial Owners and Managers - ESOP,"
below, and a 401(K) plan which allowed employees to contribute the
lesser of 15% of their compensation or $9,500 for the calendar year 1996
or $9,240 for the calendar year 1995. Atlas Energy contributed an amount
equal to 50% and 30% of each employee's contribution for the calendar
years July 31, 1996 and 1995, respectively.
(3) There were no stock options granted or exercised during the
fiscal year ended July 31, 1996, to the above individuals. (See "
Security Ownership of Certain Beneficial Owners and Managers Agreements
Affecting Ownership of Atlas Group Stock," below.)
(4) During the fiscal year ended July 31, 1996, each director was
paid a director's fee of $12,000 for the year. There are no other
arrangements for remuneration of directors.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGERS
Atlas Group owns 100% of the common stock of AIC, Inc., which owns 100%
of the common stock of Atlas. The following table sets forth, as of July
31, 1996, information as to the beneficial ownership of common stock of
Atlas Group by each person known to Atlas Group to own beneficially 5%
or more of the outstanding common stock of Atlas Group, by directors and
nominees, naming them individually, and by all directors and officers of
Atlas Group as a group:
SHARES OF COMMON PERCENT OF CLASS
Charles T. Koval 109,391 26.445% Joseph R. Sadowski
109,142 26.384% James R. O'Mara 95,164 (1) 23.005%
Bruce M. Wolf 44,710 (2) 10.808%
Directors and Officers as a Group (9 persons) 377,654 (1)(2)
91.344%
(1) Includes 22,164 shares of Atlas Group issuable upon the grant
and exercise of stock options held by Mr. O'Mara.
(2) Includes 14,210 shares of Atlas Group issuable upon the grant
and exercise of stock options held by Mr. Wolf.
ESOP. Atlas Group has adopted Atlas Energy's existing Employee Stock
Ownership Plan ("ESOP") for the benefit of its employees, other than
Messrs. Koval and Sadowski, to which it will contribute annually
approximately 6% of annual compensation in the form of shares of Atlas
Group. Atlas Group anticipates that it will contribute approximately
3,000 shares of its stock in the ESOP each year.
AGREEMENTS AFFECTING OWNERSHIP OF ATLAS GROUP STOCK. Pursuant to
agreements between Atlas Group and its shareholders to accommodate the
desire of Messrs. Sadowski and Koval to gradually liquidate a majority
of their stock ownership in Atlas Group in preparation for their
retirement from Atlas Group, it is anticipated that by the year 2003 the
stock ownership of Atlas Group by Messrs. Koval and Sadowski will be
reduced through a series of stock redemptions to approximately 15%
each. The stock ownership of certain of the remaining officers will be
increased to approximately 60%, in the aggregate, and the stock
ownership of the ESOP will be approximately 10%.
The stock redemptions require Atlas Group to execute promissory notes,
from time to time, in favor of Messrs. Koval and Sadowski, the first of
which, in the original principal amount of $4,974,340 each, plus
interest at 13.5%, were executed by Atlas Energy and were assumed by
Atlas Group and are reflected in the audited balance sheet of Atlas
Group and its subsidiaries dated July 31, 1995. These promissory notes
are totally subordinated to Atlas Group's obligations to banks, the ESOP
and any and all other debts or obligations of Atlas Group, including its
indemnification obligations and Atlas' drilling obligation to the
Partnership. If Atlas Group defaults on a promissory note, Messrs.
Koval and Sadowski are entitled to purchase up to approximately an
additional 1,500,000 shares of Atlas Group to regain management control.
(See "Financial Information Concerning the Managing General Partner,
Atlas Group and the Partnership".)
Atlas views the transactions discussed above as a natural transition
which will have no adverse effect on the operations or activities of
Atlas or the Partnership. In 1990, Messrs. Koval and Sadowski entered
into five year employment agreements with Atlas Energy, which agreements
have been transferred to Atlas Group, renewable for an additional five
year term and on an annual basis after the first 10 years. In this
regard, Mr. Sadowski retired other than as a director in 1996. The
terms and provisions of the employment agreements with Mr. Koval are
subject to negotiation at the time of each renewal, and currently do not
provide for any severance payments. Also, during the terms of the
promissory notes Messrs. Koval and Sadowski have the right to serve as
directors of Atlas Group and as one of the two trustees of the ESOP.
On November 8, 1990, Atlas Energy entered into a Stock Option Agreement
which established a management employee stock option plan to provide
incentive compensation for certain of its key employees to acquire up to
47,578 shares of common stock of Atlas Energy. Pursuant to the plan,
Messrs. O'Mara and Wolf were granted stock options for 22,164 and 14,210
shares, respectively. The options are 100% vested with an option price
of $1.00 per share and may be exercised when the promissory notes to
Messrs. Koval and Sadowski have been satisfied and will terminate on
August 15, 2012. The issuance of future options will be determined at a
later date. On November 14, 1990, Atlas Energy
granted 92,098 shares of restricted common stock to certain management
investors of the company, which was valued at the time by Atlas Energy
at $2,695,708. The restrictions lapsed with respect to 25% of the shares
on November 14, 1990, 1991, 1992 and 1993. (See "Financial Information
Concerning the Managing General Partner, Atlas Group and the
Partnership".) The Stock Option Agreement and the outstanding stock
options have been converted from Atlas Energy to Atlas Group. The
shareholders are also subject to a Shareholders Agreement which
provides, among other things, that such shareholders may not transfer
their shares in Atlas Group unless the shares have first been offered to
Atlas Group and the other shareholders.
TRANSACTIONS WITH MANAGEMENT AND AFFILIATES
Atlas, its officers, directors and Affiliates have in the past invested,
and may in the future invest, as participants in Programs sponsored by
Atlas on the same terms as unrelated investors. The
Managing General Partner, its officers and directors and Affiliates may
also subscribe for Units in the Partnership on the same basis as Limited
Partners or Investor General Partners, except that they are not required
to pay the Dealer-Manager fees, Sales Commissions or due diligence
reimbursements. Also, the Managing General Partner and its Affiliates
may buy up to 10% of the Units, which will not be applied towards the
minimum Partnership Subscription required for the Partnership to begin
operations. Subject to the foregoing, any subscription by the Managing
General Partner or its officers, directors or Affiliates will dilute the
voting rights of the Participants. However, the Managing General Partner
and its officers, directors and Affiliates are prohibited from voting
with respect to certain matters. (See "Summary of Partnership Agreement
- - Voting Rights.")
Atlas, its officers, directors and Affiliates have also participated in
the past, and may in the future participate, as Working Interest owners
in wells in which Atlas or its Programs have an interest. Frequently,
such participation has been on more favorable terms than the terms which
were available to unrelated investors and Atlas Group has loaned to its
officers and directors amounts in excess of $60,000 from time to time as
necessary for participation in such wells or Programs. Prior to 1996
such loans either were non-interest bearing or accrued interest at
variable rates, but since 1995 all new loans for such purposes are
required to bear interest. Currently, no such loans are outstanding.
See "Conflicts of Interest - Certain Transactions" for further
information concerning prior activities between Atlas and its Affiliates
and the partnerships where Atlas serves as Managing General Partner.
INVESTMENT OBJECTIVES
Except for the historical information contained herein, the matters
discussed below are forward looking statements that involve risks and
uncertainties, including the risk that the Wells are productive but do
not produce enough revenue to return the investment made, Dry Holes,
uncertainties concerning the price of gas, and the other risks detailed
below. The actual results that the Partnership achieves may differ
materially from the objectives set forth below due to such risks and
uncertainties. The Partnership's principal investment objectives are to
invest the Partnership Subscription in natural gas Development Wells
which will:
(1) Provide quarterly cash distributions until the wells are
depleted, (historically 20+ years) with a preferred annual cash flow of
10% during the first five years based on the original subscription
amount. (See "Risk Factors - Special Risks of the Partnership - Risk of
Unproductive Wells in Development Drilling," "Prior Activities" and
"Participation in Costs and Revenues - Subordination of Portion of
Managing General Partner's Net Revenue Share".)
(2) Obtain tax deductions in 1997 from intangible drilling and
development costs to offset a portion of the Participants' taxable
income (subject to the passive activity rules in the case of Limited
Partners). One Unit will produce a 1997 tax deduction of $8,000 against
ordinary income for Investor General Partners and against passive income
for Limited Partners. For an investor in either the 39.6% or 36% tax
bracket, one Unit will save $3,168 or $2,880 respectively in federal
taxes this year. Most states also allow this type of a deduction against
the state income tax.
(3) Offset a portion of any taxable income generated by the
Partnership with tax deductions from percentage depletion, presently 16%
(estimated to be 18% on net revenue). Atlas estimates that this feature
should reduce an investor's effective tax rate from 39.6% to 33.3%
(i.e., 84% of 39.6%) on Partnership net revenues.
(4) Obtain tax deductions of the remaining 20% of the initial
investment from 1998 through 2005. The investor will receive an
additional $2,000 tax deduction per Unit generated through the remaining
depreciation over a seven-year cost recovery period of the Partnership's
equipment costs for the wells.
ATTAINMENT OF THE PARTNERSHIP'S INVESTMENT OBJECTIVES WILL DEPEND ON
MANY FACTORS, INCLUDING THE ABILITY OF THE MANAGING GENERAL PARTNER TO
SELECT SUITABLE PROSPECTS WHICH WILL BE PRODUCTIVE AND PRODUCE ENOUGH
REVENUE TO RETURN THE INVESTMENT MADE. THE SUCCESS OF THE PARTNERSHIP
DEPENDS LARGELY ON FUTURE ECONOMIC CONDITIONS, ESPECIALLY THE FUTURE
PRICE OF NATURAL GAS WHICH IS VOLATILE AND MAY DECREASE.
THERE CAN BE NO GUARANTEE THAT THE FOREGOING OBJECTIVES WILL BE
ATTAINED.
PROPOSED ACTIVITIES
IN GENERAL
The Partnership will be funded to drill wells which are located
primarily in the Mercer County area of Pennsylvania, although the
Managing General Partner has reserved the right to use up to 15% of the
Partnership Subscription to drill wells in other areas of the United
States. Atlas anticipates that all of the Partnership's wells will be
classified as gas wells which may produce a small amount of oil. (See "-
Information Regarding Currently Proposed Prospects" and "Prior
Activities".)
The wells drilled by the Partnership will be Development Wells which
will primarily test the Clinton/Medina geological formation in
Pennsylvania and Ohio. It is anticipated that the Clinton/Medina
formation to be tested by the Partnership will normally be found between
5,900 to 6,800 feet in depth. The number of Prospects in which the
Partnership will acquire interests and on which the Partnership will
drill wells will depend on the amount of the Partnership Subscription
received and the Partnership's aggregate percentage of the Working
Interest in the wells. Assuming the Partnership acquires 100% of the
Working Interest in the Prospects and all of the Prospects are situated
in the Mercer County area, the Participants would participate in
developing approximately 4 to 5 Prospects if the minimum Partnership
Subscription of $1,000,000 is received, 35 to 35 Prospects if the
maximum Partnership Subscription of $8,000,000 is received, and 44 to 45
Prospects if the Managing General Partner increases the size of the
offering to $10,000,000. The actual amount of the Working Interest in
each Prospect acquired by the Partnership and the number of Prospects
developed by the Partnership may vary from these estimates.
The Managing General Partner may not, without the vote of a majority in
interest of Participants, change the investment and business purpose of
the Partnership or cause the Partnership to engage in activities outside
the stated business purposes of the Partnership through joint
ventures with other entities.
INTENDED AREAS OF OPERATIONS
Prospects located in Pennsylvania and drilled to the Clinton/Medina
geological formation will consist of approximately 50 acres, subject to
adjustment to take into account Lease boundaries. Wells in Pennsylvania
will not be drilled closer than approximately 1,650 feet to each other,
which is greater than the minimum area permitted by state law (660 feet)
or local practice to protect against drainage from adjacent wells.
Prospects located in Ohio and drilled to the Clinton/Medina geological
formation will consist of approximately 40 acres subject to adjustment
to take in to account Lease boundaries, and will not be drilled closer
than approximately 1,100 feet to each other. In addition, the
assignments will be limited to a depth of from the surface to the top of
the Queenston formation, and Atlas will retain the drilling rights below
the Clinton/Medina geological feature. The Partnership will not acquire
the deep drilling rights because it is a Development Drilling program
which will not allocate any money to seismic or to drilling Exploratory
Wells which would be the case with Horizons deeper than the
Clinton/Medina. Notwithstanding, in the future seismic could be run on
the Horizons below the Clinton/Medina geological feature which might
provide a basis for Atlas drilling an Exploratory Well. The Partnership
would not share in the profits, if any, from these activities. (See "-
Acquisition of Leases" and "Information Regarding Currently Proposed
Prospects", below.)
The wells in Pennsylvania and Ohio will test the Clinton/Medina
geological formation, a blanket sandstone found throughout most of the
northwestern edge of the Appalachian Basin. The Clinton/Medina is
described in petroleum industry terms as a "tight" sandstone with
porosity ranging from 6% to 12% and with very low permeability. Porosity
is the percentage of void space between sand grains that is available
for occupancy by either liquids or gases. Permeability is the property
of porous rock that allows fluids or gas to flow through it. Geological
features such as structure and faulting are not generally factors in
finding productive Clinton/Medina deposits, instead, sand quality in
terms of net pay zone thickness and porosity and the effectiveness of
fracture stimulation appear to be the governing factors in generating
commercial production. A well drilled in the Clinton/Medina usually
requires hydraulic Fracturing of the formation to stimulate productive
capacity. Based on the results of Atlas' previous programs, it is
anticipated that all of the Partnership's Wells will be completed and
Fraced in two different zones of the Clinton/Medina geological feature.
Generally, gas from Clinton/Medina wells is produced at rates which
decline rapidly during the first few years of operation. Although
Clinton/Medina wells can produce for many years, a proportionately
larger amount of the production can be expected within the first several
years. See "- Information Regarding Currently Proposed Prospects" and
the model decline curve included in the geological report prepared by
United Energy Development Consultants, Inc. ("UEDC"), an independent
geological and engineering firm, ("UEDC Geological Report").
The Managing General Partner also has reserved the right to use up to
15% of the Partnership Subscription to drill wells in other areas of the
United States.
ACQUISITION OF LEASES
Atlas will have the right, in its sole discretion, to select the
Prospects which the Partnership will participate in developing. The
currently proposed Prospects are set forth in "- Information Regarding
Currently Proposed Prospects", and represent the necessary Prospects if
80% of the potential maximum Partnership Subscription of $10,000,000 is
raised and the Partnership takes 100% of the Working Interest. It is
anticipated that the Prospects will be transferred to the Partnership,
but not immediately recorded, beginning upon or after the Initial
Closing Date subject to Atlas' right of substitution of such Prospects
depending upon, among other things, the amount of the Partnership
Subscription, the latest geological data available, potential title
problems, approvals by federal and state departments or agencies,
agreements with other Working Interest owners and continuing review of
other properties which may be available and if no other circumstances
occur which in Atlas' opinion diminish the relative attractiveness of
the Prospects. It is not anticipated that such Prospects will be
selected in the order in which they are set forth. Atlas has the right,
in its sole discretion, to substitute other Prospects not identified,
provided that such other Prospects meet the same general criteria for
development potential as the currently proposed Prospects. However, most
of the Partnership's Development Wells will have as their objective the
Clinton/Medina formation discussed in the UEDC Geological Report and
will be located in areas where Atlas or its Affiliates have previously
conducted drilling operations. Nevertheless, the Managing General
Partner has reserved the right to use up to 15% of the Partnership
Subscription to drill wells in other areas of the United States.
In the event any of the currently proposed Prospects are substituted,
the Partnership takes a lesser percentage of the Working Interest in the
Prospects, more than $8,000,000 is raised, or Prospects will be drilled
in areas of the United States other than the currently proposed
locations, the Prospects will be selected by Atlas primarily from Leases
included in the existing leasehold inventory of Atlas or its Affiliates
and to a lesser extent, from Leases hereafter acquired by Atlas or its
Affiliates or from Leases owned by independent third parties.
Consequently, for additional or substituted Leases prospective
subscribers will not have the opportunity to evaluate for themselves the
relevant geological, economic or other information regarding those
Prospects. Atlas has not authorized any party to make any
representations concerning the possible inclusion of any other Prospects
in the Partnership and no such information will be shown or provided to
any person for the purpose of deciding whether to invest in the
Partnership. Any representations to the contrary are erroneous and shall
be disregarded. Accordingly, prospective Participants should not base
any investment decision on any oral representation by any party or on
the existence of any such inventory.
As of the date of this Prospectus, Atlas and its Affiliates owned
approximately 80,500 net and gross acres of undeveloped leasehold
acreage in Pennsylvania, 18,000 net acres and 20,000 gross acres of
undeveloped lease acreage in western West Virginia and 14,300 net acres
and 16,100 gross acres of undeveloped lease acreage in eastern Kentucky.
Most, if not all, of the leases in eastern Kentucky and western West
Virginia are held by production. Atlas and its Affiliates are engaged
in a program to acquire additional leasehold acreage in Pennsylvania and
other areas of the United States. Atlas believes that it and its
Affiliates' leasehold inventory will be sufficient to provide all of the
Prospects to be developed by the Partnership.
Before selecting a Prospect for development by the Partnership, Atlas
will review all available geologic data including logs, completion
reports and plugging reports for wells located in the vicinity of the
proposed Prospect. Atlas has obtained the UEDC Geological Report with
respect to the development of the Clinton/Medina geological formation in
the primary area where the Partnership will conduct its activity.
It has been Atlas' experience that oil and gas production from wells
drilled to the Clinton/Medina geologic formation is reasonably
consistent within close proximity, although from time to time great
disparity in well performance can occur in wells located in close
proximity. (See "Conflicts of Interest - Conflicts Involving the
Acquisition of Leases".) Production information relating to the wells
which are in the general area of the proposed Prospects is set forth in
"- Information Regarding Currently Proposed Prospects". Atlas believes
that the production information is reliable, although as to certain of
the Prospects the production information is incomplete because there was
a third party operator and production information is not available.
Also, some of the wells have only been producing for a short period of
time or are not yet completed or on-line. In reviewing the production
information, prospective subscribers are cautioned to carefully read the
general comments set forth in "- Information Regarding Currently
Proposed Prospects" regarding the production information.
It is anticipated that the Leases comprising each Prospect will be
acquired from the Managing General Partner or its Affiliates and
credited to the Managing General Partner as a part of its required
Capital Contribution at its Cost unless the Managing General Partner has
reason to believe that Cost is materially more than the fair market
value of such property in which case the price will not exceed the fair
market value of such property. Production and revenues from a well
drilled on a Prospect will be net of the applicable Landowner's Royalty
Interest (typically 1/8th (12.5%) of gross production), and any other
applicable Overriding Royalty Interests, which, in the aggregate, are
not expected to exceed 1/32 of 8/8th (3.125%) in respect of any
Prospect. Neither Atlas nor its Affiliates will receive any Royalty or
Overriding Royalty Interest.
It is anticipated that the Partnership will have an 87.5% Net Revenue
Interest in each Lease as shown by the summary of the Royalty and
Overriding Royalty Interests burdening each Lease location for 32 of the
currently proposed Prospects set forth in "- Information Regarding
Currently Proposed Prospects" and an 84.375% Net Revenue Interest in the
Leases covering three of the currently proposed Prospects. (See "
Interests of Parties".) The Leases in areas of the United States other
than the Mercer County area may also be subject to greater Overriding
Royalty Interests, third party net profits interests, carried interests,
production payments, reversionary interests or other retained or carried
interests. With respect to certain conflicts of interest between the
Managing General Partner and the Partnership with respect to the
acquisition of Leases, see "Conflicts of Interest Conflicts Involving
Acquisition of Leases".
Because Atlas will assign to the Partnership only such number of
Prospects as Atlas believes are necessary for the drilling operations of
the Partnership, the Partnership will not Farmout any undeveloped
Prospects.
TITLE TO PROPERTIES
Title to all Leases acquired by the Partnership will be held in the name
of the Partnership. However, it is possible that initially title to such
Leases will be held in the name of the Managing General Partner or its
Affiliates, or in the name of any nominee designated by the Managing
General Partner, in order to facilitate the acquisition of the Leases.
Title to the Leases will be transferred to the Partnership from time to
time after the Initial Closing Date, and filed for record following
drilling. It is not the practice in the oil and gas industry to obtain
title insurance on leaseholds and the Managing General Partner will not
obtain title insurance with respect to the Working Interests in the
Leases to be assigned to the Partnership. Also, in the oil and gas
industry leasehold assignments generally do not contain a warranty as to
the title to the leasehold. However, a favorable formal title opinion
with respect to the Working Interest in each Lease composing the acreage
on which the well is situated will be obtained before each well is
drilled. Nevertheless, if the title to the Working Interest in a Lease
is defective, the Partnership will not have the right to recover against
the transferor (the Managing General Partner or its Affiliates) on a
title warranty theory and there is no assurance that the Partnership
will not experience losses from title defects
excluded from or not disclosed by the formal title opinion. The Managing
General Partner will take such steps as it deems necessary to assure
that the Partnership has acceptable title for its purposes, however, the
Managing General Partner is free to use its own judgment in waiving
title requirements and will not be liable for any failure of title of
Leases transferred to the Partnership.
FORMATION OF THE PARTNERSHIP AND POWERS OF THE MANAGING GENERAL PARTNER
Atlas will serve as the Managing General Partner of the Partnership and
the Operator of the wells in Pennsylvania, Atlas Energy will serve as
the Operator of any wells in Ohio, and Atlas or an Affiliate will serve
as Operator of any wells located in other areas of the United States.
Atlas' authority as Managing General Partner in conducting the affairs
of the Partnership is virtually unlimited. However, Participants are
expressly granted certain rights and certain express restrictions are
placed on the Managing General Partner by the Partnership Agreement. As
to the removal of the Managing General Partner and the Operator, and the
appointment of successors, see "Summary of Partnership Agreement" and
"Summary of Drilling and Operating Agreement".
DRILLING AND COMPLETION ACTIVITIES; OPERATION OF PRODUCING WELLS
Under the Drilling and Operating Agreements the responsibility for
drilling and completing (or plugging) Partnership wells will be on Atlas
on Prospects located in Pennsylvania, Atlas Energy on Prospects located
in Ohio and Atlas or an Affiliate on any Prospects located in other
areas of the United States. The Partnership will pay the drilling and
completion costs to Atlas, Atlas Energy or an Affiliate as incurred,
except that the Partnership is permitted to make advance payments to
Atlas, Atlas Energy or an Affiliate where necessary to secure tax
benefits of prepaid intangible drilling and development costs and there
is a valid business reason.
Wells will be drilled at competitive industry rates to a depth
sufficient to test thoroughly the objective geological formation. The
Partnership will bear its proportionate share of the cost of drilling
and completing or drilling and abandoning the Partnership's wells. In
the Appalachian Basin the Partnership will pay for each well completed
and placed into production an amount equal to the depth of the well in
feet at its deepest penetration as recorded by the drilling contractor
multiplied by $37.39 per foot or, for each well which the Partnership
elects not to complete, an amount equal to $20.60 per foot multiplied by
the depth of the well, as specified above. To the extent that the
Partnership acquires less than 100% of a Prospect, its drilling and
completion costs of that well will be proportionately decreased. In the
event the foregoing rates exceed competitive rates available from other
non-affiliated persons in the area engaged in the business of rendering
or providing comparable services or equipment, the foregoing rates will
be adjusted to an amount equal to that competitive rate. The Managing
General Partner may not benefit by interpositioning itself between the
Partnership and the actual provider of drilling contractor services.
(See "Compensation".)
The footage price includes all ordinary costs of drilling, testing and
completing such well including the cost of a second completion and Frac
where Atlas considers it to be justified and installing gathering lines
and other necessary facilities for the production of natural gas.
Although the following costs are possible, it is not anticipated that
such costs will be incurred, and the footage rate will not include the
cost of completion procedures, equipment or any facilities necessary or
appropriate for the production and sale of oil or other liquids and
equipment or materials (except salt water collection tanks, separators,
siphon string and tubing, which are included) necessary or appropriate
to collect, lift or dispose of liquids for efficient gas production. The
footage rate will also not include the cost of a third completion and
Frac. Such extra costs will be charged at the Operator's standard
charges for services performed directly by it (exclusive of services in
supervision of third party services) or the Operator's invoice costs of
third party services performed and materials and equipment purchased
plus 10% to cover supervisory services and overhead. Atlas expects to
subcontract some of the actual drilling and completion of Partnership
wells to third parties selected by it.
Atlas, as Operator, will determine whether or not to complete each well;
provided that a well may be completed only if Atlas determines in good
faith that there is a reasonable probability of obtaining commercial
quantities of gas. Based upon its past experience, Atlas anticipates
that all Partnership Wells drilled to the Clinton/Medina geological
formation will be required to be completed before a determination can be
made as to the well's productivity. In the event that Atlas determines
that a well should not be completed, the well will be plugged and
abandoned and the footage rate will be adjusted.
Atlas' duties as Operator will include (i) making necessary arrangements
for the drilling and completing of Partnership wells and related
facilities for which it has responsibility under the Drilling and
Operating Agreement; (ii) managing and conducting all field operations
in connection with the drilling, testing, equipping, operation and
production of such wells; (iii) making technical decisions required in
drilling, completing and operating such wells; (iv) maintaining such
wells, equipment and facilities in good working order during the useful
life thereof; and (v) performing necessary accounting and administrative
functions.
During producing operations Atlas, as Operator, will receive a monthly
well supervision fee based upon competitive rates for each producing
well for which it has responsibility under the Drilling and Operating
Agreement. In the Appalachian Basin the well supervision fee will be
$275 for each producing well and will be proportionately reduced to the
extent the Partnership does not acquire 100% of the Working Interest.
This fee may be adjusted on the first day of January of each year
beginning January 1, 1999, by an amount which shall not exceed the
percentage increase since the previous adjustment date in average
earnings of oil and gas industry workers as published by a bureau of the
U.S. Department of Labor. In the event the foregoing rates exceed
competitive rates available from other non-affiliated persons in the
area engaged in the business of rendering or providing comparable
services or equipment, the foregoing rates will be adjusted to an amount
equal to that competitive rate. The Managing General Partner may not
benefit by interpositioning itself between the Partnership and the
actual provider of operator services. In no event shall any
consideration received for operator services be duplicative of any
consideration or reimbursement received pursuant to the Partnership
Agreement. (See "Compensation".)
The well supervision fee covers all normal and regularly recurring
operating expenses for the production, delivery and sale of gas, such as
well tending, routine maintenance and adjustment, reading meters,
recording production, pumping, maintaining appropriate books and
records, preparing reports to the Partnership and to government
agencies, and collecting and disbursing revenues. The well supervision
fees do not include costs and expenses related to the production and
sale of oil, purchase of equipment, materials or third party services,
brine disposal, and rebuilding of access roads, all of which will be
billed at the invoice cost of materials purchased or third party
services performed. The Drilling and Operating Agreement contains a
number of other material provisions which should be carefully reviewed
and understood by prospective Participants. (See "Summary of Drilling
and Operating Agreement".)
In the unlikely event that Atlas, Atlas Energy or an Affiliate is not
the actual operator of the well during producing operations, Atlas, as
Managing General Partner, will review the performance of the third
party operator and the costs and expenses charged by it, and will
monitor the accounting and production records for the Partnership. The
actual operator of the wells will be responsible for performing such
services for each well as are customarily performed to operate a gas
well in the same general area as where such well is located. When Atlas,
Atlas Energy or an Affiliate is not the actual operator of the well
during producing operations it will not receive well supervision fees.
The third party operator will be reimbursed for its direct costs and
will receive either reimbursement of its administrative overhead or well
supervision fees pursuant to an operating agreement. Such fees will be
subject to an annual adjustment for inflation and will be
proportionately reduced to the extent the Partnership does not acquire
100% of the Working Interest.
It is anticipated that the Partnership generally will own 100% of the
Working Interest in each Prospect but the Partnership has reserved the
right to take as little as 25% of the Working Interest. Therefore, it is
possible that the Partnership may engage in joint activities on some of
the Prospects with third parties, which would decrease the Partnership's
Working Interest in the well but increase the diversification of the
Partnership's drilling activities. Any other Working Interest owner in
such Prospect may have a separate agreement with Atlas with respect to
the drilling and operation of a well thereon with differing terms and
conditions from those contained in the Drilling and Operating
Agreement. However, Atlas will be the operator or have the right to
replace the operator of all Partnership Wells and will control all
drilling and producing operations including operations with any third
parties.
SALE OF OIL AND GAS PRODUCTION
IN GENERAL. The Managing General Partner is responsible for selling the
Partnership's gas and oil production. Atlas' policy is to treat all
wells in a given geographic area equally. This reduces certain potential
conflicts of interest among the owners of the various wells, including
the Partnership, concerning to whom and at what price the gas will be
sold. Atlas calculates a weighted average selling price for all of the
gas sold in the geographic area, such as the Mercer County area. To
arrive at the average weighted selling price the money received from the
sale of all of the gas sold to its customers is divided by the volume of
all gas sold from the wells in the area. During 1995, Atlas received an
average selling price of $2.28 per Mcf for gas sold in the Mercer County
area and during 1996 Atlas received an average selling price of $2.58
per Mcf. The average price paid after deducting all expenses, including
transportation expenses, was $2.01 per Mcf in 1995 and $2.29 per Mcf
in 1996. On occasion, Atlas has reduced the amount of production it
normally sells on the spot market until the spot market price increased.
In the Mercer County area Atlas estimates that a portion of the
Partnership's gas will be transported through Atlas' own pipeline system
and sold directly to industrial end-users in the area where the wells
will be drilled. This will generally result in the Partnership receiving
higher prices for the gas than if the gas were transported a farther
distance through interstate pipelines because of increased
transportation charges. The remainder of the Partnership's gas will be
transported through Atlas' pipelines to the interconnection points
maintained with Tennessee Gas Transmission Co., National Fuel Gas Supply
Corporation, National Fuel Gas Distribution Company, East Ohio Natural
Gas Company, and Peoples Natural Gas Company. These delivery points are
utilized by Atlas Gas Marketing, Inc. to service its enduser markets in
the northeast United States which include in excess of 100 customers.
Atlas is currently delivering an average 27,000 MCF of natural gas per
day from the Mercer County area to all of the aforementioned markets and
has the capacity of delivering 33,000 MCF per day from the Mercer County
area. Atlas anticipates that Wheatland Tube Company and Carbide
Graphite will each purchase approximately 10%
- - 15% of the Partnership's gas production in 1998 pursuant to gas
contracts between them and an Affiliate of Atlas, and it is possible
that other purchasers of the Partnership's gas production may account
for 10% or more of the Partnership's gas sales revenues in 1998.
In order to optimize the price it receives for the sale of natural gas,
Atlas markets portions of the gas through long term contracts, short
term contracts and monthly spot sales. The marketing of natural gas
production has been influenced by the availability of certain financial
instruments, such as gas futures contracts, options and swaps which,
when properly utilized as hedge instruments, provide producers or
consumers of gas with the ability to lock in the price which will
ultimately be paid for the future deliveries of gas. Atlas is utilizing
financial instruments to hedge the price risk of a portion of all of its
Programs' gas production, which would include the Partnership. To
assure that the financial instruments will be used solely for hedging
price risks and not for speculative purposes, Atlas has established an
Energy Price Risk Committee comprised of the President, General Counsel,
Chief Financial Officer (chairperson) and Director of Marketing, whose
responsibility will be to ascertain that all financial trading is done
in compliance with hedging policies and procedures. Atlas does not
intend to contract for positions that it cannot offset with actual
production.
TRANSPORTATION OF GAS. One factor in determining the return to the
Partnership is the proximity of the well to the industrial end-user or
to an existing pipeline system or local distribution company. It is
anticipated that Mercer Gas Gathering, Inc., an Affiliate of Atlas, will
transport and compress the natural gas produced by the Partnership into
the various pipelines or directly to industrial end-users. In addition,
Atlas Gas Marketing, Inc., an Affiliate of Atlas, will have the
responsibility to market that portion of gas delivered to the various
interconnection points maintained with the interstate pipelines and
local distribution companies to its 100 customer base. The Partnership
will pay a combined transportation and marketing charge for these
services at a competitive rate, which is currently 29 cents per MCF.
(See "Compensation" and "Management".)
MARKETING OF PRODUCTION FROM WELLS IN OTHER AREAS OF THE UNITED STATES.
In the event any wells are drilled in areas of the United States other
than the Mercer County area, Atlas expects that gas produced from such
wells will be supplied to industrial end-users, local distribution
companies and/or interstate pipelines.
CRUDE OIL. Any crude oil produced from the wells may flow directly into
storage tanks where it will be picked up by the oil company, a common
carrier or pipeline companies acting for the oil company which is
purchasing such crude oil. Therefore, crude oil usually does not present
any transportation problem. Atlas anticipates selling any oil produced
by the wells in the Mercer County area to Quaker State Oil Refining
Company ("Quaker State") in spot sales. Atlas was receiving
approximately $15.50 per barrel in December, 1995, and approximately
$21.50 per barrel in December, 1996, from Quaker State for oil produced
in the Mercer County area. Over the past eight years, the price of oil
has declined from approximately $38 to as low as $10 per barrel. There
can be no assurance as to the price of oil during the term of the
Partnership and the actions of OPEC increase the volatility of the price
of oil.
INTERESTS OF PARTIES
The Managing General Partner, Participants and unaffiliated third
parties (including landowners) share revenues from production of gas
from wells in which the Partnership has an interest. The following chart
expresses such interests in gross revenues derived from the wells based
on 32 of the currently proposed Prospects set forth below in "
Information Regarding Currently Proposed Prospects". In the event the
Partnership acquires less than a 100% Working Interest, the percentages
available to the Partnership will decrease proportionately.
THIRD PARTY ROYALTIES
PARTNERSHIP AND OVERRIDING 87.5 % PARTNERSHIP NET
ENTITY INTEREST ROYALTY INTEREST REVENUE
INTEREST (1)
Managing General Partner 25% Partnership Interest 21.875%
Participants 75% Partnership Interest 65.625%
Third Parties 12.5% Landowner Royalty 12.500%
100.000%
___________________
(1) On three of the currently proposed Prospects the Net Revenue
Interest to the Partnership would be 84.375%, which would reduce the
Participants' interest to 63.281%. The Leases in areas of the Unites
States other than the Mercer County area may also be subject to greater
Overriding Royalty Interests, third party net profits interests, carried
interests, production payments, reversionary interests or other retained
or carried interests.
INSURANCE
Since 1972, Atlas and its Affiliates have been involved in the drilling
of approximately 1,600 wells in Ohio, Pennsylvania and other areas of
the Appalachian Basin and no blow-out, fire or similar hazard has
occurred with respect to any of these wells. Therefore, Atlas and its
Affiliates have not made any insurance claims in Ohio, Pennsylvania and
other areas of the Appalachian Basin with respect to such hazards.
Atlas will obtain and maintain for the benefit of itself and the
Partnership insurance coverage in such amounts, with provisions for such
deductible amounts and for such purposes, as would be carried by a
reasonable, prudent general contractor and operator in accordance with
industry standards. The Partnership will be named as an additional
insured under such policies. In addition, Atlas requires all of its
subcontractors to certify that they have acceptable insurance coverage
for worker's compensation and general, auto and excess liability
coverage. Major subcontractors are required to carry general and auto
liability insurance with a minimum of $1,000,000 combined single limit
for bodily injury and property damage in any one occurrence or accident.
Atlas' current insurance coverage satisfies the following
specifications:
(a) worker's compensation insurance in full compliance with the laws
of the Commonwealth of Pennsylvania and any other applicable state laws;
(b) liability insurance (including automobile) which has a
$1,000,000 combined single limit for bodily injury and property damage
in any one occurrence or accident and in the aggregate; and
(c) excess liability insurance as to bodily injury and property
damage with combined limits of $50,000,000 during drilling operations,
per occurrence or accident and in the aggregate, which includes $250,000
of seepage, pollution and contamination insurance which protects and
defends the insured against property damage or bodily injury claims from
third parties (other than a co-owner of the Working Interest) alleging
seepage, pollution or contamination damage resulting from an accident.
Such excess liability insurance will be in place and effective no later
than the Initial Closing Date.
The excess liability insurance will be for the benefit of the
Partnership and other Programs in which Atlas serves as Managing General
Partner until the Investor General Partners are converted to Limited
Partners, at which time the Partnership will continue to enjoy the
benefit of Atlas' $11,000,000 liability insurance on the same basis as
Atlas and its Affiliates, including other Programs in which Atlas serves
as Managing General Partner. (See "Competition, Markets and
Regulation - State Regulations" and "- Environmental Regulation".)
These policies will have terms, including exclusions, standard for the
oil and gas industry. (See "Risk Factors - General Risks of the Oil and
Gas Business - Drilling Hazards May Be Encountered".) Upon the request
of any prospective Participant, Atlas will provide to such prospective
Participant or his representatives a copy of Atlas' insurance policies.
Atlas will use its best efforts to maintain insurance coverage which
meets or exceeds its current coverage but may ultimately be unsuccessful
in such efforts because such coverage may become unavailable or cost
prohibitive.
The Managing General Partner will notify all Participants at least
thirty days prior to the effective date of any adverse material change
in the Partnership's insurance coverage. If the insurance coverage will
be materially reduced, which is not anticipated, the Investor General
Partners will have the right to convert their Units into Limited Partner
interests prior to such reduction by giving written notice to the
Managing General Partner. (See "Tax Aspects - Limitations on Passive
Activities".)
USE OF CONSULTANTS AND SUBCONTRACTORS
Although not anticipated with respect to producing operations in the
Mercer County area, the Partnership Agreement authorizes the Managing
General Partner to employ and utilize the services of independent
outside consultants and subcontractors. Such persons will normally be
compensated through payment on a per diem or other cash fee basis. Such
services will be charged to the Partnership as a Direct Cost or as a
direct expense pursuant to the Drilling and Operating Agreement,
attached as Exhibit (II) to the Partnership Agreement, and will be in
addition to the unaccountable, fixed payment reimbursement paid to Atlas
and its Affiliates for Administrative Costs, and well supervision fees
paid to Atlas as Operator. (See "Compensation" and "Management".)
INFORMATION REGARDING CURRENTLY PROPOSED PROSPECTS
Set forth below is information relating to Prospects which have been
currently proposed for assignment to the Partnership upon the Offering
Termination Date and from time to time thereafter subject to Atlas'
right to withdraw such Prospects and to substitute other Prospects. The
specified Prospects represent the necessary Prospects if 80% of the
potential maximum Partnership Subscription of $10,000,000 is raised and
the Partnership takes 100% of the Working Interest. Atlas has not
proposed any other Prospects if more than this amount is raised, if the
Partnership takes a lesser Working Interest in the Prospects, if the
Prospects are substituted and/or if Prospects will be drilled in areas
of the United States other than the currently proposed locations.
The assignment of the currently proposed Prospects will be dependent on
the non-materialization of any circumstances occurring which, in Atlas'
opinion, would diminish the relative attractiveness of the Prospects.
Any substituted and/or additional Prospects will meet the same general
criteria for development potential as the currently proposed Prospects;
however, prospective subscribers will not have the opportunity to
evaluate for themselves the relevant geophysical, geological, economic
or other information regarding such Prospects. However, most of the
Partnership's wells will have as their objective the Clinton/Medina
geological formation discussed in the UEDC Geological Report and will be
located in areas where Atlas or its Affiliates have previously conducted
drilling operations. (See "- Acquisition of Leases".)
The purpose of the information regarding the currently proposed
Prospects is to assist prospective subscribers in analyzing and
evaluating the currently proposed Prospects, including production
information for wells in the general area. Atlas believes that
production information with respect to wells in the general area is an
important indicator in evaluating the economic potential of any
Prospect to be developed by the Partnership. However, there can be no
assurance that a well drilled by the Partnership will experience
production comparable to the production experienced by wells in the
surrounding area since the geological conditions in the Clinton/Medina
geological formation can change in a short distance.
Prospective subscribers are cautioned and urged to analyze carefully all
production information for each well offsetting or in the general area
of a specified Prospect and, in the process of doing so, to take the
factors set forth below into consideration.
1. The length of time which the well has been on line and the
period of time for which production information is shown.
2. The impact of "flush" production of a well which usually occurs
in the early period of well operations. This period can vary depending
on the location of the well and the manner in which the well is
operated.
3. Production declines at various rates throughout the life of a
well and decline curves vary depending on the geological location of the
well and the manner in which the well is operated.
4. The production information with respect to some wells is
incomplete and with other wells very limited. The designation "N/A"
means the production was not available to Atlas or if Atlas was the
Operator then the well was not completed or on line as of the date of
the report.
5. It should be noted that production information for wells located
in close proximity to a Prospect tends to be more relevant than
production information for wells located at a great distance from a
Prospect, although from time to time great disparity in well performance
can occur in wells located in close proximity.
6. Consistency in production among wells tends to confirm the
reliability and predictability of such production.
All of the specified Prospects are subject to the factors set forth
below:
1. There are no Overriding Royalty Interests or other burdens in
favor of Atlas or its Affiliates.
2. Atlas or its Affiliates will act as driller and operator for all
the wells. It is anticipated that the Partnership generally will be
transferred 100% of the Working Interest but the Partnership has
reserved the right to take as little as 25% of the Working Interest.
3. Atlas and its Affiliates own acreage in the vicinity of the
Prospects. (See "Conflicts of Interest - Conflicts Involving Acquisition
of Leases".)
4. The Leases are being contributed to the Partnership at Atlas'
Cost of such Lease, unless the Managing General Partner has reason to
believe that Cost is materially more than the fair market value of such
property, in which case the price will not exceed the fair market value.
5. All wells will be drilled through the Clinton/Medina formation
to the top of the Queenston formation. The wells will have no secondary
objectives.
6. All of the wells will be gas wells. See the Production Map for
the location of Atlas' pipeline. Also, see "- Sale of Oil and Gas
Production" concerning a discussion of the marketing arrangements for
the Partnership's gas.
Included for the Prospects is certain information set forth below which
is designed to assist the prospective subscriber in becoming familiar
with the Prospect location.
1. A map of western Pennsylvania and eastern Ohio showing their
counties.
2. Prospect Lease information.
3. A Location and Production Map showing the Prospects and the
wells in the area.
4. Production data.
5. United Energy Development Consultants, Inc.'s geological report.
See "Experts" in the Prospectus.
MAP OF WESTERN PENNSYLVANIA
AND
EASTERN OHIO
PROSPECT LEASE INFORMATION
EXHIBIT A
<TABLE>
<CAPTION>
ATLAS ENERGY FOR THE NINETIES - - PUBLIC #6 LTD
ProspectName County Dated Expires LRI NRI
ORRI
Acres to Partneship
<C> <C> <S> <C> <C> <C> <C>
1. Bentley #1 Mercer 06/10/96 06/10/99 12.50% 87.50%
50
2. Bentley #2 Mercer 06/10/96 06/10/99 12.50% 87.50%
50
3. Burke #1 Mercer 05/02/96 05/02/99 12.50% 87.50%
50
4. Byler #18 Lawrence 10/10/96 10/10/99 12.50% 87.50%
50
5. Byler #19 Lawrence 10/02/96 10/02/99 12.50% 87.50%
50
6. Detweiler #4 Lawrence 07/29/96 07/29/98 12.50% 87.50%
50
7. Ferris #1 Mercer 01/13/97 01/13/2000 12.50% 87.50%
50
8. George #2 Mercer 09/20/94 09/20/97 12.50% 87.50%
50
9. Hissom #2 Mercer 05/23/96 HBP 12.50% 87.50%
50
10. Jenkins #2 Mercer 09/05/95 09/05/98 12.50% 87.50%
50
11. Kaltenbaugh # Mercer 07/24/95 07/24/98 12.50%
84.375%
3.125% 50
12. Kempf #1 Mercer 02/20/97 02/20/2000 12.50% 87.50%
50
13. Kennedy #2 Mercer 08/28/95 08/28/98 12.50% 87.50%
50
14. Kingery #2 Lawrence 05/08/97 05/08/2000 12.50% 87.50%
50
15. McCartney #1 Mercer 02/12/97 02/12/2002 12.50% 87.50%
50
16. McDowell #16 Mercer 10/20/96 HBP 12.50% 87.50%
50
17. McDowell #17 Mercer 10/20/96 HBP 12.50% 87.50%
50
18. McKean #2 Mercer 05/17/97 05/17/2000 12.50% 87.50%
50
19. McKean #3 Mercer 05/17/97 05/17/2000 12.50% 87.50%
50
20. Oakes #3 Mercer 02/21/97 02/21/99 12.50% 87.50%
50
21. Palmer #2 Mercer 06/17/96 06/17/99 12.50% 87.50%
50
22. Piepenhagen #2Mercer 06/10/96 06/10/99 12.50% 87.50%
50
23. Plants #1 Mercer 06/03/93 06/03/98 12.50%
84.375%
3.125% 50
24. Plummer #1 Mercer 07/02/95 07/02/98 12.50% 87.50%
50
25. Rick #1 Mercer 07/30/93 07/30/98 12.50% 87.50%
50
26. Roman #1 Mercer 06/12/95 06/12/98 12.50% 87.50%
50
27. Root #2 Mercer 06/02/97 06/02/2000 12.50% 87.50%
50
28. Shardy #1 Mercer 04/24/95 04/24/98 12.50% 87.50%
50
29. Sines #4 Mercer 05/06/96 05/06/99 12.50% 87.50%
50
30. Stallsmith #1 Mercer 06/02/93 06/02/98 12.50%
84.375%
3.125% 35.01
31. Tenney U. #1 Mercer 06/01/94 06/01/99 12.50% 87.50%
50
32. Wiese #1 Mercer 01/09/97 01/09/2000 12.50% 87.50%
50
33. Whyte #4 Mercer 03/28/96 03/28/99 12.50% 87.50%
50
34. Williams #4 Mercer 08/05/91 08/05/97 12.50% 87.50%
50
35. Winder #3 Mercer 12/12/95 12/12/98 12.50% 87.50%
50
- * 3.125% Overriding Royalty Interest to a third party.
- HBP - Held by Production
</TABLE>
GEOLOGIC EVALUATION
of
ATLAS - ENERGY FOR THE NINETIES - PUBLIC #6 LTD.
DRILLING PROGRAM
Southeastern Mercer Prospect Area,
Pennsylvania
Program proposed by:
ATLAS RESOURCES, INC.
311 Rouser Road
P.O. Box 611
Moon Township, PA 15108
Report submitted by:
UEDC
United Energy Development Consultants, Inc.
404 Pine Villa Dr.
Gibsonia, PA 15044
For:
ATLAS - ENERGY FOR THE NINETIES - PUBLIC #6 LTD.
Drilling Program by:
ATLAS RESOURCES, INC.
311 Rouser Rd.
P.O. Box 611
Moon Township, PA 15108
LOCATION MAP - AREA OF INTEREST
TABLE OF CONTENTS
INVESTIGATION SUMMARY 3
OBJECTIVE 3
AREA OF INVESTIGATION 3
METHODOLOGY 3
SOUTHEASTERN MERCER PROSPECT AREA 3
DRILLING ACTIVITY 3
GEOLOGY 4
STRATIGRAPHY, LITHOLOGY & DEPOSITION 4
RESERVOIR CHARACTERISTICS 6
PRODUCTION CURVE 8
POTENTIAL MARKETS AND PIPELINES 8
STATEMENTS 9
CONCLUSION 9
DISCLAIMER 9
NON-INTEREST 9
INVESTIGATION SUMMARY
OBJECTIVE
The purpose of the following investigation is to evaluate the
geologic feasibility and further development of the Southeastern Mercer
Prospect Area (consisting of Butler, Lawrence, and Mercer Counties) as
proposed by Atlas Resources, Inc.
AREA OF INVESTIGATION
A portion of this prospect area, herein identified as the Atlas-
Energy for the Nineties-Public #6 Ltd. Drilling Program, contains
acreage in Jackson, Coolspring, Deer Creek, Fairview, Lackawannock,
Wilmington, and Mill Creek Townships in Mercer County, Wilmington
Township in Lawrence County. All counties are located in Pennsylvania.
Thirty five (35) drilling prospects designated for this program will be
targeted to produce natural gas from Clinton-Medina Group Reservoirs,
found at an average depth of approximately 5,900 to 6,500 feet beneath
the earth's surface.
METHODOLOGY
The data incorporated into this report was provided by Atlas
Resources, Inc. and the in-house archives of UEDC, Inc. Geological
mapping and the interpretations by Atlas geologists were also examined.
Available "electric" log, completion, and production data on wells
offsetting prospect locations and other "key" wells within and adjacent
to the defined prospect area were utilized to determine productive and
depositional trends.
SOUTHEASTERN MERCER PROSPECT AREA
DRILLING ACTIVITY
The proposed drilling area lies within a region of northwestern
Pennsylvania which has been very active for the past decade in terms of
exploration for, and exploitation of natural gas reserves. Development
within and adjacent to the Southeastern Mercer Prospect Area has
escalated since 1986, with Atlas Resources, Inc. and it's affiliates
drilling over eight hundred (800) wells during this period. Atlas
Resources, Inc. has encountered favorable drilling and production
results while solidifying a strong acreage position, as Atlas Resources,
Inc. continues to identify and extend productive trends. Drilling is
ongoing as of the date of this report with recent wells displaying
favorable initial drilling and completion results. Competitive activity
has begun both south and east of the prospect area, confirming the
Clinton-Medina Group of Lower Silurian age as a viable target for the
further development of economic quantities of natural gas.
GEOLOGY
STRATIGRAPHY, LITHOLOGY & DEPOSITION
Regionally, the Clinton-Medina Group was deposited in tide-
dominated shoreline, deltaic, and shelf environments and is
lithologically comprised of alternating sandstones, siltstones and
shales. Productive sandstones are composed of siliceous to dolomitic
subarkoses, sublitharenites, and quartz arenites. Reservoir quality
sands occur throughout the delta-complex from eastern Ohio through
northwestern Pennsylvania and western New York. The Clinton-Medina
Group, deposited during the Lower Silurian, overlies the Upper
Ordovician age Queenston shale and is capped by the Middle Silurian
Reynales Formation. This dolomitic limestone "cap" is known locally to
drillers as the "Packer Shell".
Stratigraphically, in descending order, the potentially productive
units of the Clinton-Medina Group consist of the: 1) Thorold, 2)
Grimsby, 3) Cabot Head, and 4) Whirlpool members. These stratigraphic
relationships are illustrated in the following diagram:
The Whirlpool is a light gray quartzose sandstone to siltstone
ranging in thickness from five (5) to twenty (20) feet. Average
porosity values for this sand member range from five (5) to ten (10)
percent regionally. Within the area of investigation, porosities in
excess of twelve (12) percent occur within localized trends targeted for
further development.
The Cabot Head is a dark green to black shale, most likely of
marine origin. Within the investigated area a Cabot Head sandstone has
been encountered in numerous wells. This formation has been found to
contribute natural gas when Reservoir characteristics, including
evidence of enhanced permeability, warrant completion. This sand member
is considered a secondary target.
The Grimsby is the thickest sandstone member of the Clinton-Medina
Group. Sand development ranges from ten (10) to forty-five (45) feet
within an interval comprised of fine to very fine, light gray to red
sandstones and siltstones broken up by thin dark gray silty shale
layers. Average porosity values for the Grimsby are approximately six
(6) to (10) percent over the pay interval regionally. Permeability may
be enhanced locally by the presence of naturally occurring micro-
fractures. Future development focuses on established production trends.
The Thorold sandstone is the uppermost producing interval of the
Clinton-Medina sequence. This interbedded ferric sand, silt and shale
interval averages forty (40) feet. Where pay sand development occurs,
porosities are in the typical Clinton-Medina group range of six (6) to
(10) percent. Permeability may be enhanced locally by the presence of
naturally occurring micro-fractures.
RESERVOIR CHARACTERISTICS
Petroleum reservoirs are formed by the presence of an impermeable
barrier trapping natural gas of commercial quantities in a more
permeable medium. In the Clinton-Medina, this occurs either
stratigraphically when a permeable sand containing hydrocarbons
encounters an impermeable shale or when a permeable sand changes
gradually into a non-permeable sand by a cementation process known as
"diagenesis". Thus, this type of trap represents cemented-in
hydrocarbon accumulations.
Electric well logs can be used in conjunction with production to
interpret Reservoir parameters. When sandstones in the Thorold,
Grimsby, Cabot Head or Whirlpool develop porosity in excess of 6%, or a
bulk density of 2.55 or less, the permeability of the reservoir (which
ranges from <0.l to >0.2 mD) can become great enough to allow commercial
production of natural gas. Small, naturally occurring cracks in the
formation, referred to as micro-fractures, can also enhance
permeability. A gamma, bulk density, density porosity and neutron log
suite showing sand development in the Grimsby, Cabot Head and Whirlpool
is illustrated on the following page.
Two other phenomena detected by well logs can occur which are
indicators of enhanced permeability. These indicators used to detect
productive intervals are:
Mudcake buildup across the zone of interest - after loading the
wellbore with brine fluid and circulating, an interval with
enhanced permeability will accept fluid, filtering out the solids
and leaving behind a buildup (or mudcake) on the formation wall.
This is detectable with a caliper log.
Invasion profile - during circulation, a brine that has a high
conductivity (or low resistivity) that is accepted into the
formation (as described above) will change the electrical
conductivity of the reservoir rock near and around the wellbore.
The resistivity will be low nearest to the wellbore and will
increase away from the wellbore. A dual laterolog can be used to
detect this profile created by a permeable zone - it records
resistivity near the wellbore as well as deeper into the formation.
A zone with enhanced permeability will show a separation between
the shallow and deep laterologs, while a zone with little or no
permeability would cause the two resistivity measurements to read
exactly the same. An example follows:
GAMMA RAY LOG RESISTIVITY LOG
PRODUCTION CURVE
A model decline curve for the Southeastern Mercer Prospect Area was
created, based on production histories from over 600 wells in the mature
portion of the field. The percentage of gas recovery per year is
illustrated by the diagram below:
POTENTIAL MARKETS AND PIPELINES
In the area of this drilling program, there are a number of
potential purchasers and transporters of natural gas. These include
Wheatland Tube Company, Tenneco, National Fuel Supply, National Fuel
Distribution and the People's Natural Gas Company.
STATEMENTS
CONCLUSION
UEDC has conducted a geologic feasibility study of the Atlas-Energy
for the Nineties-Public #6 Ltd. Drilling Program, which will consist of
developmental drilling of the Clinton-Medina Group sands in Mercer,
Lawrence and Butler Counties, Pennsylvania. It is the professional
opinion of UEDC that the drilling of wells within this program is
supported by sufficient geologic and engineering data.
DISCLAIMER
For the purpose of this evaluation, UEDC did not visit any
leaseholds or inspect any of the associated production equipment.
Likewise, UEDC has no knowledge as to the validity of title,
liabilities, or corporate matters affecting these properties. UEDC does
not warrant individual well performance.
NON-INTEREST
We hereby confirm that UEDC is an independent consulting firm and
that neither this firm or any of its employees, contract consultants, or
officers has, or is committed to acquire any interest, directly or
indirectly, in Atlas Resources, Inc.; nor is this firm, or any employee,
contract consultant, or officer thereof, otherwise affiliated with Atlas
Resources, Inc. We also confirm that neither the employment of, nor
payment of compensation received by UEDC in connection with this report,
is on a contingent basis.
Respectfully submitted,
UEDC, Inc.
<TABLE>
LOCATION AND PRODUCTION MAP
PRODUCTION DATA
THE PRODUCTION DATA PROVIDED IN THE TABLE BELOW IS NOT INTENDED TO
IMPLY
THAT THE WELLS TO BE DRILLED BY THE PARTNERSHIP WILL HAVE THE SAME
RESULTS,
ALTHOUGH IT IS AN IMPORTANT INDICATOR IN EVALUATING THE ECONOMIC
POTENTIAL OF ANY PROSPECT TO BE DEVELOPED BY THE PARTNERSHIP.
Date: May 31, 1997
<S> <C> <S>
IDNUMBER OPERATOR WELL NAME DATECOMPLT'D MOS ON LINE
TOTALMCF TOTAL OGGERSDEPTH
LATEST 30 DAY PROD.
6100 N/A
21497 Capital Oil & Gas Byler, S. & M. 2 12/02/92 N/AN/A
6210 N/A
21498 Capital Oil & Gas Hostetler, M. & D. 3 10/29/92 N/AN/A
6154 N/A
21121 Capital Oil & Gas Hostetler, M. & D. 1 11/11/90 N/AN/A
6140 N/A
20155 Atlas Resources, Inc. Kurtz #1 10/05/96 510780
6266 1809
20159 Atlas Resources, Inc. Kurtz #2 02/28/97 36915
6235 3195
20157 Atlas Resources, Inc. Hostetler #3 02/20/97 36738
6195 3422
20161 Atlas Resources, Inc. Byler #14 03/07/97 35611
6200 3156
21161 Atlas Resources, Inc. Algeo #1 11/10/90 739013
5737 32520154 Atlas Resources, Inc. Byler #11 02/13/97
37576 6329 3379
21510 Capital Oil & Gas Cyphert C. #1 10/09/92 N/AN/A
6242 N/A20156 Atlas Resources, Inc. Byler #12 11/19/96
515798 6328 368
20158 Atlas Resources, nc. Lowry #1 09/28/96 719928
6243 1432
20727 Atlas Resources, Inc. Smith-Tetrick #1 09/13/85
11348497 5725 252
20640 Atlas Resources, Inc. Tomko #1 11/27/84
11343244 5724 228
20625 Atlas Resources, Inc. Thompson Un. #1 08/13/84
11319160 5768 194
20721 Atlas Resources, Inc. Root Un. #1 08/15/85
11334571 5739 221
22281 Atlas Resources, Inc. Bartholomew #5 02/19/97 310235
5819 4444
22282 Atlas Resources, Inc. Bartholomew #6 09/08/96 815485
5824 1866
21863 Atlas Resources, Inc. Bartholomew #3 01/28/94 3576908
5813 1499
22352 Atlas Resources, Inc. Rueberger Un. #1 02/26/97 11597
5851 1597
21948 Atlas Resources, Inc. Mills #7 08/22/94
32133349 5654 3055
21967 Atlas Resources, Inc. Humes Un. #3 09/19/94
31108508 5630 2321
21966 Atlas Resources, Inc. Humes #2 09/25/94 3183346
5780 1768
21991 Atlas Resources, Inc. Branca Un. #1 10/01/94 3038827
5778 938
21421 Atlas Resources, Inc. Hoagland #1 03/07/92
62130643 5751 901
22011 Atlas Resources, Inc. Hoagland Un. #2 12/11/94 2973184
5890 2510
21451 Atlas Resources, Inc. Firth #2 03/01/92 6362733
5873 600
21407 Atlas Resources, Inc. Firth #1 01/05/92 6317839
5872 82
21599 Atlas Resources, Inc. Diegan #2 10/17/92 5411836
5748 84
22249 Atlas Resources, Inc. Lutes #1 03/23/97 24394
5791 3499
22168 Atlas Resources, Inc. Eperthener Un. #2 02/26/96 1434511
5953 1272
22178 Atlas Resources, Inc. Rabold #1 01/28/96 1624289
5993 782
22179 Atlas Resources, Inc. Thompson #4 01/21/96 1655149
5921 2165
22111 Atlas Resources, Inc. Romain #4 10/20/95
19164177 5906 204
22074 Atlas Resources, Inc. Graham #2 03/28/95 2579105
5916 2526
22308 Atlas Resources, Inc. Kloos #4 01/08/97 513251
5955 3489
22267 Atlas Resources, Inc. Kloos #1 10/31/96 72651
5899 598
22207 Atlas Resources, Inc. Kloos #2 03/11/96 1524849
5882 1324
22348 Atlas Resources, Inc. Vogan #3 03/12/97 23638
5903 2042
22214 Atlas Resources, Inc. Struthers #5 03/18/96
15115063 5849 5254
20699 Atlas Resources, Inc. Struthers #1 07/10/85 701735
5832 0
22313 Atlas Resources, Inc. Rains #1 01/17/97 56806
5944 9852
22254 Atlas Resources, Inc. Struthers #7 08/19/96 83535
5835 413
22250 Atlas Resources, Inc. Oehlbeck Un. #1 07/31/96 Plugged
&Abandoned 5829
22176 Atlas Resources, Inc. Struthers #4 03/06/96 1410306
5957 448
22252 Atlas Resources, Inc. Struthers #6 08/13/96 821851
5921 2813
21484 Atlas Resources, Inc. Struthers Un. #3 02/25/92 Plugged
&Abandoned 5849
21315 Atlas Resources, Inc. Kelso Un. #2 08/11/91 6981766
5786 785
21340 Atlas Resources, Inc. Kelso #1 11/11/91 6646030
5827 445
21307 Atlas Resources, Inc. Marsh #3 09/04/91 6977064
5700 1037
22234 Atlas Resources, Inc. Wasser #2 09/09/96 813331
5754 1415
22279 Atlas Resources, Inc. Kingerski #1 11/06/96 69098
5823 1014
22241 Atlas Resources, Inc. Kingerski #2 01/09/97 57493
5801 1967
21269 Atlas Resources, Inc. Sealand #1 04/08/91 7377010
5858 663
21305 Atlas Resources, Inc. Marsh #1 08/02/91 7029314
5831 200
21312 Atlas Resources, Inc. Marsh #2 09/18/91 6868629
5873 618
21313 Atlas Resources, Inc. Mercer Vo-Tech #2 07/26/91 7033711
5905 419
21394 Atlas Resources, Inc. Marsh Un. #4 11/06/91 6767923
5811 533
21337 Atlas Resources, Inc. Monske #1 08/19/91 6953001
5620 570
20696 Viking Resources Worley #1 07/01/85 N/N/A
5734 N/A
22233 Atlas Resources, Inc. Wasser #1 09/01/96 829341
5823 3923
22359 Atlas Resources, Inc. Hileman #1 04/02/97 Plugged
&Abandoned 5829
22351 Atlas Resources, Inc. Barber #2 03/04/97 23091
5844 2789
22320 Atlas Resources, Inc. Steele #1 01/18/97 47599
5797 1820
22319 Atlas Resources, Inc. Babcock #1 01/26/97 45485
5791 1805
21327 Atlas Resources, Inc. Cresswell #1 08/28/91 6976169
5688 05
22314 Atlas Resources, Inc. Tait #3 02/17/97 38615
5857 3538
22289 Atlas Resources, Inc. Tait #2 10/10/96 Plugged
&Abandoned 5861
22295 Atlas Resources, Inc. Mandell Un. #2 10/02/96 817521
5859 1986
22357 Atlas Resources, Inc. McCullough #10 03/21/97 24458
5882 2642
22294 Atlas Resources, Inc. McCullough #9 10/17/96 720978
5849 3606
22327 Atlas Resources, Inc. Court #1 02/03/97 45929
5919 2006
22270 Atlas Resources, Inc. McCullough #8 08/24/96 814330
5927 1589
22335 Atlas Resources, Inc. Cornelius #4 02/23/97 37587
5951 3457
22248 Atlas Resources, Inc. Corneilus #2 08/02/96 815813
5944 1417
22246 Atlas Resources, Inc. Cornelius #3 07/26/96 822066
5911 1887
22235 Atlas Resources, Inc. Boyer #2 03/24/97 22724
5900 2000
22217 Atlas Resources, Inc. McDowell #8 03/26/96 1459028
5941 2883
22332 Atlas Resources, Inc. Hissom #1 02/03/97 49637
5681 3341
22334 Atlas Resources, Inc. Sines #3 02/10/97 49480
5738 3436
22288 Atlas Resources, Inc. Philson #4 09/16/96 826578
5821 3380
22297 Atlas Resources, Inc. North #1 09/23/96 825744
5838 3566
22355 Atlas Resources, Inc. Morley Un. #1 03/15/97 11875
5743 1875
22346 Atlas Resources, Inc. Clark #5 03/01/97 24745
5787 2683
22220 Petroleum Dev. Corp. Byler #12 02/26/96 N/AN/A
5830 N/A
22195 Vista Resources Coblentz #2 02/17/96 N/AN/A
5706 N/A
22321 Atlas Resources, Inc. Kelly #2 02/23/97 34858
5769 2173
22328 Atlas Resources, Inc. Black #2 02/16/97 37661
5806 2623
22205 Petroleum Dev. Corp. Kacir #1 03/04/96 N/AN/A
5832 N/A
22242 Atlas Resources, Inc. Jenkins #1 07/11/96 818721
5949 2454
22247 Atlas Resources, Inc. Taylor #2 01/18/97 41927
5932 577
22236 Atlas Resources, Inc. Taylor #1 06/27/96 819641
5992 2480
22356 Atlas Resources, Inc. McDowell #14 03/12/97 21920
5949 1273
22255 Atlas Resources, Inc. McDowell #9 08/07/96 821580
5821 2691
22256 Atlas Resources, Inc. Gildersleve Un. #1 07/25/96 87801
5978 648
22216 Atlas Resources, Inc. Baun Un. #3 07/03/96 817936
5992 1747
22238 Atlas Resources, Inc. Williams #5 08/20/96 88605
5942 926
22251 Atlas Resources, Inc. Morrow Un. #1 07/18/96 87149
5936 845
22271 Atlas Resources, Inc. Gatewood #1 08/27/96 87787
5963 659
22231 Atlas Resources, Inc. Hall #1 01/11/97 54839
5965 1055
22226 Atlas Resources, Inc. Baun #2 03/25/96 1415865
5945 780
22152 Atlas Resources, Inc. Irwin #2 03/03/96 1515986
6057 761
22316 Atlas Resources, Inc. Peterka #2 02/01/97 2918
6010 705
22245 Atlas Resources, Inc. Peterka Un. #1 08/14/96 85189
5985 570
22305 Atlas Resources, Inc. Vernam #1 01/25/97 42745
5941 514
22333 Atlas Resources, Inc. Dye #1 02/07/97 45430
5995 1385
22330 Atlas Resources, Inc. McCullough #11 01/27/97 49292
5897 3114
22350 Atlas Resources, Inc. Mong #1 03/07/97 22582
5873 2365
22129 Atlas Resources, Inc. Rabold #4 10/29/95 1633623
5838 1175
22180 Atlas Resources, Inc. Philson #3 01/28/96 1619440
5948 649
22123 Atlas Resources, Inc. Philson #2 11/21/95 1669333
5887 2356
22127 Atlas Resources, Inc. Eagle #1 08/30/95 1948593
5938 1757
22121 Atlas Resources, Inc. Duffola Un. #1 09/04/95 1939937
5929 1185
22172 Atlas Resources, Inc. Irwin #1 01/24/96 1513945
5965 620
22151 Atlas Resources, Inc. Polick #3 02/12/96 1522265
5969 1027
22156 Atlas Resources, Inc. Kalansky #1 02/18/96 1523141
5971 950
22213 Atlas Resources, Inc. Hamilton #3 03/16/96 1415536
5971 590
22329 Atlas Resources, Inc. Andrews #1 03/27/97 1733
5687 733
21386 Cabot Oil & Gas Mwry Ralph E. 11/14/91 DryHole
5883
22360 Atlas Resources, Inc. Winger #1 03/21/97 12503
5743 2503
22299 Atlas Resources, Inc. Burnette #1 10/18/96 719294
5725 3703
22296 Atlas Resources, Inc. Cousins Un. #3 11/02/96 613303
5476 2469
22312 Vista Resources MQuiston #2-C 02/25/97 N/AN/A
5390 N/A
22315 Vista Resources McQuiston #1-C 01/11/97 N/AN/A
5300 N/A
22326 Vista Resources Miller Un. #2 03/05/97 N/AN/A
5367 N/A
22303 Atlas Resources, Inc. Fairlamb Un. #1 11/10/96 612472
5432 2532
22218 Vista Resources Sprinkle Un. #3 09/16/96 N/AN/A
5500 N/A
22259 Vista Resources Sprinkle Un. #2 09/07/96 N/AN/A
5500 N/A
22260 Vista Resources Sprinkle #1 01/27/97 N/AN/A
5411 N/A
22325 Vista Resources Miller Un. #1 02/05/97 N/AN/A
5375 N/A
</TABLE>
=======================================================================
GEOLOGICAL REPORT
FOR THE
CURRENTLY PROPOSED PROSPECTS
COMPETITION, MARKETS AND REGULATION
COMPETITION
There are many companies, partnerships and individuals engaged in
natural gas exploration, development and operations in the areas where
the Partnership is expected to conduct its activities. The industry is
highly competitive in all of its phases, including acquiring suitable
properties for development and the marketing of natural gas. The
Partnership will be competing with other companies, and the sale of the
production from the wells in the Mercer County area will compete with
the sale of production from the other wells that have already been
drilled or are being operated by Atlas in the area. However, to reduce
and/or eliminate this conflict of interest it is Atlas' policy to treat
all wells in a geographic area equally as to pipeline access and access
to Atlas' gas supply agreements. (See "Proposed Activities - Sale of Oil
and Gas Production".)
Current economic conditions indicate that the costs of exploration and
development are increasing gradually; however, the oil and gas industry
historically has experienced periods of rapid cost increases from time
to time.
MARKETING
Natural gas and oil, if any, produced by the wells developed by the
Partnership must be marketed in order for the Participants to realize
revenues from such production. In recent years natural gas and oil
prices have been volatile.
The marketing of natural gas and oil production, if any, will be
affected by numerous factors beyond the control of the Partnership and
the effect of which cannot be accurately predicted. These factors
include the availability and proximity of adequate pipeline or other
transportation facilities; the amount of domestic production and foreign
imports of oil and gas; competition from other energy sources such as
coal and nuclear energy; local, state and federal regulations regarding
production and the cost of complying with applicable environmental
regulations; and fluctuating seasonal supply and demand. For example,
the demand for natural gas is greater in the winter months than in the
summer months, which is reflected in a higher spot market price paid for
such gas. Also, increased imports of oil and natural gas have occurred
and are expected to continue. The free trade agreement between Canada
and the United States has eased restrictions on imports of Canadian gas
to the United States. Additionally, the passage in November, 1993, of
the North American Free Trade Agreement ("NAFTA") will have some impact
on the American gas industry by eliminating trade and investment
barriers in the United States, Canada and Mexico. In the past the
reduced demand for natural gas and/or an excess supply of gas has
resulted in a lower price paid for the gas. It has also resulted in some
purchasers curtailing or restricting their purchases of natural gas,
renegotiating existing contracts to reduce both takeor-pay levels and
the price paid for delivered gas, and other difficulties in the
marketing of production. (See "Proposed Activities - Sale of Oil and Gas
Production".)
The Federal Energy Regulatory Commission ("FERC") has sought to promote
greater competition in natural gas markets by encouraging open access
transportation by interstate pipelines, with the goal of expanding
opportunities for producers to contract directly with local distribution
companies and end-users. FERC Order No. 500 affects the transportation
and marketability of natural gas. Traditionally, natural gas has been
sold by producers to pipeline companies, which then resold the gas to
end-users. FERC Order No. 500 alters this market structure by requiring
interstate pipelines that transport gas for others to provide
transportation service to producers, distributors and all other shippers
of natural gas on a nondiscriminatory, "firstcome, first-served" basis
("open access transportation"), so that producers and other shippers can
sell natural gas directly to endusers. FERC Order No. 500 contains
additional provisions intended to promote greater competition in natural
gas markets. FERC Order 636 which became effective May 18, 1992,
requires gas pipeline companies to, among other things, separate their
sales services from their transportation services; and provide an open
access transportation service that is comparable in quality for all gas
suppliers. The premise behind FERC Order 636 was that the gas pipeline
companies had an unfair advantage over other gas suppliers because they
could bundle
their sales and transportation services together. FERC Order 636 is
designed to create a regulatory environment in which no gas seller has a
competitive advantage over another gas seller because it also provides
transportation services. It is difficult to assess the effect of the
order on the Partnership.
The Clean Air Act Amendments of 1990 contain incentives for the future
development of "clean alternative fuel," which includes natural gas and
liquefied petroleum gas for "clean-fuel vehicles". Atlas believes the
amendments ultimately will have a beneficial effect on natural gas
markets and prices.
STATE REGULATIONS
Oil and gas operations are regulated in Pennsylvania by the Department
of Environmental Resources, and any other states where Partnership Wells
may be situated impose a comprehensive statutory and regulatory scheme
with respect to oil and gas operations. Among other things, such
regulations involve (a) new well permit and well registration
requirements, procedures and fees, (b) minimum well spacing
requirements, (c) restrictions on well locations and underground gas
storage, (d) certain well site restoration, groundwater protection and
safety measures, (e) landowner notification requirements, (f) certain
bonding or other security measures, (g) various reporting requirements,
(h) well plugging standards and procedures, and (i) broad enforcement
powers.
These state regulatory agencies have been granted broad regulatory and
enforcement powers which are likely to create additional financial and
operational burdens on oil and gas operations like those of the
Partnership in such states. Pennsylvania and the other states also have
in place other pollution and environmental control laws which have
become increasingly burdensome in recent years. Enforcement efforts with
respect to oil and gas operations have recently increased and it can be
anticipated that such regulation will expand and have a greater impact
on future oil and gas operations.
ENVIRONMENTAL REGULATION
Various federal, state and local laws covering the discharge of
materials into the environment, or otherwise relating to the protection
of the environment, may affect the Partnership's operations and costs.
The Partnership may generally be liable for cleanup costs to the United
States Government under the Federal Clean Water Act for oil or hazardous
substance pollution and under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA" or Superfund) for
hazardous substance contamination. Such liability is unlimited in cases
of willful negligence or misconduct, and there is no limit on liability
for environmental cleanup costs or damages with respect to claims by the
state or private persons or entities. In addition, the Environmental
Protection Agency will require the Partnership to prepare and implement
spill prevention control and countermeasure plans relating to the
possible discharge of oil into navigable waters and will further require
permits to authorize the discharge of pollutants into navigable waters.
State and local permits or approvals will also be needed with respect to
wastewater discharges and air pollutant emissions.
Violations of environment-related Lease conditions or environmental
permits can result in substantial civil and criminal penalties as well
as potential court injunctions curtailing operations. Such enforcement
liabilities can result from either governmental or citizen prosecution.
Compliance with these statutes and regulations may cause delays in
producing natural gas and oil from the wells and may substantially
increase the cost of producing such natural gas and oil. However, such
laws and regulations are constantly being revised and changed, and Atlas
is unable to predict the ultimate costs of complying with present and
future environmental laws and regulations. See "Risk Factors Special
Risks of the Partnership - Unlimited Liability of Investor General
Partners" and "Proposed Activities - Insurance," concerning the Managing
General Partner's inability to obtain insurance to protect against
environmental claims.
CRUDE OIL REGULATION
The price of oil is not regulated and is subject only to supply, demand,
competitive factors, the gravity of the crude oil, sulfur content
differentials and other factors. Certain federal reporting requirements
are still in effect under U. S. Department of Energy regulations.
FEDERAL GAS REGULATION
The sale of natural gas is subject to regulation of production and
transportation by governmental regulatory agencies. Generally, the
regulatory agency in the state where a producing natural gas well is
located supervises production activities and the transportation of
natural gas sold into intrastate markets. FERC regulates the interstate
transportation of natural gas and pricing of natural gas sold for resale
interstate; and under the Natural Gas Policy Act of 1978 ("NGPA"), the
price of intrastate gas. However, price controls for natural gas
production from new wells were deregulated on December 31, 1992. Such
deregulated gas production may be sold at market prices determined by
supply, demand, BTU content, pressure, location of the wells, and other
factors. The Managing General Partner anticipates that all of the gas
produced by the Partnership Wells will be price decontrolled gas and
will be sold at fair market value.
PROPOSED REGULATION
From time to time there are a number of proposals considered in Congress
and in the legislatures and agencies of various states that if enacted
would significantly and adversely affect the oil and natural gas
industry. Such proposals involve, among other things, the imposition of
new taxes on natural gas and limiting the disposal of waste water from
wells. At the present time, it is impossible to accurately predict what
proposals, if any, will be enacted by Congress or the legislatures and
agencies of various states and what effect any proposals which are
enacted will have on the activities of the Partnership.
PARTICIPATION IN COSTS AND REVENUES
IN GENERAL
A tabular summary of the following discussion appears below. Please
refer to "Definitions" for a description of the items of revenue and
cost included in the terms used herein.
COSTS
1. ORGANIZATION AND OFFERING COSTS. Organization and Offering Costs
will be allocated and charged 100% to the Managing General Partner.
Notwithstanding, Organization and Offering Costs in excess of 15% of the
Partnership Subscription will be paid by the Managing General Partner,
without recourse to the Partnership, and the Managing General Partner
will not be credited with such amounts towards its required Capital
Contribution.
2. LEASE COSTS. The Leases will be contributed to the Partnership
by the Managing General Partner at its Cost, unless the Managing General
Partner has cause to believe that Cost is materially more than fair
market value, in which case the credit for such contribution will be
made at a price not in excess of fair market value.
3. INTANGIBLE DRILLING COSTS AND TANGIBLE DRILLING COSTS.
Intangible Drilling Costs will be allocated and charged 100% to the
Participants. Tangible Costs will be allocated and charged 14% to the
Managing General Partner and 86% to the Participants. Intangible
Drilling Costs and the Participants' share of Tangible Costs of a well
or wells to be drilled and completed with the proceeds of a Partnership
closing will be charged 100% to the Participants who are admitted to the
Partnership in such closing and will not be reallocated to take into
account other Partnership closings.
4. OPERATING COSTS, DIRECT COSTS, ADMINISTRATIVE COSTS AND ALL
OTHER COSTS. Operating Costs, Direct Costs, Administrative Costs and all
other Partnership costs not specifically allocated will be allocated and
charged 75% to the Participants and 25% to the Managing General Partner.
However, in the event Atlas has to subordinate a part
of its Partnership revenues in an amount up to 10% of the Partnership
Net Production Revenues, Operating Costs, Direct Costs, Administrative
Costs and all other Partnership costs not specifically allocated will be
charged to the parties in the same ratio as the related production
revenues are being credited. (See "- Subordination of Portion of
Managing General Partner's Net Revenue Share," below.)
In addition, the Managing General Partner's aggregate Capital
Contributions to the Partnership (including credit for the cost of the
Leases contributed) will not be less than 15% of all Capital
Contributions to the Partnership. Any payments by the Managing General
Partner in excess of the other costs charged to it under the Partnership
Agreement will be used to pay Partnership costs which would otherwise be
charged to the Participants. Such Capital Contributions must be paid by
the Managing General Partner at the time such costs are required to be
paid by the Partnership, but, in no event, later than December 31, 1998.
REVENUES
1. PROCEEDS FROM THE SALE OF LEASES. If the Partners' Capital
Accounts are adjusted under the Partnership Agreement to reflect the
simulated depletion of an oil or gas property of the Partnership, the
portion of the total amount realized by the Partnership upon the taxable
disposition of such property that represents recovery of its simulated
tax basis therein is allocated to the Partners in the same proportion as
the aggregate adjusted tax basis of such property was allocated to such
Partners (or their predecessors in interest). If the Partners' Capital
Accounts are adjusted under the Partnership Agreement to reflect the
actual depletion of an oil or gas property of the Partnership, the
portion of the total amount realized by the Partnership upon the taxable
disposition of such property that equals the Partners' aggregate
remaining adjusted tax basis therein is allocated to the Partners in
proportion to their respective remaining adjusted tax bases in such
property. In addition, proceeds will be allocated to Atlas to the extent
of the pre-contribution appreciation in value of such property, if any.
Any excess will be credited to the parties in the ratio in which oil and
gas production revenues of the Partnership are credited as provided in
4, below.
2. INTEREST PROCEEDS. Interest earned on Agreed Subscriptions up
until the Offering Termination Date will be credited to the accounts of
the respective subscribers and paid approximately eight weeks after the
Offering Termination Date. If a subscription is refunded any interest
allocated thereto will also be refunded. After the Offering Termination
Date and until proceeds from the offering are invested in the
Partnership's oil and gas operations any interest income from temporary
investments will be allocated pro rata to the Participants providing
such Agreed Subscription. All other interest income, including interest
earned on the deposit of production revenues, will be credited as
provided in 4, below.
3. EQUIPMENT PROCEEDS. Proceeds from the sale or other disposition
of equipment will be credited to the parties charged with the costs of
such equipment in the ratio in which such costs were charged.
4. PRODUCTION REVENUES. All other revenues of the Partnership,
including production revenues, will be credited 75% to the Participants
and 25% to the Managing General Partner. (See "- Subordination of
Portion of Managing General Partner's Net Revenue Share," below and "Tax
Aspects".)
5. LIQUIDATION PROCEEDS. Upon liquidation of the Partnership each
Participant will receive his Distribution Interest in the Partnership.
"Distribution Interest" means an undivided interest in the assets of the
Partnership after payments to creditors of the Partnership or the
creation of a reasonable reserve therefor, in the ratio the positive
balance of a party's Capital Account bears to the aggregate positive
balance of the Capital Accounts of all of the parties determined after
taking into account all Capital Account adjustments for the taxable year
during which liquidation occurs (other than those made pursuant to
liquidating distributions or restoration of deficit Capital Account
balances); provided, however, after the Capital Accounts of all of the
parties have been reduced to zero, such interest in the remaining
assets of the Partnership will equal a party's interest in the related
revenues of the Partnership as set forth in 5.01 and its subsections of
the Partnership Agreement.
Any in kind property distributions to the Participants must be made to
a liquidating trust or similar entity for the benefit of the
Participants, unless at the time of the distribution:
(a) the Managing General Partner offers the individual Participants
the election of receiving in kind property distributions and the
Participants accept such offer after being advised of the risks
associated with such direct ownership; or
(b) there are alternative arrangements in place which assure the
Participants that they will not, at any time, be responsible for the
operation or disposition of the Partnership properties.
It will be presumed that a Participant has refused such consent if the
Managing General Partner has not received such consent within thirty
days after the Managing General Partner mailed the request for such
consent. Any Partnership asset which would otherwise be distributed in
kind to a Participant, but for the failure or refusal of such
Participant to give his written consent to such distribution, may
instead be sold by the Managing General Partner at the best price
reasonably obtainable from an independent third party who is not an
Affiliate of the Managing General Partner.
SUBORDINATION OF PORTION OF MANAGING GENERAL PARTNER'S NET REVENUE SHARE
The Partnership is structured to provide preferred cash distributions to
the Participants equal to a minimum of 10% of their Agreed Subscriptions
in each of the first five twelve-month periods of Partnership
operations. To help insure the Participants achieve this investment
feature, Atlas will subordinate a part of its Partnership revenues in an
amount up to 10% of the Partnership Net Production Revenues (net of the
related costs as set forth in "- Costs - 4. Operating Costs, Direct
Costs, Administrative Costs and All Other Costs," above) to the receipt
by Participants of cash distributions from the Partnership equal to 10%
of their Agreed Subscriptions in each of the first five twelve-month
periods of Partnership operations. (Partnership Net Production Revenues
means gross revenues after deduction of the related Operating Costs,
Direct Costs, Administrative Costs and all other Partnership costs not
specifically allocated.) The subordination will be determined
commencing with the first distribution of revenues to the Participants
by debiting or crediting current period Partnership revenues to the
Managing General Partner as may be necessary to provide such
distributions to the Participants.
See 5.01(b)(4) of the Partnership Agreement for details on the
subordination.
Atlas anticipates that the Participants will benefit from the
subordination if the price of gas received by the Partnership and/or the
results of the Partnership's drilling activities are unable to provide
the required return to the Participants. Notwithstanding, if the wells
produce gas in small amounts and/or the price of gas declines then even
with subordination the cash flow to the Participants may be very small
and they may not receive a return of their entire investment. (See
"Risk Factors - Special Risks of the Partnership Borrowings by the
Managing General Partner Could Reduce Funds Available for Its
Subordination Obligation".)
PARTICIPATION IN COSTS AND REVENUES
MANAGING
GENERAL
PARTNER (1) PARTICIPANTS (1)
PARTNERSHIP COSTS
Organization and Offering Costs (2) 100% 0%
Lease Costs (3) 100% 0%
Intangible Drilling Costs (4) 0% 100%
Tangible Costs 14% 86%
Operating Costs, Administrative Costs, Direct Costs and All
Other Costs (5)(6)(10) 25% 75%
PARTNERSHIP REVENUES
Interest Income (7) (7)
Equipment Proceeds (8) (8)
All other Revenues including Production Revenues (5)(9)(11) 25%
75%
PARTICIPATION IN DEDUCTIONS
Intangible Drilling Costs 0% 100%
Depreciation 14% 86%
Depletion Allowances 25% 75%
(1) Atlas and its Affiliates have the option of subscribing for up to
10% of the Units, which will not be applied towards the minimum
Partnership Subscription. To the extent of such optional subscriptions
the Managing General Partner and its Affiliates are deemed Participants
in the Partnership. (See "Terms of the Offering".)
(2) In the event the Managing General Partner pays any Organization and
Offering Costs in excess of 15% of the Partnership Subscription, such
payments will be without recourse to the Partnership, and the Managing
General Partner will not be credited with such amounts towards its
required Capital Contribution.
(3) Leases will be contributed to the Partnership by the Managing
General Partner at its Cost, unless the Managing General Partner has
cause to believe that Cost is materially more than fair market value, in
which case the credit for such contribution will be made at a price not
in excess of fair market value, and applied towards its required Capital
Contribution to the Partnership.
(4) More specifically, Intangible Drilling Costs and the Participants'
share of Tangible Costs of a well or wells to be drilled and completed
with the proceeds of a Partnership closing will be charged 100% to the
Participants who are admitted to the Partnership in such closing and
will not be reallocated to take into account other Partnership closings.
(5) In the event Atlas has to subordinate a part of its Partnership
revenues in an amount up to 10% of Partnership Net Production Revenues,
then Operating Costs, Direct Costs, Administrative Costs and all other
Partnership costs not specifically allocated will be charged to the
parties in the same ratio as the related production revenues are being
credited. (See "- Subordination of a Portion of Managing General
Partner's Net Revenue Share," above and "Risk Factors - Special Risks of
the Partnership - Borrowings by the Managing General Partner Could
Reduce Funds Available for Its Subordination Obligation".)
(6) Includes any other Partnership costs which are not otherwise
specifically allocated.
(7) Interest earned on Agreed Subscriptions up until the Offering
Termination Date will be credited to the accounts of the respective
subscribers and paid approximately eight weeks after the Offering
Termination Date. If a subscription is refunded any interest allocable
thereto will also be refunded. After the Offering Termination Date and
until proceeds from the offering are invested in the Partnership's oil
and gas operations any interest income from temporary investments will
be allocated pro rata to the Participants providing such Agreed
Subscription. All other interest income, including interest earned on
the deposit of operating revenues, will be credited as oil and gas
production revenues are credited.
(8) Proceeds from the sale or other disposition of equipment will be
credited to the parties charged with the costs of such equipment in the
ratio in which such costs were charged.
(9) (See "- Revenues - Proceeds from the Sale of Leases" and "
Subordination of Portion of Managing General Partner's Net Revenue
Share," above and "- Allocation and Adjustment Among Participants,"
below.)
(10) The Managing General Partner's aggregate Capital Contributions to
the Partnership (including Leases contributed) will not be less than
15% of all Capital Contributions to the Partnership. Any payments by the
Managing General Partner in excess of the other costs charged to it
under the Partnership Agreement will be used to pay Partnership costs
which would otherwise be charged to the Participants. Such Capital
Contributions must be paid by the Managing General Partner at the time
such costs are required to be paid by the Partnership, but, in no event,
later than December 31, 1998.
(11) The revenues from all Partnership Wells will be commingled, so
regardless of when a Participant subscribes he will share in the
revenues from all wells on the same basis as the other Participants.
Sales proceeds of Leases are subject to special provisions. (See "
Revenues - Proceeds from the Sale of Leases", above.)
ALLOCATION AND ADJUSTMENT AMONG PARTICIPANTS
The Participants' share of revenues, gains, credits, costs, expenses,
losses and other charges and liabilities will be charged and credited,
as among them, pro rata in accordance with their respective Agreed
Subscriptions taking into account any Investor General Partner's status
as a defaulting Investor General Partner. (See "Summary of the Offering
- - Actions to be Taken by Managing General Partner to Reduce Risks of
Additional Payments by Investor General Partners" and "Capitalization
and Source of Funds and Use of Proceeds".)
Subscription proceeds from each Partnership closing generally will be
used to drill different wells. However, production revenues from all
Partnership Wells will be commingled and the Participants' share of such
revenues will be allocated among all Participants in accordance with
their Agreed Subscriptions regardless of which wells were paid for by
the respective Participants. (See 5.01 of the Partnership Agreement.)
DISTRIBUTIONS
The Managing General Partner will review the accounts of the Partnership
at least quarterly to determine whether cash distributions are
appropriate and the amount to be distributed, if any. The Partnership
will distribute funds to the Managing General Partner and the
Participants allocated to their accounts which the Managing General
Partner deems unnecessary to be retained by the Partnership. In no
event, however, will funds be advanced or borrowed for purposes of
distributions, if the amount of such distributions would exceed the
Partnership's accrued and received revenues for the previous four
quarters, less paid and accrued Operating Costs with respect to such
revenues. The determination of such revenues and costs shall be made in
accordance with generally accepted accounting principles, consistently
applied. Cash distributions from the Partnership to the Managing General
Partner shall only be made in conjunction with distributions to
Participants and only out of funds properly allocated to the Managing
General Partner's account. (See "Summary of Drilling and Operating
Agreement.")
TAX ASPECTS
SUMMARY OF TAX OPINION
The Managing General Partner has received the tax opinion of Special
Counsel, Kunzman & Bollinger, Inc., Oklahoma City, Oklahoma, which is
included as Exhibit (8) to the Registration Statement. While Special
Counsel has prepared this section of the Prospectus entitled "Tax
Aspects," the opinion of Special Counsel will be limited to those
opinions set forth in its Tax Opinion which are summarized below. The
Tax Opinion represents only Special Counsel's best legal judgment, and
has no binding effect or official status. No assurance can be given that
the conclusions expressed in the opinion would be upheld by a court if
challenged by the IRS. Such tax opinion is based upon Special Counsel's
review of the Registration Statement for Atlas-Energy for the
Nineties-Public #6 Ltd., corporate records, certificates, agreements,
instruments and other documents, existing statutes, rulings and
regulations (which are subject to change and could result in different
tax consequences), and certain representations from Atlas. Included
among such representations are the following:
(1) The Partnership Agreement will be duly executed and recorded.
(2) No election will be made for the Partnership to be excluded from
the application of the partnership provisions of the Code or classified
as a corporation for tax purposes.
(3) The Partnership will own record or legal title to the Working
Interest in all of its Prospects.
(4) The respective amounts that will be paid to Atlas or its Affiliates
pursuant to the Partnership Agreement and the Drilling and Operating
Agreement are amounts that would ordinarily be paid for similar services
in similar transactions between Persons having no affiliation and
dealing with each other "at arms' length."
(5) The Partnership will elect to deduct currently all intangible
drilling and development costs.
(6) The Partnership will have a calendar year taxable year.
(7) The Drilling and Operating Agreement and any amendments thereto
entered into by and between Atlas and the Partnership will be duly
executed and will govern the drilling and, if warranted, the completion
and operation of the wells in accordance with its terms.
(8) Based upon Atlas' review of its previous drilling programs for the
past several years and upon the intended operations of the Partnership,
Atlas reasonably believes that the aggregate deductions, including
depletion deductions, and 350% of the aggregate credits, if any, which
will be claimed by Atlas and the Participants, will not during the first
five tax years following the funding of the Partnership exceed twice the
amounts invested by Atlas and the Participants, respectively. (9) The
Investor General Partner Units will not be converted to Limited Partner
interests before substantially all of the Partnership Wells have been
drilled and completed.
(10) The Units will not be traded on an established securities market.
In rendering its opinions, Special Counsel has further assumed that (1)
each of the Participants has an objective to carry on the business of
the Partnership for profit; (2) any amount borrowed by a Participant and
contributed to the Partnership will not be borrowed from a Person who
has an interest in the Partnership (other than as a creditor) or a
related person, as defined in 465 of the Code, to a person (other than
the Participant) having such interest and such Participant will be
severally, primarily, and personally liable for such amount, and (3) no
Participant will have protected himself from loss for amounts
contributed to the Partnership through nonrecourse financing,
guarantees, stop loss agreements or other similar arrangements.
Special Counsel believes that its opinion letter addresses all material
federal income tax issues associated with an investment in the Units by
an individual Participant who is a resident citizen of the United
States. Special Counsel considers material those issues which would
affect significantly a Participant's deductions, credits or losses
arising from his investment in the Units and with respect to which,
under present law, there is a reasonable possibility of challenge by the
IRS, or those issues which are expected to be of fundamental importance
to a Participant but as to which a challenge by the IRS is unlikely. The
issues which involve a reasonable possibility of challenge by the IRS
have not been definitely resolved by statute, rulings or regulations, as
interpreted by judicial or administrative bodies. Subject to the
foregoing, however, in Special Counsel's opinion it is more likely than
not that the following tax treatment will be upheld if challenged by the
IRS and litigated.
PARTNERSHIP CLASSIFICATION. The Partnership will be classified as a
partnership for federal income tax purposes, and not as an association
taxable as a corporation; the Partnership, as such, will not pay any
federal income taxes; and all items of income, gain, loss, deduction,
and credit of the Partnership will be reportable by the Partners in the
Partnership. (See "- Partnership Classification".)
INTANGIBLE DRILLING AND DEVELOPMENT COSTS. Intangible drilling and
development costs ("Intangible Drilling Costs") paid by the Partnership
under the terms of bona fide drilling contracts for the Partnership's
wells will be deductible in the taxable year in which the payments are
made and the drilling services are rendered, assuming such amounts are
fair and reasonable consideration and subject to certain restrictions
summarized below (including basis and "at risk" limitations and the
passive activity loss limitation with respect to the Limited Partners).
(See "- Intangible Drilling and Development Costs" and "- Drilling
Contracts".)
PREPAYMENTS OF INTANGIBLE DRILLING AND DEVELOPMENT COSTS. Depending
primarily on when the Partnership Subscription is received, it is
anticipated that the Partnership will prepay in 1997 most, if not all,
of the intangible drilling and development costs related to Partnership
Wells the drilling of which will be commenced in 1998. Assuming that
such amounts are fair and reasonable, and based in part on the factual
assumptions set forth below, in our opinion such prepayments of
intangible drilling and development costs will be deductible for the
1997 taxable year even though all Working Interest owners in the well
may not be required to prepay such amounts, subject to certain
restrictions summarized in "Tax Aspects" (including basis and "at risk"
limitations, and the passive activity loss limitation with respect to
the Limited Partners). (See "- Drilling Contracts," below.)
The foregoing opinion is based in part on the assumptions that: (1) such
costs will be required to be prepaid in 1997 for specified wells
pursuant to the Drilling and Operating Agreement; (2) pursuant to the
Drilling and Operating Agreement the wells are required to be, and
actually are, Spudded on or before March 31, 1998, and continuously
drilled thereafter until completed, if warranted, or abandoned; and (3)
the required prepayments are not refundable to the Partnership and any
excess prepayments are applied to intangible drilling and development
costs of substitute wells.
NOT A PUBLICLY TRADED PARTNERSHIP. Assuming that no more than 10% of the
Units are transferred in any taxable year of the Partnership (other than
in private transfers described in Treas. Reg. 1.7704-1(e), it is more
likely than not that the Partnership will not be treated as a "publicly
traded partnership" under the Code. (See "- Limitations on Passive
Activities".)
PASSIVE ACTIVITY CLASSIFICATION. Oil and gas production income generated
by the Partnership's oil and gas properties held as Working Interests,
together with gain, if any, from the disposition of such properties and
allocable to Limited Partners who are individuals, estates, trusts,
closely held corporations or personal service corporations more likely
than not will be characterized as income from a passive activity which
may be offset by passive activity losses. Income or gain attributable to
investments of working capital of the Partnership will be characterized
as portfolio income, which cannot be offset by passive activity losses.
To the extent the Partnership's oil and gas properties are held as
Working Interests, it is more likely than not that the passive activity
limitations on losses under 469
will not be applicable to Investor General Partners prior to the
conversion of Investor General Partner Units to Limited Partner
interests. (See "- Limitations on Passive Activities".)
TAX BASIS OF PARTICIPANT'S INTEREST. Each Participant's adjusted tax
basis in his Partnership interest will be increased by his total Agreed
Subscription. (See "- Tax Basis of Participants' Interests".)
AT RISK LIMITATION ON LOSSES. Each Participant initially will be "at
risk" to the full extent of his Agreed Subscription. (See "- `At Risk'
Limitation For Losses".)
DEPLETION ALLOWANCE, The greater of cost depletion or percentage
depletion will be available to qualified Participants as a current
deduction against Partnership income from oil and gas production
revenues on properties of the Partnership, subject to certain
restrictions summarized below. (See "- Depletion Allowance".)
ACRS. The Partnership's reasonable costs for recovery property (tangible
depreciable property used in a trade or business or held for the
production of income) which cannot currently be deducted but must be
capitalized will be eligible for cost recovery deductions under the
modified Accelerated Cost Recovery System, generally over a seven year
"cost recovery period," subject to certain restrictions summarized below
(including basis and "at risk" limitations and the passive activity loss
limitation in the case of the Limited Partners). (See "Depreciation -
Accelerated Cost Recovery System".)
AVAILABILITY OF CERTAIN DEDUCTIONS. Business expenses, including
payments for personal services actually rendered in the taxable year in
which accrued, which are reasonable, ordinary and necessary and do not
include amounts for items such as Lease acquisition costs, organization
and syndication fees and other items which are required to be
capitalized, are currently deductible. (See "-1997 Expenditures," "
Availability of Certain Deductions" and "- Partnership Organization and
Syndication Fees".)
ALLOCATIONS. Assuming the effect of the allocations of income, gain,
loss, deduction and credit (or items thereof) set forth in the
Partnership Agreement, including the allocations of basis and amount
realized with respect to oil and gas properties, is substantial in light
of a Participant's tax attributes that are unrelated to the Partnership,
it is more likely than not that such allocations will have "substantial
economic effect" and will govern each Participant's distributive share
of such items to the extent such allocations do not cause or increase
deficit balances in the Participants' Capital Accounts. (See "-
Allocations".)
AGREED SUBSCRIPTION. No gain or loss will be recognized by the
Participants on payment of their Agreed Subscriptions.
PROFIT MOTIVE. Based on the Managing General Partner's representation
that the Partnership will be conducted as described in the Prospectus,
it is more likely than not that the Partnership will possess the
requisite profit motive and will not be properly characterized as a tax
shelter for purposes of the tax shelter registration requirement and the
substantial understatement of income tax liability penalty. (See "
Disallowance of Deductions Under Section 183 of the Code" and "Penalties
and Interest".)
IRS ANTI-ABUSE RULE. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in
the Prospectus, it is more likely than not that the Partnership will not
be subject to the anti-abuse rule set forth in Treas. Reg. 1.7012. (See
"- IRS Anti-Abuse Rule".)
OVERALL EVALUATION OF TAX BENEFITS. Based on Special Counsel's
conclusion that substantially more than half of the material tax
benefits of the Partnership, in terms of their financial impact on a
typical investor, more likely than not will be realized if challenged by
the IRS, the tax benefits of the Partnership, in the aggregate, which
are a significant feature of an investment in the Partnership by a
typical original Participant more likely than not will be realized as
contemplated by the Prospectus.
IN GENERAL
The following is a summary of some of the principal features under
present federal income tax law which will apply to the Partnership and
typical Participants. However, there is no assurance that the present
laws or regulations will not be changed and adversely affect a
Participant. The IRS may challenge the deductions claimed by the
Partnership or a Participant, or the taxable year in which such
deductions are claimed, and no guaranty can be given that any such
challenge would not be upheld if litigated. The practical utility of the
tax aspects of any investment depends largely on the income tax position
of the particular Participant in the year in which items of income,
gain, loss, deduction or credit are properly taken into account in
computing his federal income tax liability. In addition, except as
otherwise noted, different tax considerations may apply to foreign
persons, corporations, partnerships, trusts and other prospective
Participants which are not treated as individuals for federal income tax
purposes. EACH PROSPECTIVE PARTICIPANT SHOULD SATISFY HIMSELF AS TO THE
TAX CONSEQUENCES OF PARTICIPATING IN THE PARTNERSHIP BY OBTAINING ADVICE
FROM HIS OWN TAX ADVISOR.
PARTNERSHIP CLASSIFICATION
For federal income tax purposes, a partnership is not a taxable entity
but rather a conduit through which all items of income, gain, loss,
deduction, credit and tax preference are passed through to the partners
and are required to be reported on their federal income tax returns for
the taxable years in which or with which the partnership's taxable year
ends. The Managing General Partner has received the opinion of Special
Counsel that, under currently existing laws, rules and regulations, all
of which are subject to change with or without retroactive application,
the Partnership will be treated as a partnership for federal income tax
purposes and not as an association taxable as a corporation. Under new
regulations a business entity with two or more members is classified for
federal tax purposes as either a corporation or a partnership. Treas.
Reg. 301.7701-2(a). The term corporation includes a business entity
organized under a State statute which describes the entity as a
corporation, body corporate, body politic, joint-stock company or joint-
stock association. Treas. Reg. 301.7701-2(b). The Partnership was
formed under the Pennsylvania Revised Uniform Limited Partnership Act
which describes the Partnership as a "partnership". Consequently, the
Partnership is not required to be classified as a corporation under
Treas. Reg. 301.7701-2(b) and will be automatically classified as a
partnership unless it affirmatively elects to be classified as a
corporation. In this regard, the Managing General Partner has
represented that no election for the Partnership to be classified as a
corporation will be filed with the IRS.
LIMITATIONS ON PASSIVE ACTIVITIES
Under the passive activity rules, all income of a taxpayer who is
subject to the rules is categorized as: (i) income from passive
activities such as limited partners' interests in a business; (ii)
active income (e.g., salary, bonuses, etc.); or (iii) portfolio income
(e.g., dividends, royalties and interest not derived in the ordinary
course of a trade or business). Losses generated by "passive
activities" can offset only passive income and cannot be applied against
active income or portfolio income. Similar rules apply with respect to
tax credits.
Passive activities include any trade or business in which the taxpayer
does not materially participate. Material participation is defined as
involvement in the operations of the activity on a regular, continuous,
and substantial basis. Under the Partnership Agreement, Limited Partners
will not have material participation in the Partnership and generally
will be subject to the passive activity rules.
A taxpayer who holds a working interest in an oil and gas property that
is burdened with the cost of developing and operating the property is
excepted from the passive activity rules, whether or not he materially
participates in the activity. However, a taxpayer who holds a working
interest directly or indirectly through an entity (e.g., a limited
partnership interest or S corporation shares) which limits the liability
of the taxpayer with respect to such interest is not treated as owning a
working interest. Consequently, the exception is not available to
Limited Partners in the Partnership, but more likely than not the
exception will be available to Investor General Partners prior to their
conversion to Limited Partners to the extent the Partnership acquires
Working Interests in its Leases, except as noted above. Contractual
limitations on the liability of Investor General Partners under the
Partnership Agreement (e.g. insurance, limited indemnification, etc.)
will not prevent Investor General Partners from claiming deductions
under the working interest exception to the passive activity rules.
Suspended losses and credits may be carried forward (but not back) and
used to offset future years' passive activity income. A suspended loss
(but not a credit) is allowed in full when the entire interest is sold
to an unrelated third party in a taxable transaction. Upon such
disposition the excess of suspended losses and any loss from the
activity for the tax year (plus any loss on the sale) over net income or
gain for the tax year from all passive activities (determined without
regard to such losses) is not treated as a passive loss. Capital losses
are limited to the amount of capital gain, plus $3,000 (in the case of
married individuals filing joint returns).
Net losses and credits of a partner from each publicly traded
partnership are suspended and carried forward to be netted against
income from that publicly traded partnership only. In addition, net
losses from other passive activities may not be used to offset net
income from a publicly traded partnership. However, it is more likely
than not that the Partnership will not be characterized as a publicly
traded partnership under the Code so long as no more than 10% of the
Units are transferred in any taxable year of the Partnership (other than
in private transfers described in Treas. Reg 1.7704-1(e)).
CHARACTERIZATION OF THE PARTNERSHIP'S INCOME. Income (e.g., interest)
earned on working capital is treated as portfolio income which cannot be
offset with passive losses by Limited Partners. "Portfolio income"
consists of (i) interest, dividends and royalties (unless earned in the
ordinary course of a trade or business); and (ii) gain or loss not
derived in the ordinary course of a trade or business on the sale of
property that generates portfolio income or is held for investment.
In the opinion of Special Counsel, it is more likely than not that the
Partnership's income from the Leases (excluding income attributable to
investment of working capital), held as Working Interests, together with
gain, if any, from the disposition of such property, will be
characterized as passive income rather than portfolio income with
respect to Limited Partners subject to the passive activity limitations.
CONVERSION FROM INVESTOR GENERAL PARTNER TO LIMITED PARTNER. Investor
General Partner Units will be converted to Limited Partner interests
after substantially all of the Partnership Wells have been drilled and
completed, which is anticipated to be in the late summer of 1998.
Thereafter, each Investor General Partner will be deemed a Limited
Partner in the Partnership and will enjoy the limited liability provided
to limited partners under the Revised Uniform Limited Partnership Act of
Pennsylvania with respect to his interest in the Partnership's oil and
gas properties.
Concurrently, the Investor General Partner will lose the availability
of the working interest exception to the passive activity limitations.
Except as provided below, an Investor General Partner's conversion of
his Partnership interest into a Limited Partner interest should not have
adverse tax consequences unless the Investor General Partner's share of
any Partnership liabilities is reduced as a result of the conversion. A
reduction in a partner's share of liabilities is treated as a
constructive distribution of cash to such partner, which reduces the
basis of the partner's interest in the partnership and is taxable to the
extent it exceeds such basis.
In addition, any net income from a Partnership Well allocable to an
Investor General Partner will continue to be characterized as nonpassive
income which cannot be offset with passive losses, even after such
Investor General Partner has converted to Limited Partner status.
TAXABLE YEAR
The Partnership intends to adopt a calendar year taxable year.
1997 EXPENDITURES
It is anticipated that all of the Partnership's subscription proceeds
will be expended in 1997 and that the income and deductions generated
pursuant thereto will be reflected on the Participants' federal income
tax returns for that period. (See "Capitalization and Source of Funds
and Use of Proceeds" and "Participation in Costs and Revenues".)
Depending primarily on when the Partnership Subscription is received, it
is anticipated that the Partnership will prepay in 1997 most, if not
all, of the intangible drilling and development costs for wells the
drilling of which will be commenced in 1998. The deductibility in 1997
of such advance payments cannot be guaranteed. (See "- Drilling
Contracts," below.)
AVAILABILITY OF CERTAIN DEDUCTIONS
The ordinary and necessary expenses of carrying on any trade or
business, including a reasonable allowance for salaries or other
compensation for personal services actually rendered, are deductible in
the year incurred. The Managing General Partner has represented to
counsel that the amounts payable to the Managing General Partner and its
Affiliates, including the amounts paid to Atlas or its Affiliates as
general drilling contractor, are the amounts which would ordinarily be
paid for similar services in similar transactions. (See "- Drilling
Contracts," below.) The fees paid to the Managing General Partner and
its Affiliates will not be currently deductible to the extent it is
determined that they are in excess of reasonable compensation, are
properly characterized as organization or syndication fees, other
capital costs such as the acquisition cost of the Leases, or not
"ordinary and necessary" business expenses, or the services were
rendered in tax years other than the tax year in which such fees were
deducted by the Partnership. (See "- Partnership Organization and
Syndication Fees," below.) In the event of an audit, payments to the
Managing General Partner and its Affiliates by the Partnership will be
scrutinized by the IRS to a greater extent than payments to an unrelated
party.
INTANGIBLE DRILLING AND DEVELOPMENT COSTS
Assuming a proper election and subject to the passive activity loss
rules in the case of Limited Partners, each Participant will be entitled
to deduct his share of intangible drilling and development costs
("Intangible Drilling Costs") which include items which do not have
salvage value, such as labor, fuel, repairs, supplies and hauling
necessary to the drilling of a well. (See "Participation in Costs and
Revenues" and "- Limitations on Passive Activities," above.) Such costs
generally will be subject to ordinary income recapture if a property is
sold at a gain and the amount to be recaptured is not reduced by the
amount of additional depletion that could have been claimed if such
costs had been capitalized and amortized. (See "- Sale of the
Properties," below.) The amount of the deduction for intangible
drilling and development costs is limited for integrated oil companies,
i.e., (i) those taxpayers who directly or through a related person
engage in the retail sale of oil or gas and whose gross receipts for the
calendar year from such activities exceed $5,000,000, or (ii) those
taxpayers and related persons who have refinery production in excess of
50,000 barrels on any day during the taxable year. Also, productivewell
intangible drilling and development costs may subject a Participant to
an alternative minimum tax in excess of regular tax unless an election
is made to deduct them on a straight line basis over a 60 month period.
(See "- Minimum Tax - Tax Preferences," below.)
In the preparation of the Partnership's informational tax returns, Atlas
will allocate Partnership costs paid by Atlas and the Participants among
Intangible Drilling Costs, Tangible Costs, Direct Costs, Administrative
Costs, Organization and Offering Costs and Operating Costs based upon
guidance from advisors to Atlas. Atlas has allocated approximately 77%
of the footage price to be paid by the Partnership for a completed well
in the Appalachian Basin to intangible drilling and development costs.
The IRS could challenge the characterization of costs claimed by the
Partnership to be deductible intangible drilling and development costs
and recharacterize such costs as some other item which may be non-
deductible; however, this would have no effect on the allocation and
payment of such costs under the Partnership Agreement. Where a Lease is
acquired subject to an obligation to pay an excessive drilling price,
such excess amounts may not qualify as deductible intangible drilling
and development costs but may be treated as Lease acquisition costs or
some other non-deductible expense.
DRILLING CONTRACTS
The Partnership will enter into the Drilling and Operating Agreement
with Atlas or its Affiliates, as a third-party general drilling
contractor, to drill and complete the Partnership's Development Wells on
a footage basis of $37.39 per foot for each well that is drilled and
completed in the Appalachian Basin, and at a competitive rate for wells,
if any, drilled in other areas of the United States. Under the footage
drilling contracts for wells situated in the Mercer County area of the
Appalachian Basin, Atlas anticipates that it will have reimbursement of
general and administrative overhead of $3,600 per well and a profit of
approximately 15% per well assuming the well is drilled to 6,150 feet.
However, the actual cost of the drilling of the wells may be more or
less than the estimated amount, due primarily to the uncertain nature of
drilling operations. Atlas believes the Drilling and Operating Agreement
is at competitive rates in the proposed areas of operation.
Nevertheless, the amount of the profit realized by Atlas under the
drilling contract, if any, could be challenged by the IRS as
unreasonable and disallowed as a deductible intangible drilling and
development cost. (See "- Intangible Drilling and Development Costs,"
above, "Proposed Activities" and "Compensation".)
Depending primarily on when the Partnership Subscription is received, it
is anticipated that the Partnership will prepay in 1998 most, if not
all, of the intangible drilling and development costs for Partnership
Wells the drilling of which will be commenced in 1998. In KELLER V.
COMMISSIONER, 79 T.C. 7 (1982), AFF'D. 725 F.2d 1173 (8th Cir. 1984),
the Tax Court applied a two-part test for the current deductibility of
prepaid intangible drilling and development costs: (1) the expenditure
must be a payment rather than a refundable deposit; and (2) the
deduction must not result in a material distortion of income taking into
substantial consideration the business purpose aspects of the
transaction. The Partnership will attempt to comply with the guidelines
set forth in KELLER with respect to any prepaid intangible drilling and
development costs. The Drilling and Operating Agreement will require the
Partnership to prepay in 1997 intangible drilling and development costs
for specified wells the drilling of which will be commenced in 1998.
Although the Partnership is not required to prepay
completion costs of a well prior to the time a decision has been made to
complete the well, it is anticipated that all Partnership Wells will be
required to be completed before an evaluation can be made as to their
potential productivity. Prepayments should not result in a loss of
current deductibility where there is a legitimate business purpose for
the required prepayment, the contract is not merely a sham to control
the timing of the deduction and there is an enforceable contract of
economic substance. The Drilling and Operating Agreement will require
the Partnership to prepay the intangible drilling and development costs
of the wells in order to enable the Operator to commence site
preparation for the wells, obtain suitable subcontractors at the then
current prices and insure the availability of equipment and materials.
Under the Drilling and Operating Agreement excess prepaid amounts, if
any, will not be refundable to the Partnership but will be applied to
intangible drilling and development costs to be incurred in drilling
substitute wells. Under KELLER, such a provision for substitute wells
should not result in the prepayments being characterized as refundable
deposits.
The likelihood that prepayments will be challenged by the IRS on the
grounds that there is no business purpose for the prepayment is
increased in the event prepayments are not required with respect to 100%
of the Working Interest. It is possible that less than 100% of the
Working Interest will be acquired by the Partnership in one or more
wells and prepayments may not be required of all holders of the Working
Interest. However, in the view of Special Counsel, a legitimate business
purpose for the required prepayments may exist under the guidelines set
forth in KELLER, even though prepayment is not required, or actually
received, by the drilling contractor with respect to a portion of the
Working Interest.
In addition to the foregoing, a current deduction for prepaid intangible
drilling and development costs is available only if the drilling of the
wells is commenced before the close of the 90th day after the close of
the taxable year. The Managing General Partner will attempt to cause
prepaid Partnership Wells to be Spudded on or before March 31, 1998.
However, the Spudding of any Partnership Well may be delayed due to
circumstances beyond the control of the Partnership or the drilling
contractor. Such circumstances include the unavailability of drilling
rigs, weather conditions, inability to obtain drilling permits or access
right to the drilling site, or title problems. Due to the foregoing
factors, no guaranty can be given that all prepaid Partnership Wells
required by the Drilling and Operating Agreement to be Spudded on or
before March 31, 1998, will actually be commenced by such date. In that
event, deductions claimed in 1997 for prepaid intangible drilling and
development costs would be disallowed and deferred to the 1998 taxable
year.
No assurance can be given that on audit the IRS will not disallow the
current deductibility of a portion or all of any prepayments of
intangible drilling and development costs under the Partnership's
drilling contracts, thereby decreasing the amount of deductions
allocable to the Participants for the current taxable year, or that such
a challenge would not ultimately be sustained. In the event of
disallowance, the deduction will be available in the year the work is
actually performed.
DEPLETION ALLOWANCE
Proceeds from the sale of oil and gas production will constitute
ordinary income. A certain portion of such income will not be taxable by
virtue of the depletion allowance which permits the deduction from gross
income for federal income tax purposes of either the percentage
depletion allowance or the cost depletion allowance, whichever is
greater.
Cost depletion for any year is determined by dividing the adjusted tax
basis for the property by the total units of gas or oil expected to be
recoverable therefrom and then multiplying the resultant quotient by the
number of units actually sold during the year. Cost depletion cannot
exceed the adjusted tax basis of the property to which it relates.
Percentage depletion generally is available to taxpayers other than
integrated oil companies. (See "- Intangible Drilling and Development
Costs," above.) Percentage depletion generally is based on the
Participant's share of gross income from the oil and gas producing
property. Generally, percentage depletion is available with respect to 6
million cubic feet of average daily production of natural gas or 1,000
barrels of average daily production of domestic crude oil. The rate of
percentage depletion is 15%. However, percentage depletion for marginal
production increases 1% (up to a maximum increase of 10%) for each whole
dollar that the domestic wellhead price of crude oil for the immediately
preceding year is less than $20 per barrel (without adjustment for
inflation). The term "marginal production" includes oil and gas produced
from a domestic stripper well property, which is defined as any property
which produces a daily average of 15 or less equivalent barrels of oil
(90 MCF of natural gas) per producing well on the property in the
calendar year. The rate of percentage depletion for marginal production
presently is 16%. (See the model decline curve included in the UEDC
Geological Report in "Proposed Activities Information Regarding
Currently Proposed Prospects".)
Also, percentage depletion may not exceed 100% of the taxable income
from each oil and gas property before the deduction for depletion and is
limited to 65% of the taxpayer's taxable income for a year computed
without regard to deductions for percentage depletion, net operating
loss carrybacks and capital loss carrybacks. On disposition of an oil
and gas property there is recapture of the lesser of: (i) the amounts
that were deducted as intangible drilling and development costs rather
than added to basis, plus depletion deductions that reduced the basis of
the property; or (ii) the amount realized in the case of a sale,
exchange or involuntary conversion or fair market value in all other
cases, minus the property's adjusted basis.
Availability of percentage depletion must be computed separately for
each Participant and not by the Partnership, or for Participants as a
whole. Potential Participants are urged to consult their own tax
advisors with respect to the availability of percentage depletion to
them.
DEPRECIATION - ACCELERATED COST RECOVERY SYSTEM
Tangible Costs and the related depreciation deductions are allocated and
charged under the Partnership Agreement 14% to the Managing General
Partner and 86% to the Participants. The cost of most equipment placed
in service by the Partnership will be recovered through depreciation
deductions over a seven year cost recovery period, using the 200%
declining balance method, with a switch to straight-line to maximize the
deduction. Only a half-year of depreciation is allowed for the year
recovery property is placed in service or disposed of and in the case of
a short tax year, the ACRS deduction is prorated on a 12-month basis.
No distinction is made between new and used property and salvage value
is disregarded. An alternative depreciation system is used to compute
the depreciation preference subject to the alternative minimum tax
(using the 150% declining balance method, switching to straight-line,
for most personal property). (See "- Minimum Tax - Tax Preferences,"
below.) A taxpayer may elect to recover the cost of assets using the
straight-line method or the alternative depreciation system for regular
tax purposes to avoid creating a tax preference. All gain on a
disposition of tangible personal property is treated as ordinary income
to the extent of ACRS deductions claimed by the taxpayer and deductions
allowed under 179 of the Code, which provides an election to expense
up to $18,000 of the cost of certain tangible personal property placed
in service in 1997. The deductible amount is reduced by the cost of
qualifying property in excess of $200,000 and cannot exceed the taxable
income derived from the active conduct by the taxpayer of the trade or
business in which the property is used. These limitations are applied at
both the partnership and the partner level.
LEASEHOLD COSTS AND ABANDONMENT
The costs of acquiring oil and gas Lease interests, together with the
related cost depletion deduction and any abandonment loss, are allocated
under the Partnership Agreement 100% to Atlas, which will contribute the
Leases to the Partnership as a part of its Capital Contribution.
TAX BASIS OF PARTICIPANTS' INTERESTS
The adjusted basis for federal income tax purposes of a Participant's
interest in the Partnership will be adjusted (but not below zero) for
any gain or loss to the Participant from a disposition by the
Partnership of an oil or gas property, and will be increased by his cash
subscription payment and his share of Partnership income.
The adjusted basis of a Participant's interest in the Partnership will
be reduced by: his share of Partnership losses; his depletion deduction
(but not below zero); and cash distributions from the Partnership to
him. The reduction in a Participant's share of Partnership liabilities
is considered a cash distribution. Should cash distributions exceed the
tax basis of the Participant's interest in the Partnership, taxable gain
would result to the extent of the excess.
A Participant's distributive share of Partnership loss is allowable only
to the extent of the adjusted basis of such Participant's interest in
the Partnership at the end of the Partnership's taxable year.
DISTRIBUTIONS FROM A PARTNERSHIP
Generally, a cash distribution from a partnership to a partner in excess
of the adjusted basis of such partner's interest in the partnership
immediately before the distribution is treated as gain from the sale or
exchange of his interest in the partnership to the extent of the excess.
No loss is recognized by the partners on these types of distributions.
Other distributions of cash, disproportionate distributions of
property, and liquidating distributions may result in taxable gain or
loss. (See "- Disposition of Partnership Interests" and "-
Termination of a Partnership," below.)
SALE OF THE PROPERTIES
Under current law, a noncorporate taxpayer's ordinary income is taxed at
a maximum rate of 39.6%; but net capital gains of a noncorporate
taxpayer are taxed at a maximum rate of 28%. The annual capital loss
limitation for noncorporate taxpayers is the amount of capital gains
plus the lesser of $3,000 ($1,500 for married persons filing separate
returns) or the excess of capital losses over capital gains. Long-term
losses (like short-term losses) offset ordinary income on a one-for-one
basis.
Gains or losses from sales of oil and gas properties held for more than
twelve months would be, except to the extent of depreciation recapture
on equipment and recapture of any intangible drilling and development
costs, depletion deductions and certain other losses, treated as a long-
term capital gain while a net loss will be an ordinary deduction. Other
gains and losses on sales of oil and gas properties will generally
result in ordinary gains or losses.
DISPOSITION OF PARTNERSHIP INTERESTS
The sale or exchange of all or part of a Participant's interest in the
Partnership held by him for more than twelve months will generally
result in a recognition of long-term capital gain or loss. In the event
the interest is held for twelve months or less, such gain or loss will
generally be short-term gain or loss. The recapturable portions of
depreciation, depletion and intangible drilling and development costs
constitute ordinary income. A portion of any gain recognized by a
Limited Partner on the sale or other disposition of his interest in the
Partnership will also be characterized as portfolio income under the
passive activity rules to the extent the gain is itself attributable to
portfolio income (e.g. interest on investment of working capital). A
Participant's pro rata share of the Partnership's nonrecourse
liabilities, if any, as of the date of the sale or exchange must be
included in the amount realized. Therefore, the gain recognized may
result in a tax liability greater than the cash proceeds, if any, from
such disposition. A gift of an interest in the Partnership may result in
federal and/or state income tax and gift tax liability of the donor. A
Participant who sells or exchanges all or part of his interest in the
Partnership is required by the Code to notify the Partnership within 30
days or by January 15 of the following year, if earlier. Other
dispositions of a Participant's interest, including a repurchase of the
interest by Atlas, may or may not result in recognition of taxable gain.
However, no gain should be recognized by an Investor General Partner
whose interest in the Partnership is converted to a Limited Partner
interest so long as there is no change in his share of the Partnership's
liabilities or certain Partnership assets as a result of the conversion.
No disposition of an interest in the Partnership (including repurchase
of the interest by Atlas) should be made by any Participant prior to
consultation with his tax advisor.
MINIMUM TAX - TAX PREFERENCES
For taxpayers other than integrated oil companies (see "- Intangible
Drilling and Development Costs"), the 1992 National Energy Bill repealed
(1) the preference for excess intangible drilling and development costs
and (2) the excess percentage depletion preference for oil and gas. The
repeal of the excess intangible drilling and development costs
preference, however, may not result in more than a 40% reduction in the
amount of the taxpayer's alternative minimum taxable income computed as
if the excess intangible drilling and development costs preference had
not been repealed. These rules are summarized below.
The alternative minimum tax is intended to insure that no one with
substantial income can avoid tax liability by using deductions and
credits, including the deductions for intangible drilling and
development costs and accelerated depreciation. The alternative minimum
tax rate for individuals is 26% on alternative minimum taxable income up
to $175,000 ($87,500 for married individuals filing separate returns)
and 28% thereafter. Regular tax personal exemptions are not available
for purposes of the alternative minimum tax, however, alternative
minimum taxable income may be reduced by certain itemized deductions,
exemption amounts and net operating losses.
Under the prior rules, the amount of intangible drilling and development
costs which is not deductible for alternative minimum tax purposes is
the excess of the "excess intangible drilling costs" over 65% of net
income from oil and gas properties. Excess intangible drilling costs is
the regular intangible drilling and development costs deduction minus
the amount that would have been deducted under 120month straight-line
amortization, or (at the taxpayer's election) under the cost depletion
method. There is no preference for costs of nonproductive wells and with
respect to productive wells taxpayers can elect to amortize the year's
intangible drilling and development costs ratably over a 60 month period
for all tax purposes and then such costs are not treated as an item of
tax preference.
The likelihood of a Participant incurring, or increasing, any minimum
tax liability by virtue of an investment in the Partnership must be
determined on an individual basis, and requires consultation by a
prospective Participant with his personal tax advisor.
LIMITATIONS ON DEDUCTION OF INVESTMENT INTEREST
Investment interest is deductible by a noncorporate taxpayer only to
the extent of net investment income each year (with an indefinite
carryforward of disallowed investment interest). An Investor General
Partner's share of any interest expense incurred by the Partnership will
be subject to the investment interest limitation. In addition, an
Investor General Partner's income and losses (including intangible
drilling and development costs) from the Partnership will be considered
investment income and losses. Losses allocable to an Investor General
Partner will reduce his net investment income and may affect the
deductibility of his investment interest expense, if any.
No item of income or expense subject to the passive activity loss rules
is treated as investment income or investment expense.
ALLOCATIONS
The Partnership Agreement allocates to each Partner his share of the
income, gains, credits and deductions (including the deductions for
intangible drilling and development costs and depreciation) generated by
the Partnership. (See "Participation in Costs and Revenues".) The
Capital Accounts of the Partners are adjusted to reflect such
allocations and the Capital Accounts, as adjusted, will be given effect
in distributions made to the Partners upon liquidation of the
Partnership or any Partner's interest in the Partnership. Generally, a
Participant's Capital Account is increased by the amount of money he
contributes to the Partnership and allocations to him of income and
gain, and decreased by the value of property or cash distributed to him
and allocations to him of loss and deductions.
It should be noted that each Partner's share of Partnership items of
income, gain, loss, deduction and credit must be taken into account
whether or not there is any distributable cash. A Participant's share of
Partnership revenues applied to the repayment of loans or the reserve
for plugging wells will be included in his gross income in a manner
analogous to an actual distribution of the income to him. Thus, a
Participant may have taxable income from the Partnership for a
particular year in excess of any cash distributions from the Partnership
to him with respect to that year. To the extent the Partnership has cash
available for distribution, however, it is Atlas' policy that
Partnership distributions will not be less than the Participants'
estimated income tax liability with respect to Partnership income.
No assurance can be given that, on audit, the IRS will not take the
position that a portion of the deductions allocable to the Participants
is not allowable to them. If such a position is taken, there can be no
assurance that any resulting deficiency will not ultimately be
sustained. However, assuming the effect of the special allocations set
forth in the Partnership Agreement is substantial in light of a
Participant's tax attributes that are unrelated to the Partnership, in
the opinion of Special Counsel it is more likely than not that such
allocations will govern each Participant's distributive share of such
items to the extent such allocations do not cause or increase deficit
balances in the Participants' Capital Accounts.
If any allocation under the Partnership Agreement is not recognized for
federal income tax purposes, each Participant's distributive share of
the items subject to such allocation generally will be determined in
accordance with his interest in the Partnership, determined by
considering relevant facts and circumstances. To the extent such
deductions, as allocated by the Partnership Agreement, exceed deductions
which would be allowed pursuant to such a reallocation Participants may
incur a greater tax burden.
"AT RISK" LIMITATION FOR LOSSES
Subject to the limitations on "passive losses" generated by the
Partnership in the case of Limited Partners and a Participant's basis in
the Partnership, each Participant may use his share of the
Partnership's losses to offset income from other sources. (See "
Limitations on Passive Activities" and " - Tax Basis of Participants'
Interests," above.) However, any individual taxpayer who sustains a loss
in connection with the Partnership may deduct such loss only to the
extent of the amount he has "at risk" in the Partnership at the end of a
taxable year. The amount "at risk" is limited to the amount of money and
the adjusted basis of other property the taxpayer has contributed to the
activity, and any amount he has borrowed with respect thereto for which
he is personally liable or with respect to which he has pledged property
other than property used in the activity; limited, however, to the net
fair market value of his interest in such pledged property. However,
amounts borrowed will not be considered "at risk" if such amounts are
borrowed from any person who has an interest (other than as a creditor)
in such activity or from a related person to a person (other than the
taxpayer) having such an interest.
In addition, the amount the taxpayer has "at risk" may not include the
amount of any loss that the taxpayer is protected against through
nonrecourse loans, guarantees, stop loss agreements, or other similar
arrangements. The amount of any such loss that is disallowed in any
taxable year will be carried over to the first succeeding taxable year,
to the extent a Participant is "at risk." Further, a taxpayer's "at
risk" amount in subsequent taxable years with respect to the activity
involved will be reduced by that portion of the loss which is allowable
as a deduction.
Participants' Agreed Subscriptions are funded by a payment of cash
(usually "at risk").
PARTNERSHIP ORGANIZATION AND SYNDICATION FEES
Expenses connected with the sale of interests in a partnership are not
deductible. Although certain organization expenses of a partnership may
be deducted and amortized over a period of not less than 60 months, such
expenses are charged 100% to the Managing General Partner as part of the
Partnership's Organization and Offering Costs and any related deductions
will be allocated to the Managing General Partner.
TAX ELECTIONS
The Code permits partnerships to elect to adjust the basis of
partnership property on the transfer of an interest in a partnership by
sale or exchange or on the death of a partner, and on the distribution
of property by the partnership to a partner (the 754 election). The
general effect of such an election is that transferees of the
partnership interests are treated, for purposes of depreciation and
gain, as though they had acquired a direct interest in the partnership
assets and the partnership is treated for such purposes, upon certain
distributions to partners, as though it had newly acquired an interest
in the partnership assets and therefore acquired a new cost basis for
such assets. The Partnership Agreement provides that the Partnership may
make the 754 election. Taxpayers may elect to capitalize and amortize
"start-up expenditures" over a 60-month period. Such items include
amounts: (1) paid or incurred in connection with: (i) investigating and
creating an active trade or business; or (ii) any activity engaged in
for profit and for the production of income before the day on which the
active trade or business begins, in anticipation of such activity
becoming an active trade or business; and (2) which would be allowed as
a deduction if paid or incurred in connection with the expansion of an
existing business. Start-up expenditures do not include amounts paid or
incurred in connection with the sale of partnership interests. If it is
ultimately determined that any of the Partnership's expenses constituted
start-up expenditures and not deductible business expenses, the
Partnership's deductions would be reduced.
DISALLOWANCE OF DEDUCTIONS UNDER SECTION 183 OF THE CODE
A Participant's ability to deduct his share of the Partnership's losses
could be lost if the Partnership lacks the appropriate profit motive as
determined from an examination of all facts and circumstances at the
time. There is a presumption that an activity is engaged in for profit,
if, in any three of five consecutive taxable years, the gross income
derived from such activity exceeds the deductions attributable to such
activity. Thus, if the Partnership fails to show a profit in at least
three out of five consecutive years, this presumption will not be
available. In that instance, the possibility that the IRS could
successfully challenge the deductions claimed by a Participant would be
substantially increased.
The fact that the possibility of ultimately obtaining profits is
uncertain, standing alone, does not appear to be sufficient grounds for
the denial of losses. Based on Atlas' representation that the
Partnership will be conducted as described in this Prospectus, in the
opinion of Special Counsel it is more likely than not that the
Partnership will possess the requisite profit motive.
TERMINATION OF A PARTNERSHIP
A partnership will be considered as terminated for federal income tax
purposes if within a twelve month period there is a sale or exchange of
50% or more of the total interest in partnership capital and profits. A
partner will realize taxable gain on a termination of the partnership to
the extent that money regarded as distributed to him exceeds the
adjusted basis of his partnership interest. The conversion of Investor
General Partner Units to Limited Partner interests will not result in a
termination of the Partnership.
LACK OF REGISTRATION AS A TAX SHELTER
An organizer of a "tax shelter" must obtain an identification number
which must be included on the tax returns of investors in such a tax
shelter. For this purpose, a "tax shelter" includes investments with
respect to which any person could reasonably infer that the ratio that
(1) the aggregate amount of the potentially allowable deductions and
350% of the potentially allowable credits with respect to the investment
during the first five years of the investment bears to (2) the amount of
money and the adjusted basis of property contributed to the investment
exceeds 2 to 1, determined without reduction for gross income derived
from the investment.
Atlas does not believe that the Partnership will have a tax shelter
ratio greater than 2 to 1. Also, because the purpose of the Partnership
is to locate, produce and market natural gas on an economic basis, Atlas
does not believe that the Partnership will be a "potentially abusive tax
shelter." Accordingly, Atlas does not intend to cause the Partnership to
register with the IRS as a tax shelter.
If it is subsequently determined that the Partnership was required to be
registered with the IRS as a tax shelter, Atlas would be subject to
certain penalties and each Participant would be liable for a $250
penalty for failure to include the tax shelter registration number on
his tax return, unless such failure was due to reasonable cause. A
Participant also would be liable for a penalty of $100 for failing to
furnish the tax shelter registration number to any transferee of his
interest in the Partnership. However, based on the representations of
the Managing General Partner, Special Counsel has expressed the opinion
that the Partnership, more likely than not, is not required to register
with the IRS as a tax shelter.
Issuance of a registration number does not indicate that an investment
or the claimed tax benefits have been reviewed, examined, or approved by
the IRS.
INVESTOR LISTS. Any person who organizes a tax shelter required to be
registered with the IRS must maintain a list of each investor in the tax
shelter. For the reasons described above, Atlas does not believe the
Partnership is a tax shelter for this purpose. If this determination is
wrong there is a penalty of $50 for each person, unless the failure is
due to reasonable cause.
TAX RETURNS AND AUDITS
IN GENERAL. The tax treatment of all partnership items is generally
determined at the partnership, rather than the partner, level; and the
partners are generally required to treat partnership items on their
individual returns in a manner which is consistent with the treatment of
such partnership items on the partnership return.
Generally, the IRS must conduct an administrative determination as to
partnership items at the partnership level before conducting deficiency
proceedings against a partner, and the partners must file a request for
an administrative determination before filing suit for any credit or
refund. The period for assessing tax against a Partner attributable to a
partnership item may be extended as to all partners by agreement between
the IRS and Atlas, which will serve as the Partnership's representative
("Tax Matters Partner") in all administrative and judicial proceedings
conducted at the partnership level. The Tax Matters Partner generally
may enter into a settlement on behalf of, and binding upon, partners
owning less than a 1% profits interest in partnerships having more than
100 partners. By executing the Partnership Agreement, each Participant
agrees that he will not form or exercise any right as a member of a
notice group and will not file a statement notifying the IRS that the
Tax Matters Partner does not have binding settlement authority.
TAX RETURNS. The preparation and filing of each Participant's federal,
state and local income tax returns are the responsibility of the
Participant. The Partnership will provide each Participant with the tax
information applicable to his investment in the Partnership necessary to
prepare such returns; however, the treatment of the tax attributes of
the Partnership may vary among Participants. The Managing General
Partner, its Affiliates and Special Counsel assume no responsibility for
the tax consequences of this transaction to a Participant, nor for the
disallowance of any proposed deductions. EACH PARTICIPANT IS URGED TO
SEEK QUALIFIED, PROFESSIONAL ASSISTANCE IN THE PREPARATION OF HIS
FEDERAL, STATE AND LOCAL TAX RETURNS.
PENALTIES AND INTEREST
IN GENERAL. Interest (based on the applicable Federal short-term rate
plus 3 percentage points) is charged on underpayments of tax and various
civil and criminal penalties are included in the Code.
PENALTY FOR NEGLIGENCE OR DISREGARD OF RULES OR REGULATIONS. If any
portion of an underpayment of tax is attributable to negligence or
disregard of rules or regulations, 20% of such portion is added to the
tax. Negligence is strongly indicated if a partner fails to treat
partnership items on his tax return in a manner that is consistent with
the treatment of such items on the partnership's return or to notify the
IRS of the inconsistency.
VALUATION MISSTATEMENT PENALTY. There is an addition to tax of 20% of
the amount of any underpayment of tax of $5,000 or more which is
attributable to a substantial valuation misstatement. There is a
substantial valuation misstatement if the value or adjusted basis of any
property claimed on a return is 200% or more of the correct amount; or
if the price for any property or services (or for the use of property)
claimed on a return is 200% or more (or 50% or less) of the correct
price. If there is a gross valuation misstatement (400% or more of the
correct value or adjusted basis or the undervaluation is 25% or less of
the correct amount) the penalty is 40%.
SUBSTANTIAL UNDERSTATEMENT PENALTY. There is also an addition to tax of
20% of any underpayment if the difference between the tax required to be
shown on the return over the tax actually shown on the return, exceeds
the greater of 10% of the tax required to be shown on the return, or
$5,000.
The amount of any understatement generally will be reduced to the extent
it is attributable to the tax treatment of an item supported by
substantial authority, or adequately disclosed on the taxpayer's return
and there is a reasonable basis for the tax treatment of such item by
the taxpayer. However, in the case of "tax shelters," the understatement
may be reduced only if the tax treatment of an item attributable to a
tax shelter was supported by substantial authority and the taxpayer
reasonably believed that the tax treatment claimed was more likely than
not the proper treatment. A "tax shelter" for this purpose is any entity
which has as its principal purpose the avoidance or evasion of federal
income tax.
Assuming the Partnership is conducted as set forth in this Prospectus,
in the opinion of Special Counsel it is more likely than not that the
Partnership will not be characterized as a tax shelter for purposes of
the substantial understatement of income tax penalty.
IRS ANTI-ABUSE RULE. Under Treas. Reg. 1.701-2, if a principal purpose
of a partnership is to reduce substantially the partners' federal income
tax liability in a manner that is inconsistent with the intent of the
partnership rules of the Code, based on all the facts and circumstances,
the IRS is authorized to remedy the abuse. For illustration purposes,
the following factors may indicate that a partnership is being used in a
prohibited manner: (i) the partners' aggregate federal income tax
liability is substantially less than had the partners owned the
partnership's assets and conducted its activities directly; (ii) the
partners' aggregate federal income tax liability is substantially less
than if purportedly separate transactions are treated as steps in a
single transaction; (iii) one or more partners are needed to achieve the
claimed tax results and have a nominal interest in the partnership or
are substantially protected against risk; (iv) substantially all of the
partners are related to each other; (v) income or gain are allocated to
partners who are not expected to have any federal income tax liability;
(vi) the benefits and burdens of ownership of property nominally
contributed to the partnership are retained in substantial part by the
contributing party; and (vii) the benefits and burdens of ownership of
partnership property are in substantial part shifted to the distributee
partners before or after the property is actually distributed to the
distributee partners. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in
this Prospectus, in the opinion of Special Counsel it is more likely
than not that the Partnership will not be subject to the anti-abuse rule
set forth in Treas. Reg. 1.701-2.
STATE AND LOCAL TAXES
The Partnership will operate in states and localities which impose a tax
on its assets or its income, or on each Participant. Deductions which
are available to Participants for federal income tax purposes may not be
available for state or local income tax purposes.
Under Pennsylvania law, the Partnership is required to withhold state
income tax at the rate of 2.8% of Partnership income allocable to
Participants who are not residents of Pennsylvania. Prospective
Participants should consult with their own tax advisors concerning the
possible effect of various state and local taxes on their personal tax
situations.
SEVERANCE, FRANCHISE, AND AD VALOREM (REAL ESTATE) TAXES
The Partnership may incur various ad valorem or severance taxes imposed
by state or local taxing authorities. Currently, there is no such tax
liability in Mercer County, Pennsylvania.
SOCIAL SECURITY BENEFITS AND SELF-EMPLOYMENT TAX
A Limited Partner's share of income or loss from the Partnership is
excluded from the definition of "net earnings from self-employment." No
increased benefits under the Social Security Act will be earned by
Limited Partners and if any Limited Partners are currently receiving
Social Security benefits, their shares of Partnership taxable income
will not be taken into account in determining any reduction in benefits
because of "excess earnings." An Investor General Partner's share of
income or loss from the Partnership will constitute "net earnings from
self-employment" for these purposes. For 1997 the ceiling for social
security tax of 12.4% is $65,400 and there is no ceiling for medicare
tax of 2.9%. Self-employed individuals can deduct one-half of their self-
employment tax.
FOREIGN PARTNERS
The Partnership will be required to withhold and pay to the IRS tax at
the highest rate under the Code applicable to Partnership income
allocable to foreign partners, even if no cash distributions are made to
such partners. A purchaser of a foreign Partner's Units may be required
to withhold a portion of the purchase price and the Managing General
Partner may be required to withhold with respect to taxable
distributions of real property to a foreign Partner. The withholding
requirements described above do not obviate United States tax return
filing requirements for foreign Partners. In the event of
overwithholding, a foreign Partner must file a United States tax return
to obtain a refund.
ESTATE AND GIFT TAXATION
There is no federal tax on lifetime or testamentary transfers of
property between spouses. The gift tax annual exclusion is $10,000 per
donee. The maximum estate and gift tax rate is 55% (subject to a 5%
surtax on amounts in excess of $10,000,000); and estates of $600,000 or
less generally are not subject to federal estate tax. In the event of
the death of a Participant, the fair market value of his interest as of
the date of death (or as of the alternate valuation date) will be
included in his estate for federal estate tax purposes. The decedent's
heirs will, for federal income tax purposes, take as their basis for the
interest the value as so determined for federal estate tax purposes.
CHANGES IN LAW
The Partnership and the Participants could be adversely affected by any
further changes in tax laws that may result through future Congressional
action, Tax Court or other judicial decisions, or interpretations by the
IRS. The Managing General Partner cannot predict what, if any, changes
in the tax law may become law in the future or even if adopted, would
apply to the Partnership.
THE FOREGOING ANALYSIS IS NOT INTENDED AS A SUBSTITUTE FOR CAREFUL TAX
PLANNING. IT IS NOT POSSIBLE TO PREDICT THE EFFECT OF THE TAX LAWS ON
INDIVIDUAL PARTICIPANTS. ACCORDINGLY, EACH PARTICIPANT IS URGED TO SEEK,
AND SHOULD DEPEND UPON, THE ADVICE OF HIS OWN TAX ADVISORS WITH RESPECT
TO HIS INVESTMENT IN THE PARTNERSHIP WITH SPECIFIC REFERENCE TO HIS OWN
TAX SITUATION AND POTENTIAL CHANGES IN THE APPLICABLE LAW.
DEFINITIONS
TERMS DEFINED
As used in this Prospectus, the following terms have the meanings
hereinafter set forth:
(1) "Administrative Costs" means all customary and routine expenses
incurred by the Sponsor for the conduct of Partnership administration,
including: legal, finance, accounting, secretarial, travel, office rent,
telephone, data processing and other items of a similar nature. No
Administrative Costs charged will be duplicated under any other category
of expense or cost. No portion of the salaries, benefits, compensation
or remuneration of controlling persons of Atlas will be reimbursed by
the Partnership as Administrative Costs. Controlling persons include
directors, executive officers and those holding five percent or more
equity interest in the Managing General Partner or a person having power
to direct or cause the direction of the Managing General Partner,
whether through the ownership of voting securities, by contract, or
otherwise.
(2) "Administrator" means the official or agency administering the
securities laws of a state.
(3) "Affiliate" means with respect to a specific person (a) any person
directly or indirectly owning, controlling, or holding with power to
vote 10 per cent or more of the outstanding voting securities of such
specified person; (b) any person 10 per cent or more of whose
outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote, by such specified person; (c)
any person directly or indirectly controlling, controlled by, or under
common control with such specified person; (d) any officer, director,
trustee or partner of such specified person; and (e) if such specified
person is an officer, director, trustee or partner, any person for which
such person acts in any such capacity.
(4) "AIC, Inc." means AIC, Inc., a wholly owned subsidiary of Atlas
Group and the sole shareholder of Atlas, whose principal executive
offices are located at 311 Rouser Road, Moon Township, Pennsylvania,
15108.
(5) "Agreed Subscription" means that amount so designated on the
Subscription Agreement executed by the Participant, or, in the case of
the Managing General Partner, its subscription under 3.03(b) and its
subsections of the Partnership Agreement.
(6) "Assessments" means additional amounts of capital which may be
mandatorily required of or paid voluntarily by a Participant beyond his
subscription commitment.
(7) "Atlas" means Atlas Resources, Inc., a Pennsylvania corporation,
whose principal executive offices are located at 311 Rouser Road, Moon
Township, Pennsylvania 15108.
(8) "Atlas Energy" means Atlas Energy Group, Inc., an Ohio corporation,
whose principal executive offices are located at 311 Rouser Road, Moon
Township, Pennsylvania 15108.
(9) "Atlas Group" means The Atlas Group, Inc., a Pennsylvania
corporation, whose principal executive offices are located at 311 Rouser
Road, Moon Township, Pennsylvania 15108. Atlas Group was formerly known
as AEGH or AEG Holdings, Inc.
(10) "Capital Account" or "account" means the account established for
each party to the Partnership Agreement, maintained as provided in
5.02 and its subsections of the Partnership Agreement.
(11) "Capital Contribution" means the amount agreed to be contributed
to the Partnership by a party pursuant to 3.04 and 3.05 and their
subsections of the Partnership Agreement.
(12) "Carried Interest" means an equity interest in a program issued to
a person without consideration, in the form of cash or tangible
property, in an amount proportionately equivalent to that received from
Participants.
(13) "Code" means the Internal Revenue Code of 1986, as amended.
(14) "Cost", when used with respect to the sale of property to the
Partnership, means (a) the sum of the prices paid by the seller to an
unaffiliated person for such property, including bonuses; (b) title
insurance or examination costs, brokers' commissions, filing fees,
recording costs, transfer taxes, if any, and like charges in connection
with the acquisition of such property; (c) a pro rata portion of the
seller's actual necessary and reasonable expenses for seismic and
geophysical services; and (d) rentals and ad valorem taxes paid by the
seller with respect to such property to the date of its transfer to the
buyer, interest and points actually incurred on funds used to acquire or
maintain such property, and such portion of the seller's reasonable,
necessary and actual expenses for geological, engineering, drafting,
accounting, legal and other like services allocated to the property cost
in conformity with generally accepted accounting principles and industry
standards, except for expenses in connection with the past drilling of
wells which are not producers of sufficient quantities of oil or gas to
make commercially reasonable their continued operations, and provided
that the expenses enumerated in this subsection (d) hereof shall have
been incurred not more than 36 months prior to the purchase by the
Partnership. When used with respect to services, "cost" means the
reasonable, necessary and actual expense incurred by the seller on
behalf of the Partnership in providing such services, determined in
accordance with generally accepted accounting principles. As used
elsewhere, "cost" means the price paid by the seller in an arm's-length
transaction.
(15) "Dealer-Manager" means Anthem Securities, Inc., a wholly owned
subsidiary of AIC, Inc. and the broker-dealer which will manage the
offering and sale of the Units in all states except Minnesota and New
Hampshire, and Bryan Funding, Inc., the broker-dealer which will manage
the offering and sale of Units in Minnesota and New Hampshire.
(16) "Development Drilling" means drilling a Development Well.
(17) "Development Well" means a well drilled within the proved area of
an oil or gas reservoir to the depth of a stratigraphic Horizon known
to be productive.
(18) "Direct Costs" means all actual and necessary costs directly
incurred for the benefit of the Partnership and generally attributable
to the goods and services provided to the Partnership by parties other
than the Sponsor or its Affiliates. Direct Costs shall not include any
cost otherwise classified as Organization and Offering Costs,
Administrative Costs, Intangible Drilling Costs, Tangible Costs,
Operating Costs or costs related to the Leases. Direct Costs may include
the cost of services provided by the Sponsor or its Affiliates if such
services are provided pursuant to written contracts and in compliance
with 4.03(d)(7) of the Partnership Agreement.
(19) "Drilling and Operating Agreement" means the proposed Drilling and
Operating Agreement between Atlas, Atlas Energy or an Affiliate as
Operator, and the Partnership as Developer, a copy of the proposed form
of which is attached as Exhibit (II) to the Partnership Agreement.
(20) "Dry Hole" means a well which is plugged and abandoned with or
without a completion attempt because the Operator has determined that it
will not be productive of gas and/or oil in commercial quantities. (21)
"Exploratory Drilling" means drilling an Exploratory Well.
(22) "Exploratory Well" means a well drilled to find commercially
productive hydrocarbons in an unproved area, to find a new commercially
productive Horizon in a field previously found to be productive of
hydrocarbons at another Horizon, or to significantly extend a known
prospect.
(23) "Farmout" means an agreement whereby the owner of the leasehold or
Working Interest agrees to assign his interest in certain specific
acreage to the assignees, retaining some interest such as an Overriding
Royalty Interest, an oil and gas payment, offset acreage or other type
of interest, subject to the drilling of one or more specific wells or
other performance as a condition of the assignment.
(24) "Final Terminating Event" means any one of the following: (i) the
expiration of the fixed term of the Partnership; (ii) the giving of
notice to the Participants by the Managing General Partner of its
election to terminate the affairs of the Partnership; (iii) the giving
of notice by the Participants to the Managing General Partner of their
similar election through the affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription;
or (iv) the termination of the Partnership under 708(b)(1)(A) of the
Code or the Partnership ceases to be a going concern.
(25) "Fracturing" or "Frac" means a treatment to a potentially
productive geological formation intended to enhance the ability of oil
or gas to migrate through the formation to the well hole. Fracturing may
involve the application of hydraulic pressure to the reservoir formation
or the use of explosive devices to create or enlarge fractures through
which oil or gas may move.
(26) "Horizon" means a zone of a particular formation; that part of a
formation of sufficient porosity and permeability to form a petroleum
reservoir.
(27) "Independent Expert" means a person with no material relationship
to the Sponsor or its Affiliates who is qualified and who is in the
business of rendering opinions regarding the value of oil and gas
properties based upon the evaluation of all pertinent economic,
financial, geologic and engineering information available to the Sponsor
or its Affiliates.
(28) "Initial Closing Date" means the date, on or before the Offering
Termination Date, but after the minimum Partnership Subscription has
been received, that the Managing General Partner, in its sole
discretion, elects for the Partnership to begin business activities,
including the drilling of wells. It is anticipated that this date will
be December 1, 1997.
(29) "Intangible Drilling Costs" or "Non-Capital Expenditures" means
those expenditures associated with property acquisition and the drilling
and completion of oil and gas wells that under present law are generally
accepted as fully deductible currently for federal income tax purposes;
and includes all expenditures made with respect to any well prior to the
establishment of production in commercial quantities for wages, fuel,
repairs, hauling, supplies and other costs and expenses incident to and
necessary for the drilling of such well and the preparation thereof for
the production of oil or gas, that are currently deductible pursuant to
Section 263(c) of the Code and Treasury Reg. Section 1.612-4, which are
generally termed "intangible drilling and development costs," including
the expense of plugging and abandoning any well prior to a completion
attempt.
(30) "Interim Closing Date" means such date(s) after the Initial
Closing Date of the Partnership, but prior to the Offering Termination
Date, that the Managing General Partner, in its sole discretion, applies
additional Agreed Subscriptions to additional Partnership activities,
including drilling activities.
(31) "Investor General Partners" means the persons signing the
Subscription Agreement as Investor General Partners and the Managing
General Partner to the extent of any optional subscription under
3.03(b)(2) of the Partnership Agreement. All Investor General Partners
will be of the same class and have the same rights.
(32) "IRS" means the United States Internal Revenue Service.
(33) "Landowner's Royalty Interest" means an interest in production, or
the proceeds therefrom, to be received free and clear of all costs of
development, operation, or maintenance, reserved by a landowner upon the
creation of an oil and gas Lease.
(34) "Leases" means full or partial interests in oil and gas leases,
oil and gas mineral rights, fee rights, licenses, concessions, or other
rights under which the holder is entitled to explore for and produce oil
and/or gas, and further includes any contractual rights to acquire any
such interest.
(35) "Limited Partners" means the persons signing the Subscription
Agreement as Limited Partners, the Managing General Partner to the
extent of any optional subscription under 3.03(b)(2) of the
Partnership Agreement, the Investor General Partners upon the conversion
of their Investor General Partner Units to Limited Partner interests
pursuant to 6.01 (c) of the Partnership Agreement, and any other persons
who are admitted to the Partnership as additional or substituted Limited
Partners. All Limited Partners will be of the same class and have the
same rights; provided, however, Limited Partners who were formerly
Investor General Partners remain liable for Partnership obligations
incurred prior to the conversion of their Investor General Partner Units
to Limited Partner interests in the Partnership, as set forth in the
Partnership Agreement.
(36) "Managing General Partner" means Atlas Resources, Inc. or any
Person admitted to the Partnership as a general partner other than as an
Investor General Partner pursuant to the Partnership Agreement who is
designated to exclusively supervise and manage the operations of the
Partnership.
(37) "MCF" means one thousand cubic feet of natural gas.
(38) "Net Revenue Interest" means that percentage of revenues
attributable to the oil and gas rights subject to a particular Lease
which a party acquiring a Lease is entitled to receive by virtue of its
interest therein.
(39) "Offering Termination Date" means the date after the minimum
Partnership Subscription has been received on which the Managing General
Partner determines, in its sole discretion, the Partnership's
subscription period is closed and the acceptance of subscriptions
ceases, which shall not be later than December 31, 1997.
(40) "Operating Costs" means expenditures made and costs incurred in
producing and marketing oil or gas from completed wells, including, in
addition to labor, fuel, repairs, hauling, materials, supplies, utility
charges and other costs incident to or therefrom, ad valorem and
severance taxes, insurance and casualty loss expense, and compensation
to well operators or others for services rendered in conducting such
operations. Subject to the foregoing, Operating Costs also include
reworking, workover, subsequent equipping and similar expenses relating
to any well.
(41) "Operator" means Atlas, as operator of Partnership Wells in
Pennsylvania, Atlas Energy as operator of Partnership Wells in Ohio and
Atlas or an Affiliate as operator of Partnership Wells in other areas of
the United States.
(42) "Organization Costs" means all costs of organizing the offering,
including, but not limited to, expenses for printing, engraving,
mailing, charges of transfer agents, registrars, trustees, escrow
holders, depositaries, engineers and other experts, expenses of
qualification of the sale of the securities under Federal and State law,
including taxes and fees, accountants' and attorneys' fees and other
front-end fees.
(43) "Organization and Offering Costs" means all costs of organizing
and selling the offering including, but not limited to, total
underwriting and brokerage discounts and commissions (including fees of
the underwriters' attorneys), expenses for printing, engraving, mailing,
salaries of employees while engaged in sales activities, charges of
transfer agents, registrars, trustees, escrow holders, depositaries,
engineers and other experts, expenses of qualification of the sale of
the securities under federal and state law, including taxes and fees,
accountants' and attorneys' fees and other front-end fees. (44)
"Overriding Royalty Interest" means an interest in the oil and gas
produced pursuant to a specified oil and gas lease or leases, or the
proceeds from the sale thereof, carved out of the Working Interest, to
be received free and clear of all costs of development, operation, or
maintenance.
(45) "Participants" means the Managing General Partner to the extent of
its optional subscription under 3.03(b)(2) of the Partnership Agreement,
the Limited Partners and the Investor General Partners.
(46) "Partners" means the Managing General Partner, the Investor
General Partners and the Limited Partners.
(47) "Partnership" means Atlas-Energy for the Nineties-Public #6 Ltd.,
the Pennsylvania limited partnership formed pursuant to the Partnership
Agreement.
(48) "Partnership Agreement" means the Amended and Restated Certificate
and Agreement of Limited Partnership, including all Exhibits thereto, as
set forth in Exhibit (A) to this Prospectus.
(49) "Partnership Net Production Revenues" means gross revenues
after deduction of the related Operating Costs, Direct Costs,
Administrative Costs and all other Partnership costs not specifically
allocated.
(50) "Partnership Subscription" means the aggregate Agreed
Subscriptions of the parties to the Partnership Agreement; provided,
however, with respect to Participant voting rights under the
Partnership Agreement, the term "Partnership Subscription" shall be
deemed not to include the Managing General Partner's required
subscription under 3.03(b)(1) of the Partnership Agreement.
(51) "Partnership Well" means a well, some portion of the revenues from
which is received by the Partnership.
(52) "Person" means a natural person, partnership, corporation,
association, trust or other legal entity.
(53) "Program" means one or more limited or general partnerships or
other investment vehicles formed, or to be formed, for the primary
purpose of exploring for oil, gas and other hydrocarbon substances or
investing in or holding any property interests which permit the
exploration for or production of hydrocarbons or the receipt of such
production or the proceeds thereof.
(54) "Prospect" means an area covering lands which are believed by the
Managing General Partner to contain subsurface structural or
stratigraphic conditions making it susceptible to the accumulations of
hydrocarbons in commercially productive quantities at one or more
Horizons. The area, which may be different for different Horizons, shall
be designated by the Managing General Partner in writing prior to the
conduct of Partnership operations and shall be enlarged or contracted
from time to time on the basis of subsequently acquired information to
define the anticipated limits of the associated hydrocarbon reserves and
to include all acreage encompassed therein. A "Prospect" with respect to
a particular Horizon may be limited to the minimum area permitted by
state law or local practice, whichever is applicable, to protect against
drainage from adjacent wells if the well to be drilled by the
Partnership is to a Horizon containing Proved Reserves. Subject to the
foregoing sentence, with respect to the Clinton/Medina geological
formation in Ohio and Pennsylvania
"Prospect" shall be deemed the drilling or spacing unit.
(55) "Proved Reserves" means the estimated quantities of crude oil,
natural gas, and natural gas liquids which geological and engineering
data demonstrate with reasonable certainty to be recoverable in future
years from known reservoirs under existing economic and operating
conditions, i.e., prices and costs as of the date the estimate is made.
Prices include consideration of changes in existing prices provided only
by contractual arrangements, but not on escalations based upon future
conditions.
(i) Reservoirs are considered proved if economic producibility is
supported by either actual production or conclusive formation test. The
area of a reservoir considered proved includes (a) that portion
delineated by drilling and defined by gas-oil and/or oil-water contacts,
if any; and (b) the immediately adjoining portions not yet drilled, but
which can be reasonably judged as economically productive on the basis
of available geological and engineering data. In the absence of
information on fluid contacts, the lowest known structural occurrence of
hydrocarbons controls the lower proved limit of the reservoir.
(ii) Reserves which can be produced economically through application
of improved recovery techniques (such as fluid injection) are included
in the "proved" classification when successful testing by a pilot
project, or the operation of an installed program in the reservoir,
provides support for the engineering analysis on which the project or
program was based.
(iii) Estimates of proved reserves do not include the following: (a)
oil that may become available from known reservoirs but is classified
separately as "indicated additional reserves"; (b) crude oil, natural
gas, and natural gas liquids, the recovery of which is subject to
reasonable doubt because of uncertainty as to geology, reservoir
characteristics, or economic factors; (c) crude oil, natural gas, and
natural gas liquids, that may occur in undrilled prospects; and (d)
crude oil, natural gas, and natural gas liquids, that may be recovered
from oil shales, coal, gilsonite and other such sources.
(56) "Proved Developed Oil and Gas Reserves" means reserves that can be
expected to be recovered through existing wells with existing equipment
and operating methods. Additional oil and gas expected to be obtained
through the application of fluid injection or other improved recovery
techniques for supplementing the natural forces and mechanisms of
primary recovery should be included as "proved developed reserves" only
after testing by a pilot project or after the operation of an installed
program has confirmed through production response that increased
recovery will be achieved.
(57) "Proved Undeveloped Reserves" means reserves that are expected to
be recovered from new wells on undrilled acreage, or from existing
wells where a relatively major expenditure is required for recompletion.
Reserves on undrilled acreage shall be limited to those drilling units
offsetting productive units that are reasonably certain of production
when drilled. Proved reserves for other undrilled units can be claimed
only where it can be demonstrated with certainty that there is
continuity of production from the existing productive formation. Under
no circumstances should estimates for proved undeveloped reserves be
attributable to any acreage for which an application of fluid injection
or other improved recovery technique is contemplated, unless such
techniques have been proved effective by actual tests in the area and in
the same reservoir.
(58) "Roll-Up" means a transaction involving the acquisition, merger,
conversion or consolidation, either directly or indirectly, of the
Partnership and the issuance of securities of a Roll-Up Entity. Such
term does not include: (a) a transaction involving securities of the
Partnership that have been listed for at least twelve months on a
national exchange or traded through the National Association of
Securities Dealers Automated Quotation National Market System; or (b) a
transaction involving the conversion to corporate, trust or association
form of only the Partnership if, as a consequence of the transaction,
there will be no significant adverse change in any of the following:
voting rights, the term of existence of the Partnership, the Managing
General Partner's compensation and the Partnership's investment
objectives.
(59) "Roll-Up Entity" means a partnership, trust, corporation or other
entity that would be created or survive after the successful completion
of a proposed roll-up transaction.
(60) "Sales Commissions" means all underwriting and brokerage discounts
and commissions incurred in the sale of Units in the Partnership payable
to registered broker-dealers, excluding the Dealer-Manager fee,
reimbursement for bona fide accountable due diligence expenses and
wholesaling fees.
(61) "Selling Agents" means those broker-dealers selected by the Dealer-
Manager which will participate in the offer and sale of the Units.
(62) "Sponsor" means any person directly or indirectly instrumental in
organizing, wholly or in part, a program or any person who will manage
or is entitled to manage or participate in the management or control of
a program. "Sponsor" includes the managing and controlling general
partner(s) and any other person who actually controls or selects the
person who controls 25% or more of the exploratory, development or
producing activities of the program, or any segment thereof, even if
that person has not entered into a contract at the time of formation of
the program. "Sponsor" does not include wholly independent third parties
such as attorneys, accountants, and underwriters whose only compensation
is for professional services rendered in connection with the offering of
units. Whenever the context so requires, the term "sponsor" shall be
deemed to include its affiliates.
(63) "Spud" means with respect to any well the commencement of the first
boring of the hole for the well for which a "spudding bit" may be used,
or such other meaning as is generally accepted in the oil and gas
industry.
(64) "Shut-In" means temporary cessation of operation of a producing
well; such as down time for repair and maintenance or due to the lack of
market for production or as a result of a decrease in the price of gas
the Managing General Partner has ceased producing all or a portion
of the gas from the well.
(65) "Subscription Agreement" means an execution and subscription
instrument in the form attached as Exhibit (I-B) to the Partnership
Agreement.
(66) "Subordinated Interest" means an equity interest in a program
issued to a person, without payment of full consideration, after the
attainment of certain specified performance by the program.
(67) "Tangible Costs"or "Capital Expenditures" means those costs
associated with the drilling and completion of oil and gas wells which
are generally accepted as capital expenditures pursuant to the
provisions of the Internal Revenue Code; and includes all costs of
equipment, parts and items of hardware used in drilling and completing
a well, and those items necessary to deliver acceptable oil and gas
production to purchasers to the extent installed downstream from the
wellhead of any well and which are required to be capitalized pursuant
to applicable provisions of the Code and regulations promulgated
thereunder.
(68) "Tax Matters Partner" means the Managing General Partner.
(69) "Units" or "Units of Participation" means the Limited Partner
interests and the Investor General Partner interests purchased by
Participants in the Partnership under the provisions of 3.03 and its
subsections of the Partnership Agreement.
(70) "Working Interest" means an interest in an oil and gas leasehold
which is subject to some portion of the Cost of development, operation,
or maintenance.
SUMMARY OF PARTNERSHIP AGREEMENT
NOTE: THE RIGHTS AND OBLIGATIONS OF THE MANAGING GENERAL PARTNER AND THE
PARTICIPANTS ARE GOVERNED BY THE PARTNERSHIP AGREEMENT, A COPY OF WHICH
IS ATTACHED AS EXHIBIT (A) TO THIS PROSPECTUS. NO PROSPECTIVE
PARTICIPANT SHOULD SUBSCRIBE TO THE PARTNERSHIP WITHOUT FIRST THOROUGHLY
REVIEWING SUCH PARTNERSHIP AGREEMENT. THE FOLLOWING IS A SUMMARY OF
CERTAIN PROVISIONS IN THE PARTNERSHIP AGREEMENT NOT COVERED ELSEWHERE IN
THIS PROSPECTUS.
RESPONSIBILITY OF MANAGING GENERAL PARTNER
The Managing General Partner will have the exclusive management and
control of all aspects of the business of the Partnership. (See
4.02(b) of the Partnership Agreement.) No Participant, including the
Investor General Partners, will have any voice in the day-to-day
business operations of the Partnership. (See 4.03(a)(2) of the
Partnership Agreement.) The Managing General Partner is authorized to
delegate and subcontract its duties under the Partnership Agreement to
others, including entities related to it. (See 4.02(c)(3)(a) of the
Partnership Agreement.)
LIABILITIES OF GENERAL PARTNERS, INCLUDING INVESTOR GENERAL PARTNERS
General Partners, including Investor General Partners, will not be
protected by limited liability for Partnership activities. The Investor
General Partners will be jointly and severally liable for all
obligations and liabilities to creditors and claimants, whether arising
out of contract or tort, in the conduct of Partnership operations. (See
4.05(b) of the Partnership Agreement.)
If an Investor General Partner is called upon to pay an additional
Capital Contribution to the Partnership and fails to pay such required
Capital Contribution when due, the remaining Investor General Partners,
pro rata, must pay such defaulting Investor General Partner's share of
Partnership liabilities and obligations. In that event, the remaining
Investor General Partners will have a first and preferred lien on the
defaulting Investor General Partner's interest in the Partnership to
secure payment of the amount in default plus interest at the legal rate;
will be entitled to receive 100% of the defaulting Investor General
Partner's cash distributions directly from the Partnership until the
amount in default is recovered in full plus interest at the
legal rate; and may commence legal action to collect the amount due plus
interest at the legal rate. (See 3.05(b) of the Partnership Agreement.)
The Managing General Partner maintains general liability insurance. (See
4.02(c)(1)(vi) of the Partnership Agreement.) In addition, the Managing
General Partner and Atlas Group have agreed to indemnify each of the
Investor General Partners for obligations related to casualty and
business losses which exceed available insurance coverage and
Partnership net assets. (See 4.05(b) of the Partnership Agreement.)
LIABILITY OF LIMITED PARTNERS
The Partnership will be governed by the Pennsylvania Revised Uniform
Limited Partnership Act under which a Limited Partner will not be liable
to third parties for the obligations of the Partnership unless he is
also an Investor General Partner or, in addition to the exercise of his
rights and powers as a Limited Partner, such person takes part in the
control of the business of the Partnership. (See 4.05(c) of the
Partnership Agreement.)
Under Pennsylvania law, the Limited Partners should have no liability to
the Partnership in excess of their respective Capital Contributions to
the Partnership and their share of the Partnership's assets and
undistributed income, except generally to the extent of (i) a failure to
make a required Capital Contribution, and (ii) for a period of two
years, any Capital Contributions "wrongfully" returned to a Limited
Partner in violation of the Partnership Agreement or Pennsylvania law,
with interest thereon, including but not limited to any distribution to
the Limited Partners to the extent that, after giving effect to such
distribution, all liabilities of the Partnership, other than liabilities
to the Participants on account of their contributions and to the
Managing General Partner, exceed Partnership assets. Participants will
not be obligated to restore any negative balances which exist in their
Capital Accounts after liquidation of their interests in the
Partnership. (See 3.04(a) of the Partnership Agreement.)
AMENDMENTS
Amendments to the Partnership Agreement may be proposed by the Managing
General Partner or by Participants whose Agreed Subscriptions equal 10%
or more of the Partnership Subscription and adopted upon the affirmative
vote of Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription. The Partnership Agreement may also be amended
by the Managing General Partner for certain purposes, but no amendment
materially and adversely affecting the Participants can be made without
the consent of the Participants who are so affected. In addition, the
Managing General Partner may not, without the affirmative vote of
Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription, change the investment and business purpose of
the Partnership or cause the Partnership to engage in activities outside
the stated business purposes of the Partnership through joint ventures
with other entities. (See1.04 and 8.05 of the Partnership Agreement.)
NOTICE
Notice to Participants runs from the date of mailing and is binding on
the Participants irrespective of whether or not the notice is in fact
received by them. The notice periods are frequently quite short (a
minimum of 15 business days) and apply to matters which may seriously
affect the Participants' rights. Except where the Partnership Agreement
expressly requires affirmative approval, any Participant who fails to
timely respond to a request by the Managing General Partner for approval
of or concurrence in a proposed action will conclusively be deemed to
have approved such action. (See8.01(d) and 8.01(e) of the Partnership
Agreement.)
VOTING RIGHTS
Generally, Participants will be entitled to vote with respect to any and
all Partnership matters at any time a meeting of the Partners is called
by the Managing General Partner or Participants owning 10% or more of
the Partnership Subscription. Provided, however, except for the special
voting rights discussed below, the exercise by Limited Partners of these
voting rights is subject to the prior legal determination that the
limited liability of the Limited Partners will not be adversely
affected, unless in the opinion of counsel to the Partnership, such
legal determination is not necessary to maintain the limited liability
of the Limited Partners. The Investor General Partners may exercise
these rights, whether or not the Limited Partners can participate in the
vote, if they represent the requisite percentage of the Participants
necessary to take such action. (See 4.03(c) of the Partnership
Agreement.)
Each Unit is entitled to one vote on all matters; each fractional Unit
is entitled to that fraction of one vote equal to the fractional
interest in the Unit. In addition to the foregoing, at any time upon the
request of Participants whose Agreed Subscriptions equal 10% or more of
the Partnership Subscription, Participants whose Agreed Subscriptions
equal a majority of the Partnership Subscription may, without the
concurrence of the Managing General Partner or its Affiliates, vote
without a meeting to:
(1) amend the Partnership Agreement; provided however, any such
amendment may not increase the duties or liabilities of any Participant
or the Managing General Partner or increase or decrease the profit or
loss sharing or required Capital Contribution of any Participant or the
Managing General Partner without the approval of such Participant or the
Managing General Partner. Furthermore, any such amendment may not affect
the classification of Partnership income and loss for federal income tax
purposes without the unanimous approval of all Participants; (2)
dissolve the Partnership;
(3) remove the Managing General Partner and elect a new Managing
General Partner;
(4) elect a new Managing General Partner if the Managing General
Partner elects to withdraw from the Partnership;
(5) remove the Operator and elect a new Operator;
(6) approve or disapprove the sale of all or substantially all of the
assets of the Partnership; and
(7) cancel any contract for services with the Managing General Partner,
or the Operator or their Affiliates without penalty upon 60 days notice.
The Managing General Partner and its officers and directors and
Affiliates may also subscribe for Units in the Partnership on the same
basis as Limited Partners or Investor General Partners, except that they
are not required to pay the Dealer-Manager fee, Sales Commissions or due
diligence reimbursements. Also, the Managing General Partner and its
Affiliates may buy up to 10% of the Units, which will not be applied
towards the minimum Partnership Subscription required for the
Partnership to begin operations. Subject to the foregoing, any
subscription by the Managing General Partner or its officers, directors
or Affiliates will dilute the voting rights of the Participants.
However, any Units owned by the Managing General Partner or its
Affiliates will not be included with respect to the issues set forth in
(3) and (5) above, and any other transaction between the Managing
General Partner or its Affiliates and the Partnership. In determining
the requisite percentage in interest of Units necessary to approve any
Partnership matter on which the Managing General Partner and its
Affiliates may not vote or consent, any Units owned by the Managing
General Partner and its Affiliates shall not be included. (See
4.03(c)(1) of the Partnership Agreement.)
ACCESS TO RECORDS
Participants will have access to all records of the Partnership
including a list of the Participants, after adequate notice, at any
reasonable time, except that logs, well reports and other drilling and
operating data may be kept confidential for reasonable periods of time.
A Participant's ability to obtain the Participant List is subject to
additional requirements set forth in the Partnership Agreement. (See
4.03(b)(5) and 4.03(b)(6) of the Partnership Agreement.)
WITHDRAWAL OF MANAGING GENERAL PARTNER
At any time commencing ten years after the Offering Termination Date and
the Partnership's primary drilling activities, the Managing General
Partner may voluntarily withdraw as Managing General Partner for
whatever reason upon giving 120 days' written notice of withdrawal to
the Participants. The withdrawing Managing General Partner is not
required to provide a substitute Managing General Partner. However, a
new Managing General Partner may be substituted by the affirmative vote
of Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription.
If Atlas would withdraw as Managing General Partner of the Partnership
and the Participants failed to elect to continue the Partnership and to
designate a substituted Managing General Partner of the Partnership, the
Partnership would terminate and dissolve and adverse tax and other
consequences could result. If the Partnership was dissolved the
Participants may receive a distribution of direct property interests. As
joint interest owners, Limited Partners would have joint and several
liability for the obligations or liabilities arising out of joint owner
operations and might find it desirable to obtain insurance protection or
dispose of the property interests, which may be difficult. To reduce
this risk the Managing General Partner will attempt upon liquidation and
dissolution to use its best efforts to sell the Partnership's properties
or to cause some type of entity which would preserve the limited
liability of the former Limited Partners, such as a liquidating trust,
to be established to hold the Partnership's properties. However, even
if the properties were transferred to a liquidating trust upon
dissolution of the Partnership, it might be difficult for the
liquidating trust to deal with such assets and realize their full value.
For example, to replace the management provided by the Managing General
Partner, the trustee of the liquidating trust would need the services of
professional operators. Further, after dissolution and the completion of
payments to third party creditors, the Managing General Partner has
priority in liquidation for any claims of indebtedness before the
Participants. Such distributions may also have adverse income tax
consequences to the Participants. (See Risk Factors - Special Risks of
the Partnership Unlimited Liability of Investor General Partners" and
"Tax Aspects Disposition of Partnership Interests".)
The Managing General Partner may not partially withdraw a property
interest held by the Partnership in the form of a Working Interest in
the Partnership Wells equal to or less than its respective interest in
the revenues of the Partnership unless such withdrawal is necessary to
satisfy the bona fide request of its creditors or approved by
Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription. (See4.04(a)(3) and 6.03 of the Partnership
Agreement.)
REMOVAL OF OPERATOR
The Operator may be replaced at any time upon 60 days advance written
notice to the outgoing Operator by the Managing General Partner acting
on behalf of the Partnership upon the affirmative vote of Participants
whose Agreed Subscriptions equal a majority of the Partnership
Subscription. (See 4.04(a)(4) of the Partnership Agreement and
"Summary of Drilling and Operating Agreement".)
TERM AND DISSOLUTION
The Partnership will continue in existence for 50 years unless earlier
terminated by certain Final Terminating Events, including an election by
the Managing General Partner or the affirmative vote of Participants
whose Agreed Subscriptions equal a majority of the Partnership
Subscription. The Partnership may terminate on the occurrence of various
events, other than a Final Terminating Event, but a successor limited
partnership will automatically be formed under those circumstances. (See
7.01 and 7.02 of the Partnership Agreement.)
SUMMARY OF DRILLING AND OPERATING AGREEMENT
Atlas will serve as the Operator pursuant to the Drilling and Operating
Agreement, Exhibit (II) to the Partnership Agreement, for wells situated
in Pennsylvania, Atlas Energy will serve as the Operator for any wells
situated in Ohio and Atlas or an Affiliate will serve as the Operator
for any wells situated in other areas of the United States. The Operator
may be replaced at any time upon sixty days advance written notice to
the outgoing Operator by the Managing General Partner acting on behalf
of the Partnership upon the affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription.
The Drilling and Operating Agreement provides a number of material
provisions, including, without limitation, those set forth below.
(1) The right of the Operator to resign after five years.
(2) The right of the Operator of a Partnership well beginning three
years after the well is placed into production to retain $200 per month
to cover future plugging and abandonment of such well, although Atlas
historically has never done this after only three years.
(3) The grant of a first lien and security interest in the wells
and related production to secure payment of amounts due to the Operator
by the Partnership.
(4) The prescribed insurance coverage to be maintained by the
Operator.
(5) Limitations on the Operator's authority to incur extraordinary
costs with respect to producing wells in excess of $5,000 per well.
(6) Restrictions on the Partnership's ability to transfer its
interest in fewer than all wells, unless such transfer is of an equal
undivided interest in all wells.
(7) The limitation of the Operator's liability except for
violations of law, negligence or misconduct by it, its employees, agents
or subcontractors and breach of the Drilling and Operating Agreement.
(8) The excuse for nonperformance by the Operator due to force
majeure.
The foregoing is only a summary of some of the many provisions of the
proposed form of Drilling and Operating Agreement, and is qualified in
its entirety by reference to such form attached to the Partnership
Agreement as Exhibit (II). No prospective Participant should subscribe
to the Partnership without first thoroughly reviewing the Drilling and
Operating Agreement.
REPORTS TO INVESTORS
The Partnership will provide the reports set forth below to investors
and to the state securities commissions which request the reports.
(1) Commencing with the 1997 calendar year, the Partnership will
provide each Participant an annual report within 120 days after the
close of the calendar year, and commencing with the 1998 calendar year,
a report within 75 days after the end of the first six months of its
calendar year, containing, except as otherwise indicated, at least the
following information:
(a) Audited financial statements of the Partnership, including a
balance sheet and statements of income, cash flow and Partners' equity
prepared in accordance with generally accepted accounting principles.
Semiannual reports need not be audited. (See .03(b)(1)(a) of the
Partnership Agreement.)
(b) A summary of the total fees and compensation paid by the
Partnership to the Managing General Partner, the Operator and their
Affiliates. In addition, Participants shall be provided the percentage
that the annual unaccountable, fixed payment reimbursements for
Administrative Costs bears to annual Partnership revenues. (See
4.03(b)(1)(b) of the Partnership Agreement.)
(c) A description of each Prospect owned by the Partnership, including
the Cost, location, number of acres and the Working Interest except
succeeding reports need contain only material changes, if any. (See
4.03(b)(1)(c) of the Partnership Agreement.)
(d) A list of the wells drilled or abandoned by the Partnership
(indicating whether each of such wells has or has not been completed),
and a statement of the Cost of each well completed or abandoned. (See
4.03(b)(1)(d) of the Partnership Agreement.)
(e) A description of all farmins and joint ventures. (See 4.03(b)(1)(e)
of the Partnership Agreement.)
(f) A schedule reflecting the total Partnership costs, the costs paid
by the Managing General Partner and the costs paid by the Participants,
the total Partnership revenues, the revenues received or credited to the
Managing General Partner and the revenues received or credited to the
Participants. (See 4.03(b)(1)(f) of the Partnership Agreement.)
(2) The Partnership will, within 75 days after the end of each
fiscal year, transmit to each Partner such information as may be needed
to enable such Partner to file his federal and state income tax returns.
(See 4.03(b)(2) of the Partnership Agreement.)
(3) Beginning January 1, 1999, and every year thereafter, Atlas
shall provide a computation of the total oil and gas Proved Reserves of
the Partnership and the dollar value thereof. The reserve computations
shall be based upon engineering reports prepared by the Managing General
Partner and reviewed by an Independent Expert. (See 4.03(b)(3) of the
Partnership Agreement.)
(4) The cost of all such reports described above will be paid by the
Partnership as Direct Costs. (See 4.03(b)(4) of the Partnership
Agreement.)
REPURCHASE OBLIGATION
Beginning in 2001, Participants may present their interests for purchase
by the Managing General Partner but are not obligated to do so. The
Managing General Partner is obligated to purchase up to 5% of the Units
in each calendar year unless the Managing General Partner determines, in
its sole discretion, that it does not have the necessary cash flow or it
is unable to borrow funds for such purpose on terms it deems reasonable,
in which case the Managing General Partner may suspend its repurchase
obligation by so notifying the Participants. Following such notice, if
such notice is given, the Managing General Partner will not be
contractually obligated to purchase any interests presented for
repurchase. In addition, the Managing General Partner's repurchase of
Units may be conditioned, in the Managing General Partner's sole
discretion, on the receipt of an opinion of counsel that
such transfers will not cause the Partnership to be treated as a
"publicly traded partnership" under the Code.
The Managing General Partner will not purchase less than one Unit of a
Participant's interest unless such lesser amount represents the entire
amount of the Participant's interest. If less than all interests
presented at any time are to be purchased, the Participants whose
interests are to be purchased will be selected by lot and in any
calendar year the Managing General Partner will not purchase more than
5% of the Units. The Managing General Partner may waive these
limitations in its sole discretion, other than the limitations on its
purchasing more than 5% of the Units in any calendar year.
The Managing General Partner's obligation to purchase interests
presented for purchase may be discharged for the benefit of the Managing
General Partner by a third party or an Affiliate. The interests of the
selling Participant will be transferred to the party who pays for it. A
selling Participant will be required to deliver an executed assignment
of his interests, together with such other documentation as the Managing
General Partner may reasonably request.
The Managing General Partner will make a written offer to repurchase a
Participant's interest in cash in every year beginning in 2001 within
120 days of the Partnership reserve report prepared by the Managing
General Partner and reviewed by an Independent Expert (the "Reserve
Report") discussed below. A Participant may accept the repurchase offer
by a written acceptance; ^ and no presentment will be considered
effective until after the payment has been made to the Participant in
cash. In addition, in accordance with Treas. Reg. 1.7704-1(f), no
repurchase shall occur until at least 60 calendar days after the
Participant notifies the Partnership in writing of the Participant's
intention to exercise the repurchase right.
The amount attributable to Partnership reserves will be determined based
upon the last Reserve Report. Beginning in 1999 and every year
thereafter, the reserve computations will be based on an engineering
report prepared by the Managing General Partner and reviewed by an
Independent Expert. The Participants will be provided a computation of
the total oil and gas Proved Reserves of the Partnership and the present
worth thereof as determined by the Managing General Partner. In making
this estimate of the present worth of future net revenues, the Managing
General Partner will employ a discount rate equal to 10%, use a constant
price for the oil and base the price of gas upon the existing gas
contract(s) at the time of the repurchase.
The purchase price to be paid to the Participant will be based upon the
Participant's share of the net assets and liabilities of the Partnership
and allocated pro rata to each Participant based upon his Agreed
Subscription. The purchase price will include the sum of the following
items: (i) an amount based on 70% of the present worth of future net
revenues from the Partnership's Proved Reserves, determined as described
above, (ii) Partnership cash on hand, (iii) prepaid expenses and
accounts receivable of the Partnership, less a reasonable amount for
doubtful accounts, and (iv) the estimated market value of all assets of
the Partnership not separately specified above, determined in accordance
with standard industry valuation procedures. There will be deducted from
the foregoing sum the following items: (i) an amount equal to all
Partnership debts, obligations and other liabilities, including accrued
expenses, and (ii) any distributions made to the Participants between
the date of the request and the actual payment; provided, however, that
if any cash distributed was derived from the sale, subsequent to the
request, of oil, gas or other mineral production or of a producing
property owned by the Partnership, for purposes of determining the
reduction of the purchase price, such distributions shall be discounted
at the same rate used to take into account the risk factors employed to
determine the present worth of the
Partnership's Proved Reserves (see above). The purchase price may be
further adjusted by the Managing General Partner for estimated changes
therein from the date of the Reserve Report to the date of payment of
the purchase price to the Participants: (i) by reason of production or
sales of, or additions to, reserves and lease and well equipment, sale
or abandonment of Leases, and similar matters occurring prior to payment
of the purchase price to the selling Participant, and (ii) by reason of
any of the following occurring prior to payment of the purchase price to
the selling Participant: changes in well performance, increases or
decreases in the market price of oil, gas or other minerals, revision of
regulations relating to the importing of hydrocarbons, changes in
income, ad valorem and other tax laws (e.g., material variations in the
provisions for depletion) and similar matters.
Because of the difficulty in accurately estimating oil and gas reserves,
the purchase price may not reflect the full value of the Partnership
property to which it relates. Such estimates are merely appraisals of
value and may not correspond to realizable value. There can be no
assurance that the revenues received by the Participant prior to the
repurchase offer and the purchase price paid for the interests will be
equal to the original price paid for such interests. The Participants
are not obligated to tender their Units for repurchase and a Participant
should recognize that he may realize a greater return if he retains
rather than sells the Units as provided herein. The Managing General
Partner has and will incur similar presentment obligations in connection
with other Programs which it or its Affiliates may sponsor. There can be
no assurance that the Managing General Partner will have any funds
available to repurchase any interests presented. Also, the sale of
interests pursuant to the Managing General Partner's repurchase
obligation will be a taxable event for the Participants, and gain or
loss generally will be recognized for federal income tax purposes. (See
"Tax Aspects - Disposition of Partnership Interests".)
TRANSFERABILITY OF UNITS
IN GENERAL
Transferability of the Units is restricted. The restrictions on
transferability are as follows: (i) no sale, exchange, transfer or
assignment may be made if it would, in the opinion of counsel for the
Partnership, result in the termination of the Partnership within the
meaning of Section 708 of the Code, or would result in materially
adverse tax consequences to the Partnership or the Partners; and (ii) no
sale, assignment, pledge, hypothecation or transfer of a Partnership
interest other than by operation of law may be made in the absence of an
effective registration of the Units under the Securities Act of 1933, as
amended, and qualification under applicable state securities law or an
opinion of counsel acceptable to the Managing General Partner that such
registration and qualification are not required. The Managing General
Partner and the Partnership have no obligation to register the Units for
resale by any Participant.
Subject to the foregoing and to the consent of the Managing General
Partner the Partnership will recognize the assignment of one or more
whole Units unless the Participant owns less than a whole Unit, in which
case his entire fractional interest must be assigned. The Managing
General Partner may delay the recognition of the assignment until the
last day of the calendar month in which it is made.
Such assignment must be properly executed by the assignor and assignee
on a form satisfactory to the Managing General Partner and its terms
must not contravene those of the Partnership Agreement. An assignee of
Units only has the right to receive all or part of the share of profit,
loss, income, gain, cash distributions or return of capital to which
the assignor of the Units would otherwise be entitled. The Costs
associated with a transfer or assignment are to be borne by the assignor
Partner.
An assignee may become a substituted Limited Partner or Investor General
Partner only upon meeting certain further conditions, which include: (i)
the assignor gives the assignee such right; (ii) the Managing General
Partner consents to such substitution, which consent shall be in the
Managing General Partner's absolute discretion; (iii) the assignee pays
to the Partnership all costs and expenses incurred in connection with
such substitution; and (iv) the assignee executes and delivers such
instruments, in form and substance satisfactory to the Managing General
Partner, necessary or desirable to effect such substitution and to
confirm the agreement of the assignee to be bound by all terms and
provisions of the Partnership Agreement. A substitute Limited Partner
or Investor General Partner is entitled to all of the rights
attributable to full ownership of the assigned Units, including the
right to vote.
The Partnership will amend its records at least once each calendar year
to effect the substitution of substituted Participants. Any transfer
permitted where the assignee does not become a substituted Limited
Partner or Investor General Partner will be effective as of midnight of
the last day of the calendar month in which it is made, or, at the
Managing General Partner's election, 7:00 A.M. of the following day.
CONVERSION OF UNITS BY INVESTOR GENERAL PARTNERS
The Investor General Partners will have their Units automatically
converted into Limited Partner interests and thereafter become Limited
Partners of the Partnership after substantially all of the Partnership
Wells have been drilled and completed. (See "Summary of the Offering
Actions to be Taken by Managing General Partner to Reduce Risks of
Additional Payments by Investor General Partners".)
PLAN OF DISTRIBUTION
COMMISSIONS
The Units will be offered on a "best efforts" basis by Anthem
Securities, Inc., a registered broker-dealer which is a member of the
NASD and a wholly-owned subsidiary of Atlas Group, acting as Dealer
Manager in all states other than Minnesota and New Hampshire, and by
other selected registered broker-dealers, which are members of the NASD,
acting as Selling Agents. Anthem Securities became an NASD member firm
in April, 1997, and has participated as Dealer-Manager in one other
Atlas sponsored Program. Bryan Funding, Inc., a member of the NASD,
will serve as Dealer-Manager in the states of Minnesota and New
Hampshire, and will receive the same compensation as Anthem Securities,
Inc. with respect to sales in those states. Best efforts means that the
Dealer-Manager and broker-dealers will not guarantee the sale of a
certain amount of Units.
The Dealer-Manager will manage and oversee the offering of the Units as
described above and will receive from the Partnership on each Unit sold
to investors a 2.5% Dealer-Manager fee, a 7.5% Sales Commission and a
.5% reimbursement of the Selling Agents' bona fide accountable due
diligence expenses. The 7.5% Sales Commission and the .5% reimbursement
of accountable due diligence expenses will be reallowed to the Selling
Agents. Atlas is also utilizing the services of three wholesalers. One
of the wholesalers is associated with Anthem Securities, Inc., and the
other two are associated with Bryan Funding, Inc. The 2.5% Dealer-
Manager fee will be reallowed to the wholesalers for Agreed
Subscriptions obtained through such wholesalers' effort.
The offering will be made in compliance with Rule 2810 of the NASD
Conduct Rules and all compensation to broker-dealers and wholesalers,
regardless of the source, will be limited to 10% of the gross proceeds
of the offering, plus the reimbursement for bona fide accountable due
diligence expenses of .5% on each Agreed Subscription.
All Dealer-Manager fees, Sales Commissions, due diligence reimbursements
and wholesaling fees will be aggregated and paid by the Managing General
Partner as a part of Organization and Offering Costs and will not be
deducted from subscription proceeds. Notwithstanding, the broker-dealers
and officers and directors of the Managing General Partner may purchase
Units in the offering on the same terms and conditions as other
investors net of Dealer-Manager fees, Sales Commissions, due diligence
reimbursements and wholesaling fees. Any Units purchased by the Managing
General Partner and its Affiliates will be held for investment and not
for resale.
Subject to the receipt of the minimum Partnership Subscription and the
checks having cleared the banking system, Dealer-Manager fees, Sales
Commission and accountable due diligence reimbursements will be paid to
the broker-dealers approximately every two weeks until the Offering
Termination Date. (See "Terms of the Offering - Partnership Closings and
Escrow".)
INDEMNIFICATION
The Dealer-Managers may be deemed underwriters as that term is defined
in the Securities Act of 1933, as amended, and the Sales Commissions and
Dealer-Manager fees may be deemed underwriting compensation. Atlas and
the Dealer-Managers have agreed to indemnify each other, and it is
anticipated that the Dealer-Managers and each Selling Agent will agree
to indemnify each other against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
SALES MATERIAL
The Managing General Partner will utilize sales material in addition to
the Prospectus in connection with the offering of the Units. The sales
material will consist of a brochure entitled "Atlas-Energy for the
Nineties-Public #6 Ltd." and Atlas Energy Group, Inc.'s corporate
profile. (See "Management".) The Managing General Partner has not
authorized the use of other sales material and the offering of Units is
made only by means of this Prospectus. Sales material must be preceded
or accompanied by this Prospectus. Although the information contained in
the sales material does not conflict with any of the information set
forth herein, such material does not purport to be complete. Sales
material should not be considered a part of or incorporated into this
Prospectus or the Registration Statement of which this Prospectus is a
part.
ATLAS ALSO HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY REPRESENTATION OR
STATEMENT TO BROKER-DEALERS, CONSULTANTS, ANY PROSPECTIVE SUBSCRIBER OR
ANY OTHER PERSON WHICH IS NOT CONSISTENT WITH THIS PROSPECTUS.
ACCORDINGLY, PROSPECTIVE SUBSCRIBERS SHOULD NOT BASE ANY INVESTMENT
DECISION ON ANY SUCH REPRESENTATION BY ANY PERSON.
LEGAL OPINIONS
Kunzman & Bollinger, Inc., has issued its opinion to the Managing
General Partner regarding the validity and due issuance of the Units
offered hereby and its opinion on material tax consequences to
individual investors in the Partnership, including an opinion that,
under current federal income tax law, it is more likely than not that
the Partnership will be classified as a partnership for federal income
tax purposes and not as an association taxable as a corporation.
Notwithstanding, the factual statements herein are those of the Managing
General Partner, and counsel has not given any opinions with respect to
any of the tax or other legal aspects of this offering
except as expressly set forth above.
EXPERTS
The financial statements included in this Prospectus for the
Partnership, Atlas Group (formerly AEGH) and subsidiaries as of July 31,
1996 and 1995, and for Atlas as of July 31, 1996 and 1995, have been
audited by McLaughlin & Courson, as of the date indicated in their
reports thereon which appear elsewhere herein. The financial statements
have been included in reliance on their reports given on their authority
as experts in auditing and accounting.
The geological report of United Energy Development Consultants, Inc.,
which is not affiliated with Atlas and its Affiliates, appearing in
"Proposed Activities - Information Regarding Currently Proposed
Prospects" has been included herein in reliance upon the authority of
United Energy Development Consultants, Inc. as an expert with respect to
the matters covered by such report and in the giving of such report.
LITIGATION
The Managing General Partner knows of no litigation pending or
threatened to which the Managing General Partner or the Partnership is
subject or may be a party, which it believes would have a material
adverse effect upon the Partnership or its business, and no such
proceedings are known to be contemplated by governmental authorities or
other parties. Notwithstanding, on November 22, 1995, Winston
Management Services Corporation ("Winston") and Professional Planning &
Technologies, Inc. ("PPT") filed a complaint in the United States
District Court for the District of Rhode Island against Atlas Resources,
Inc., Atlas Energy Group, Inc., and others. The gist of the complaint
is for the alleged breach of contract relating to the interpretation of
broker-dealer agreements entered into between Winston and PPT and Atlas
and Atlas Energy for the marketing of interests in limited partnerships
in 1987, 1988, 1989 and 1990. The complaint seeks compensatory damages
in an unspecified amount in excess of $50,000 plus an unspecified amount
of punitive damages together with interest and costs of the lawsuit.
Atlas believes the lawsuit is without merit and intends to fight it
vigorously.
ADDITIONAL INFORMATION
A Registration Statement (together with amendments thereto, hereinafter
referred to as the "Registration Statement") on Form SB-2 with respect
to the Units offered hereby has been filed on behalf of the Partnership
with the Securities and Exchange Commission, Washington, D.C. 20549,
under the Securities Act of 1933, as amended. This Prospectus does not
contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted pursuant to the rules and
regulations of the Securities and Exchange Commission. Reference is made
to such Registration Statement, including exhibits, for further
information. Statements contained in this Prospectus as to the contents
of any document are not necessarily complete, and, in each instance,
reference is hereby made to the copy of such document filed as an
exhibit to the Registration Statement for full statements of the
provisions thereof, and each such statement in this Prospectus is
qualified in all respects by this reference. Copies of any materials
filed as a part of the Registration Statement, including the Tax Opinion
as set forth on Exhibit 8, may be obtained from the Securities and
Exchange Commission by payment of the requisite fees therefor and may be
examined in the offices of the Commission without charge. In addition, a
copy of the Tax Opinion may be obtained by prospective investors or
their advisors from the Managing General Partner at no cost. The
delivery of this Prospectus at any time does not imply that the
information contained herein is correct as of any time subsequent
to the date hereof.
Atlas is fully aware of its obligations under Rule 13e-4 of the
Securities Exchange Act of 1934. It is fully the intention of Atlas to
comply with Rule 13e-4 and to cause the Partnership to comply with Rule
13e-4.
FINANCIAL INFORMATION CONCERNING THE MANAGING GENERAL
PARTNER, ATLAS GROUP AND THE PARTNERSHIP
Financial information concerning the Partnership, Atlas and Atlas Group
(formerly AEGH) is reflected in the following financial statements. The
financial statements of Atlas Group are included in this Prospectus
because both Atlas and Atlas Group have agreed to indemnify each
Investor General Partner from any liability incurred in connection with
the Partnership which is in excess of such Investor General Partner's
share of Partnership assets. Since July, 1995, Atlas is the wholly
owned subsidiary of AIC, Inc. which is the wholly owned subsidiary of
Atlas Group. (See "Management".)
THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SECURITIES OF, NOR IS
THE INVESTOR ACQUIRING AN INTEREST IN ATLAS, ATLAS ENERGY, ATLAS GROUP,
THEIR AFFILIATES, OR ANY OTHER ENTITY OTHER THAN THE PARTNERSHIP.
AUDITED FINANCIAL STATEMENT
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
A PENNSYLVANIA LIMITED PARTNERSHIP JULY
1, 1997
INDEPENDENT AUDITORS' REPORT
To the Partners
Atlas-Energy for the Nineties-Public #6 Ltd.
A Pennsylvania Limited Partnership
We have audited the accompanying statement of assets and partner's
capital of Atlas-Energy for the Nineties-Public #6 Ltd., A Pennsylvania
Limited Partnership as of July 1, 1997. This financial statement is the
responsibility of the Partnership's management. Our responsibility is
to express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statement is free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for
our opinion.
In our opinion, the financial statement referred to above presents
fairly, in all material respects, the financial position of AtlasEnergy
for the Nineties-Public #6 Ltd., A Pennsylvania Limited Partnership as
of July 1, 1997 in conformity with generally accepted accounting
principles.
/s/ McLaughlin & bCourson
Pittsburgh, Pennsylvania
July 11, 1997
BALANCE SHEET
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
A PENNSYLVANIA LIMITED PARTNERSHIP
JULY 1, 1997
ASSETS
Receivable from managing general partner $100
PARTNER'S CAPITAL
Partner's capital $100
See notes to financial statement
NOTES TO FINANCIAL STATEMENT
ORGANIZATION AND DESCRIPTION OF BUSINESS
Atlas-Energy for the Nineties-Public #6 Ltd. (the "Partnership"),
is a Pennsylvania limited partnership which will include Atlas
Resources, Inc. ("Atlas"), of Pittsburgh, Pennsylvania, as Managing
General Partner and Operator, and subscribers to Units as either Limited
Partners or Investor General Partners. The Partnership will be funded
to drill gas wells which are proposed to be located primarily in
Mercer County, Pennsylvania, although the Managing General Partner has
reserved the right to use up to 15% of the Partnership Subscription to
drill wells in other areas of the United States.
Subscriptions at a cost of $10,000 per unit will be sold through
wholesalers and broker-dealers including Anthem Securities, Inc., an
affiliated company which will be compensated in an amount equal to 10%
of the subscription cost plus a .5% accountable due diligence fee.
Commencement of Partnership operations is subject to the receipt of
minimum Partnership subscriptions of $1,000,000 (to a maximum of
$10,000,000 by December 31, 1997).
PROPOSED ACCOUNTING POLICIES
Financial statements are to be prepared in accordance with
generally accepted accounting principles.
The Partnership proposes to use the successful efforts method of
accounting for oil and gas producing activities. Costs to acquire
mineral interests in oil and gas properties and to drill and equip wells
are capitalized.
Capitalized costs are to be expensed at unit cost rates calculated
annually based on the estimated volume of recoverable gas and the
related costs.
FEDERAL INCOME TAXES
The Partnership is not treated as a taxable entity for federal
income tax purposes. Any item of income, gain, loss, deduction or
credit flows through to the partners as though each partner had incurred
such item directly. As a result, each partner must take into account
his pro rata share of all items of partnership income and deductions in
computing his federal income tax liability. Many provisions of the
federal income tax laws are complex and subject to various
interpretations.
PARTICIPATION IN REVENUES AND COSTS
Atlas and the other partners will generally participate in
revenues and costs in the following manner:
OTHER
ATLAS PARTNERS
Organization and offering costs 100 % 0 %
Lease costs 100 % 0 %
Revenues 25 % 75 %
Direct operating costs 25 % 75 %
Intangible drilling costs 0 % 100 %
Tangible costs 14 % 86 %
Tax deductions:
Intangible drilling and development costs 0 %
100 %
Depreciation 14 % 86 %
Depletion allowances 25 % 75 %
TRANSACTIONS WITH ATLAS AND ITS AFFILIATES
The Partnership intends to enter into the following significant
transactions with Atlas and its affiliates for wells in the Mercer
County Area.
Drilling contracts to drill and complete Partnership wells at
an anticipated cost of $37.39 per foot on completed wells.
Administrative costs at $75 per well per month
Well supervision fees initially of $275 per well per month
plus the cost of third party materials and services
Gas transportation and marketing charges at competitive rates
which currently is 29 cents per MCF
Anthem Securities is an affiliated company.
PURCHASE COMMITMENT
Subject to certain conditions, investor partners may present their
interests beginning in 2001 for purchase by Atlas. Atlas is not
obligated to purchase more than 5% of the units in any calendar year.
SUBORDINATION OF MANAGING GENERAL PARTNER'S REVENUE SHARE
Atlas will subordinate a part of its partnership revenues in an
amount up to 10% of production revenues of the Partnership net of
related operating costs, administrative costs and well supervision fees
to the receipt by participants of cash distributions from the
Partnership equal to at least 10% of their agreed subscriptions,
determined on a cumulative basis, in each of the first five years of
Partnership operations, commencing with the first distribution of
revenues to the Participants.
INDEMNIFICATION
In order to limit the potential liability of the investor general
partners, Atlas and The Atlas Group, Inc. (parent company of Atlas) have
agreed to indemnify each investor general partner from any liability
incurred which exceeds such partner's share of Partnership assets.
AUDITED CONSOLIDATED BALANCE SHEETS
ATLAS RESOURCES, INC.
JULY 31, 1996
INDEPENDENT AUDITORS' REPORT
Board of Directors Atlas Resources, Inc.
Coraopolis, Pennsylvania
We have audited the accompanying consolidated balance sheets of
Atlas Resources, Inc. and subsidiary as of July 31, 1996 and 1995. These
financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the balance
sheets are free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the
balance sheets. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall balance sheet presentation. We believe that our
audits of the balance sheets provide a reasonable basis for our opinion.
In our opinion, the consolidated balance sheets referred to above
present fairly, in all material respects, the financial position of
Atlas Resources, Inc. as of July 31, 1996 and 1995, in conformity with
generally accepted accounting principles.
/s./ McLaughlin & Courson
Pittsburgh, Pennsylvania
November 11, 1996
CONSOLIDATED BALANCE SHEETS
ATLAS RESOURCES, INC.
JULY 31, 1996 AND 1995
ASSETS
1996 1995
CURRENT ASSETS
Cash $ 9,303,958 $ 1,717,898
Trade accounts and notes receivable 2,080,317 1,639,274
Costs in excess of billings of $-0- in
1996 and 1995 on uncompleted contracts 244,856 291,379
Inventories 449,193 495,063
Prepaid expenses and other current assets 214,174
145,602
TOTAL CURRENT ASSETS 12,292,498 4,289,216
OIL AND GAS PROPERTIES
Oil and gas wells and leases 28,359,364 23,195,675
Less accumulated depreciation, depletion and
amortization 9,108,310 6,454,328
19,251,054 16,741,347
PROPERTY, PLANT AND EQUIPMENT
Land 161,000 161,000
Building 1,636,990 1,636,990
Equipment 778,844 778,237
Gathering lines 983,560
994,953 3,560,394 3,571,180
Less accumulated depreciation 2,022,300 1,838,518
1,538,094 1,732,662
$33,081,646 $22,763,225
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 2,053,489 $
2,428,135
Working interests and royalties payable 3,501,547
1,741,474
Billings in excess of costs of $1,851,449 in 1996
and $1,486,813 in 1995 on uncompleted contracts 10,405,362
5,455,355
Current maturities on long-term debt 185,714
246,014
TOTAL CURRENT LIABILITIES 16,146,112 9,870,978 LONG-
TERM DEBT, net of current maturities 928,572 1,114,286 OTHER
LONG-TERM LIABILITIES 191,804 40,880
ADVANCES FROM PARENT COMPANY 4,491,561 4,548,448
STOCKHOLDERS' EQUITY
Capital stock - stated value $10 per share: Authorized - 500
shares;
issued and outstanding - 200 shares 2,000 2,000
Retained earnings 11,321,597 7,186,633
11,323,597 7,188,633
$33,081,646 $22,763,225
See notes to financial statements
NOTES TO AUDITED CONSOLIDATED BALANCE SHEETS
ATLAS RESOURCES, INC.
1. DESCRIPTION OF BUSINESS
Atlas Resources, Inc. (the Company) and its subsidiary ARD
Investments, are engaged in the exploration
for development, production, and marketing of natural gas and oil
primarily in the Appalachian Basin Area.
In addition, the Company performs contract drilling and well operation
services.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
AFFILIATED COMPANIES
Atlas Resources, Inc. is a wholly owned subsidiary of AIC,
Inc. which is a wholly owned subsidiary
of AEG Holdings, Inc. (AEGH) formerly Atlas Energy Group, Inc. (parent
company) and is affiliated with other
companies controlled by AEGH. The Company's operations are dependent
upon the resources and services
provided by the parent company.
INVESTMENT IN OIL AND GAS PARTNERSHIPS
The Company's proportionate share of the assets and
liabilities of affiliated oil and gas
partnerships are included in the balance sheets.
INVENTORIES
Inventories, consisting of oil and gas field materials and
supplies, are stated at the lower of
first-in, first-out cost or market.
METHOD OF ACCOUNTING FOR OIL AND GAS PROPERTIES
The Company uses the successful efforts method of accounting
for oil and gas producing activities.
Property acquisition costs are capitalized when incurred. Geological
and
geophysical costs and delay
rentals are expensed when incurred. Development costs, including
equipment and intangible drilling costs
related to both producing wells and developmental dry holes, are
capitalized. All capitalized costs are
generally depreciated and depleted on the unit-of-production method
using
estimates of proven reserves. Oil
and gas properties are periodically assessed and when unamortized costs
exceed expected future net cash
flows, a loss is recognized by recording a charge to income.
On the sale or retirement of oil and gas properties, the cost
and related accumulated
depreciation, depletion and amortization are eliminated from the
property
accounts, and the resultant gain
or loss is recognized.
For tax purposes, intangible drilling costs are being written
off as incurred. The greater of
cost or percentage depletion as defined by the Internal Revenue Code, is
used as a deduction from income.
PROPERTY, PLANT AND EQUIPMENT
Land, building, equipment and gathering lines are recorded at
cost. Major additions and
betterments are charged to the property accounts while replacements,
maintenance and repairs which do not
improve or extend the life of the respective assets are expensed
currently. As property is retired or
otherwise disposed of, the cost of the property is removed from the
asset
account, accumulated depreciation
is charged with an amount equivalent to the depreciation provided, and
the difference, if any, is charged or
credited to income. Depreciation is computed over the estimated useful
life of the assets generally by the
straight-line method.
REVENUE RECOGNITION
The Company sells interests in oil and gas wells and retains
therefrom a working interest and/or
an overriding royalty in the producing wells. The income from the
working interests and royalties is
recorded when the natural gas and oil are produced.
The Company also contracts to drill oil and gas wells. The
income from these contracts is
recorded upon substantial completion of the well.
Contract costs include all direct material and labor costs and
those indirect costs related to
contract performance, such as indirect labor, supplies, tools, repairs,
and depreciation costs. General and
administrative costs are charged to expense as incurred. Provisions for
estimated losses on uncompleted
contracts are made in the period in which such losses are determined.
Costs in excess of amounts billed are classified as current
assets under costs in excess of
billings on uncompleted contracts. Billings in excess of costs are
classified under current liabilities as
billings in excess of costs on uncompleted contracts. Contract
retentions are included in accounts
receivable.
USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting
principles requires management to make estimates and assumptions that
affect the amounts reported in the
financial statements and accompanying notes. Actual results could
differ from those estimates.
3. INCOME TAXES
Atlas Resources, Inc. and its subsidiary file a consolidated
federal income tax return with AEG
Holdings, Inc. (parent company). Atlas Resources, Inc.'s allocations
for federal income taxes are included
in advances from parent company.
4. LONG-TERM DEBT
Long-term debt on Atlas Resources, Inc.'s books at July 31, 1996
and 1995 consists of the following:
1996 1995
Note payable to bank in monthly installments
through August 2002 of $15,476, plus interest at or below
prime rate plus one-half percent (1/2%) (7.88% and 8.125%
at July 31, 1996 and 1995, respectively). Secured by
building and equipment having a net book value of
$1,245,216 at July 31, 1996. The July 31, 1995 balance
sheet has been reclassified to reflect the transfer
of this liability to Atlas Resources, Inc. $1,114,286
$1,300,000
Other -0- 60,300
1,114,286 1,360,300
Less current maturities (185,714) (246,014)
$ 928,572 $1,114,286
Aggregate maturities on long-term debt are as follows:
YEAR ENDING JULY 31
1997 $ 185,714
1998 185,714
1999 185,714
2000 185,715
2001 185,715
$928,572
5. REVOLVING CREDIT AND TERM LOAN AGREEMENT
A revolving credit and term loan agreement enables the Company or
AEGH to borrow $5,000,000 on a
revolving credit basis until August 1, 1997. A commitment fee at a rate
of three-eights of one percent
(3/8%) is charged on the unused portion. During the revolving credit
period, loans bear interest at or
below prime rate plus one-quarter percent (1/4%). The interest rate at
July 31, 1996 was 8.50%. The
Company may convert any outstanding borrowings into a 5-year term loan,
repayable in equal monthly
installments, plus interest at or below prime rate plus one-half percent
(1/2%). At July 31, 1996 AEGH
(parent company) had borrowed $4,750,000 under the revolving credit
line.
The revolving credit line and term loan agreements are secured by
certain assets of the Company.
6. OPTION ON BUILDING
AEGH (parent company) has granted the majority shareholders of AEGH
an option to acquire the land and
building utilized as the Company's headquarters for a period of six
months commencing on August 15, 2003 and
ending February 15, 2004 for $500,000.
7. COMMITMENTS
Atlas Resources, Inc., as general partner in several oil and gas
limited partnerships, and AEGH have
agreed to indemnify each investor general partner from any liability
incurred which exceeds such partner's
share of partnership assets. Management believes that any such
liabilities that may occur will be covered
by insurance and, if not covered by insurance, will not result in a
significant loss to AEGH and its
subsidiaries.
Subject to certain conditions, investor general partners in certain
oil and gas limited partnerships
may present their interests beginning in 1996 for purchase by Atlas
Resources, Inc., as managing general
partner. Atlas Resources, Inc. is not obligated to purchase more than
5%
of the units in any calendar year.
Atlas Resources, Inc., as managing general partner in a certain oil
and gas limited partnership, has
also agreed to subordinate its share of production revenues to the
receipt by investor partners of cash
distributions equal to at least 10% of their subscriptions in each of
the
first five years of partnership
operations.
8. FUTURES CONTRACTS
The Company enters into natural gas futures contracts to hedge its
exposure to changes in natural gas
prices. At any point in time, such contracts may include regulated
NYMEX
futures contracts and non-
regulated over-the-counter futures contracts with qualified
counterparties. The futures contracts employed
by the Company are commitments to purchase or sell natural gas at a
future date and generally cover one
month periods for up to 18 months in the future. Realized gains
(losses)
are recorded in the income
accounts in the month(s) that the futures contracts are intended to
hedge. Unrealized gains (losses) are
deferred until realized. Deferred gains (losses) were $115,240 and $-
0at
July 31, 1996 and 1995,
respectively.
9. IMPAIRMENT OF ASSETS
In 1996 the Company evaluated the carrying value of long-lived
assets for impairment of value in
accordance with the Statement of Financial Accounting Standards No. 121
"Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of." The
Company recognized a noncash write-down
in the carrying value of oil and gas properties of $1,700,000 which
primarily was a result of the sustained
decrease in gas and oil prices. The write-down was determined based
upon
the estimated future net cash
flows from the properties.
10. NATURAL GAS AND OIL PRODUCING ACTIVITIES (UNAUDITED)
The supplementary information summarized below presents the results
of natural gas and oil activities
in accordance with SFAS No. 69, "Disclosures About Oil and Gas Producing
Activities."
(1) PRODUCTION COSTS
The following table presents the costs incurred relating to natural
gas and oil production activities:
1996 1995
Capitalized costs at July 31:
Capitalized costs $28,359,364 $23,195,675
Accumulated depreciation and depletion (9,108,310)
(6,454,328)
Net capitalized costs $19,251,054 $16,741,347
Costs incurred during the year ended July 31:
Property acquisition costs - proved undeveloped properties
$ 15,000 $ -0-
Development costs $ 6,863,689 $ 4,669,626
Property acquisition costs include costs to purchase, lease or
otherwise acquire a property.
Development costs include costs to gain access to and prepare
development well locations for drilling, to
drill and equip development wells and to provide facilities to extract,
treat, gather and store oil and gas.
(2) RESULTS OF OPERATIONS FOR PRODUCING ACTIVITIES
The following table presents the results of operations related to
natural gas and oil production for
the years ended July 31, 1996 and 1995:
1996 1995
Revenues $ 4,011,924 $ 2,991,813
Production costs (248,743) (185,356)
Depreciation and depletion (2,653,982) (1,072,962)
Income tax expense (122,726) (364,315)
Results of operations from producing activities $
986,473 $ 1,369,180
Depreciation, depletion and amortization of natural gas and oil
properties are provided on the unit-
of-production method.
10. NATURAL GAS AND OIL PRODUCING ACTIVITIES (UNAUDITED) (CONTINUED)
(3) RESERVE INFORMATION
The information presented below represents estimates of proved
natural gas and oil reserves. Proved
developed reserves represent only those reserves expected to be
recovered from existing wells and support
equipment. Proved undeveloped reserves represent proved reserves
expected to be recovered from new wells
after substantial development costs are incurred. All reserves are
located in Eastern Ohio and Western
Pennsylvania.
1996 1995
NATURAL GAS OIL NATURAL GAS OIL
(MCF) (BARRELS) (MCF)
(BARRELS)
Proved developed and undeveloped reserves:
Beginning of period 57,211,350 13,596 50,226,287
7,386
Revision of previous estimates 2,320,454 (5,713)
(684,821) 6,816
Extensions, discoveries and other additions 11,720,742 -
0-
21,535,654 -0-
Production (1,720,056) (1,551) (1,499,244) (606)
Sales of minerals in place (12,673,528) -0-
(12,366,526) -0-
End of period 56,858,962 6,332 57,211,350
13,596
Proved developed reserves:
Beginning of period 17,378,470 13,596
14,603,407 7,386
End of period 20,276,092 6,332 17,378,470
13,596
(4) STANDARD MEASURE OF DISCOUNTED FUTURE CASH FLOWS
Management cautions that the standard measure of discounted future
cash flows should not be viewed as
an indication of the fair market value of natural gas and oil producing
properties, nor of the future cash
flows expected to be generated therefrom. The information presented
does
not give recognition to future
changes in estimated reserves, selling prices or costs and has been
discounted at an arbitrary rate of 10%.
Estimated future net cash flows from natural gas and oil reserves based
on selling prices and costs at July
31, 1996 and July 31, 1995 price levels are as follows:
1996 1995
Future cash inflows $121,474,607 $128,363,532
Future production costs (27,878,540) (27,812,401)
Future development costs (34,814,000) (41,574,000)
Future income tax expense (11,560,671) (11,406,096)
Future net cash flow 47,221,396 47,571,035
10% annual discount for estimated timing of cash flows
(32,795,257) (35,761,224)
Standardized measure of discounted future net cash flows $
14,426,139 $ 11,809,811
Summary of changes in the standardized measure of discounted future
net cash flows:
1996 1995
Sales of gas and oil produced - net $ (986,473) $
(1,369,180)
Net changes in prices, production and development costs
(3,426,850) (3,969,631)
Extensions, discoveries, and improved recovery, less
related costs 178,794 58,615
Development costs incurred 4,686,481 5,081,411
Revisions of previous quantity estimates 1,555,239
(330,491)
Sales of minerals in place (464,705) (1,216,889)
Accretion of discount 1,633,496 1,006,878
Net change in income taxes (559,654) 676,087
Net increase (decrease) 2,618,328 (63,200)
Beginning of period 11,809,811 11,873,011
End of period $ 14,426,139 $11,809,811
ATLAS RESOURCES, INC., ,
CONSOLIDATED BALANCE SHEET (UNAUDITED), ,
AS OF MAY 31, 1997, ,
, ,
1997 1996
ASSETS
CURRENT ASSETS, ,
Cash and cash equivalents, $420,980 , $332,109
Trade accounts receivable, 2,742,332 , 2,866,783
Accounts receivable from affiliates, 2,143,125 , 0
Costs in excess of billings on
uncompleted contracts, 0 , 407,849
Inventories, 7,498 , 496,391
Other current assets, 97,936 , 20,701
TOTAL CURRENT ASSETS, 5,621,871 , 4,123,833
, ,
OIL AND GAS PROPERTIES, ,
Oil and gas wells and leases, 30,552,053 ,28,558,094
Less accumulated depreciation,
depletion and amortization, 11,255,305 , 7,700,321
NET OIL & GAS PROPERTIES, 19,296,748 ,20,857,773
, ,
OTHER ASSETS, 133,123 , 2,613
, ,
PROPERTY, PLANT AND EQUIPMENT, ,
Land, 174,385 , 161,000
Buildings, 2,371,519 , 1,641,671
Equipment, 864,954 , 779,253
Gathering Lines, 1,050,124 , 978,879
Sub-total, 4,460,982 , 3,560,803
Less accumulated depreciation, 2,155,348 , 1,974,462
NET PROPERTY, PLANT & EQUIPMENT, 2,305,634 , 1,586,341
, ,
TOTAL ASSETS, $27,357,376 $26,570,560
, , =======================
, ,
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES, ,
Accounts payable and accrued expenses, $2,985,198 $3,705,281
Working interests and royalties payable, 5,527,672 4,900,058
Billings in excess of costs
on uncompleted contracts, 950,425 , 1,356,043
Current maturities on long-term debt:, 185,714 , 185,714
Income taxes payable, 538,145 , 885,868
TOTAL CURRENT LIABILITIES, 10,187,154 11,032,964
, ,
LONG-TERM DEBT, net of current maturities, 773,810 , 959,524
, ,
ADVANCES FROM AFFILIATED COMPANIES, 1,650,000 , 584,193
, ,
DEFERRED CREDITS AND OTHER LONG-TERM LIABILITIES, 83,000 , 708,801
, ,
STOCKHOLDERS' EQUITY, ,
Capital stock, stated value $10.00:
Authorized - 500 shs; Issued - 200 shs., 2,000 , 2,000
Retained earnings, 14,661,412 ,13,283,078
TOTAL STOCKHOLDERS' EQUITY, 14,663,412 ,13,285,078
, ,
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY, $27,357,376 $26,570,560
, =======================
,
ATLAS RESOURCES, INC., ,
CONSOLIDATED STATEMENT OF INCOME (UNAUDITED), ,
TEN MONTHS ENDED MAY 31, 1997, ,
INCOME 1997 1996
Sales-gas wells, $16,682,188 , $16,302,706
Purchased gas revenues, 3,765 , 1,470
Well operating fees, 1,707,477 , 1,841,788
Working interest and royalties, 3,778,551 , 3,213,021
Non-recurring income (Note 2), 0 , 2,059,179
Interest Income, 72,635 , 84,495
Other, 351,404 , 542,066
TOTAL INCOME, 22,596,020 , 24,044,725
, ,
COST OF SALES AND OTHER EXPENSES, ,
Costs of sales-gas wells, 13,278,965 , 11,881,671
Cost of purchased gas, 2,189 , 1,365
Cost of well operations, 744,887 , 298,533
General and administrative, 892,997 , 2,003,215
Interest expense, 133,192 , 181,431
Depreciation, depletion and amortization, 2,200,745 , 1,381,937
TOTAL COST OF SALES AND OTHER EXPENSES, 17,252,975 , 15,748,152
, ,
INCOME BEFORE INCOME TAXES, 5,343,045 , 8,296,573
, ,
INCOME TAXES, 1,503,230 , 2,202,302
, ,
NET INCOME, $3,839,815 , $6,094,271
, , ========== ==========
, ,
, ,
ATLAS RESOURCES, INC., ,
CONSOLIDATED STATEMENT OF CASH FLOWS (UNAUDITED), ,
TEN MONTHS ENDED MAY 31, 1997, ,
, ,
1997 1996
NET CASH PROVIDED BY OPERATING ACTIVITIES, $(2,293,378), $ 8,144,146
, ,
CASH FLOW FROM INVESTING ACTIVITIES:, ,
Investment in oil and gas wells
and property, plant and equipment, (3,093,277), (5,352,042)
, ,
CASH FLOWS USED IN FINANCING ACTIVITIES:, ,
Borrowings from banks, (154,762), 1,084,938
Repayment of advances from affiliates, (2,841,561), (5,262,831)
Dividends to parent company, (500,000), 0
Net cash used in financing activities, (3,496,323), (4,177,893)
, ,
Net increase (decrease) in cash and
cash equivalents, (8,882,978), (1,385,789)
, ,
Cash and cash equivalents at beginning of year, 9,303,958 , 1,717,898
, ,
Cash and cash equivalents at end of period, $420,980 , $332,109
, , =============
===========
ATLAS RESOURCES, INC.
NOTE TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MAY 31, 1997
1. INTERIM FINANCIAL STATEMENTS
The consolidated financial statements as of May 31, 1997 and for the ten
months then ended have been
prepared by the management of the Company, without audit, pursuant to
the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been omitted
pursuant to such rules and regulations, although the Company believes
that the disclosures are adequate to
make the information presented not misleading. These consolidated
financial statements should be read in
conjunction with the audited July 31, 1996 and 1995 consolidated
financial statements. In the opinion of
management, all adjustments (consisting of only normal recurring
accruals) considered necessary for
presentation have been included.
2. The non-recurring income item in the period ended May 31, 1996
pertains to a settlement of certain
claims with Columbia Gas Transmission Corporation.
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
AEG HOLDINGS, INC.
JULY 31, 1996
INDEPENDENT AUDITORS' REPORT
Board of Directors
AEG Holdings, Inc.
Coraopolis, Pennsylvania
We have audited the accompanying consolidated statements of
financial position of AEG Holdings, Inc.
and subsidiaries as of July 31, 1996 and 1995, and the related
consolidated statements of income and cash
flows for the years then ended. These financial statements are the
responsibility of the Company's
management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards
require that we plan and perform the audit to obtain reasonable
assurance
about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the
accounting principles used and significant estimates made by management,
as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects,
the financial position of AEG Holdings, Inc. as of July 31, 1996 and
1995, and the results of its operations
and its cash flows for the years then ended in conformity with generally
accepted accounting principles.
/s/McLaughlin & Courson
Pittsburgh, Pennsylvania
November 11, 1996
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
AEG HOLDINGS, INC.
JULY 31, 1996 AND 1995
ASSETS
1996 1995
CURRENT ASSETS
Cash and cash equivalents $13,914,902 $8,224,721
Trade accounts and notes receivable, less allowance for doubtful
accounts of $200,000 in 1996 and $100,000 in 1995 6,073,523
3,278,178
Other receivables 253,159 501,174
Costs in excess of billings of $-0- in 1996 and 1995 on uncompleted
contracts 238,555 293,372
Inventories 449,193 495,063
Prepaid expenses and other current assets 792,573
409,969
TOTAL CURRENT ASSETS 21,721,905 13,202,477
OIL AND GAS PROPERTIES
Oil and gas wells and leases 31,927,784 28,185,190 Less
accumulated depreciation, depletion and amortization
12,211,283 10,518,131
19,716,501 17,667,059
OTHER ASSETS 308,127 294,851
PROPERTY, PLANT AND EQUIPMENT
Land 380,568 359,193
Buildings 1,805,471 1,785,776
Equipment 1,168,561 1,025,609
Gathering lines 18,444,239 16,666,091
21,798,839 19,836,669
Less accumulated depreciation 13,331,940 11,695,999
8,466,899 8,140,670
$50,213,432 $39,305,057
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 6,008,372 $
5,007,209
Working interests and royalties payable 4,077,102
2,217,294
Billings in excess of costs of $2,011,277 in 1996 and $1,636,992
in 1995 on uncompleted contracts 10,412,624 5,472,266
Current maturities on long-term debt:
Subordinated notes payable to stockholders 1,669,661
1,461,795
Other 185,714 246,014
Income taxes payable 998,873 234,057
TOTAL CURRENT LIABILITIES 23,352,346 14,638,635
DEFERRED INCOME TAXES 655,000 1,330,000
LONG-TERM DEBT, net of current maturities:
Subordinated notes payable to stockholders 3,255,273
4,924,934
Other 5,678,572 5,864,286
OTHER LONG-TERM LIABILITIES 310,046 265,640
STOCKHOLDERS' EQUITY
Capital stock, no par; authorized 2,000,000 shares; issued 500,000
shares 1,250 1,250
Paid-in capital 560,093 560,093
Retained earnings 21,892,247 17,351,614
Treasury stock, at cost (137,419 shares and 140,919 shares,
respectively) (5,491,395)
(5,631,395)
16,962,195 12,281,562
$50,213,432 $39,305,057
See notes to consolidated financial statements
CONSOLIDATED STATEMENTS OF INCOME
AEG HOLDINGS, INC.
YEARS ENDED JULY 31, 1996 AND 1995
1996 1995
INCOME
Sales - gas wells $20,482,825 $22,707,513 Purchased
gas revenues 47,293,957 12,602,845 Well operating
fees 3,262,835 3,132,886 Gathering line charges
2,605,816 1,970,964
Working interests and royalties 4,796,736 3,903,888
Interest 236,210 151,749
Non-recurring income 4,370,000 -0
Other 426,225 198,925
83,474,604 44,668,770
COSTS OF SALES AND OTHER EXPENSES
Costs of sales - gas wells 16,898,962 19,216,912
Cost of purchased gas 47,326,785 12,987,224
Gathering line operation and maintenance 1,856,801
1,592,691
General and administrative 3,677,756 3,221,659
Interest:
Subordinated notes payable to stockholders 749,469
925,139
Other 304,973 268,162
Depreciation, depletion and amortization 3,961,725
2,711,514
Impairment of assets 2,370,000 -0-
77,146,471 40,923,301
INCOME BEFORE INCOME TAXES 6,328,133 3,745,469
INCOME TAXES
Current:
Federal 1,850,000 380,000
State 630,000 240,000
Deferred (675,000) 230,000 1,805,000
850,000
NET INCOME $ 4,523,133 $ 2,895,469
See notes to consolidated financial statements CONSOLIDATED
STATEMENTS OF CASH FLOWS
AEG HOLDINGS, INC.
YEARS ENDED JULY 31, 1996 AND 1995
1996 1995
Cash flows from operating activities:
Net income $ 4,523,133 $ 2,895,469
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation, depletion and amortization 3,961,725
2,711,514
Impairment of assets 2,370,000 -0-
Expense funded by issuance of capital stock 157,500
172,200
Other, net 14,700 (3,579)
Change in assets and liabilities:
Receivables (2,547,330) 1,180,462 Inventories
45,870 73,492 Prepaid expenses and other current assets
(382,604) (144,242)
Accounts payable and accrued expenses and
working interests and royalties payable 2,860,971
183,252
Uncompleted contract billings, net 4,995,175 515,791
Income taxes payable 764,816 (176,295)
Deferred income taxes (675,000) 230,000
Long-term liabilities 44,406 (88,481)
Net cash provided by operating activities 16,133,362
7,549,583
Cash flows used in investing activities:
Proceeds from sale of assets -0- 47,000
Investment in oil and gas wells and leases (6,745,226)
(4,753,547)
Liquidations of other assets, net (13,276) 6,091
Gathering line additions (1,778,148) (1,218,666) Other
property additions (184,022) (196,250)
Net cash used in investing activities (8,720,672)
(6,115,372)
Cash flows (used in) provided by financing activities:
Proceeds from long-term borrowings 4,750,000 6,050,000
Principal payments on long-term borrowings (4,935,714)
(4,000,000)
Principal payments on notes payable to stockholders (1,461,795)
(1,279,808)
Principal payments on other term loans (75,000)
(475,000)
Net cash (used in) provided by financing activities
(1,722,509) 295,192
Net increase in cash and cash equivalents 5,690,181 1,729,403
Cash and cash equivalents at beginning of year 8,224,721
6,495,318
Cash and cash equivalents at end of year $13,914,902 $
8,224,721
Additional Cash Flow Information:
Cash paid during the year for:
Interest $ 1,045,235 $ 1,196,345
Income taxes 1,715,184 796,295
See notes to consolidated financial statements
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AEG HOLDINGS, INC.
1. DESCRIPTION OF BUSINESS
AEG Holdings, Inc. (AEGH) was formed in July, 1995 to hold, through
its wholly owned subsidiary AIC,
Inc. also formed in July, 1995, Atlas Energy Group and its subsidiaries,
including Atlas Resources, Inc. and
Atlas Gas Marketing, Inc. The purpose of the reorganization is to
achieve more efficient concentration of
funds of the Atlas group of companies, thereby minimizing transaction
costs and maximizing returns on
investment vehicles. No changes in the consolidated assets, liabilities
or stockholders' equity occurred as
a result of the reorganization.
AEGH and subsidiaries are engaged in the exploration for,
development, production, and marketing of
natural gas and oil primarily in the Appalachian Basin area. In
addition, the Company performs contract
drilling and well operation services.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of
AEG Holdings, Inc., and its
subsidiaries. All significant intercompany accounts and transactions
have been eliminated in consolidation.
INVENTORIES
Inventories, consisting of oil and gas field materials and
supplies, are stated at the lower of
first-in, first-out cost or market.
METHOD OF ACCOUNTING FOR OIL AND GAS PROPERTIES
The Company uses the successful efforts method of accounting
for oil and gas producing activities.
Property acquisition costs are capitalized when incurred. Geological
and
geophysical costs and delay
rentals are expensed when incurred. Development costs, including
equipment and intangible drilling costs
related to both producing wells and developmental dry holes, are
capitalized. All capitalized costs are
generally depreciated and depleted on the unit-of-production method
using
estimates of proven reserves. Oil
and gas properties are periodically assessed and when unamortized costs
exceed expected future net cash
flows, a loss is recognized by recording a charge to income.
On the sale or retirement of oil and gas properties, the cost
and related accumulated
depreciation, depletion and amortization are eliminated from the
property
accounts, and the resultant gain
or loss is recognized.
For tax purposes, intangible drilling costs are being written
off as incurred. The greater of
cost or percentage depletion as defined by the Internal Revenue Code, is
used as a deduction from income.
PROPERTY, PLANT AND EQUIPMENT
Land, buildings, equipment and gathering lines are recorded at
cost. Major additions and
betterments are charged to the property accounts while replacements,
maintenance and repairs which do not
improve or extend the life of the respective assets are expensed
currently. As property is retired or
otherwise disposed of, the cost of the property is removed from the
asset
account, accumulated depreciation
is charged with an amount equivalent to the depreciation provided, and
the difference, if any, is charged or
credited to income. Depreciation is computed over the estimated useful
life of the assets generally by the
straight-line method.
REVENUE RECOGNITION
The Company sells interests in oil and gas wells and retains
therefrom a working interest and/or
overriding royalty in the producing wells. The income from the working
interests is recorded when the
natural gas and oil are produced.
The Company also contracts to drill oil and gas wells. The
income from these contracts is
recorded upon substantial completion of the well.
Contract costs include all direct material and labor costs and
those indirect costs related to
contract performance, such as indirect labor, supplies, tools, repairs,
and depreciation costs. General and
administrative costs are charged to expense as incurred. Provisions for
estimated losses on uncompleted
contracts are made in the period in which such losses are determined.
Costs in excess of amounts billed are classified as current
assets under costs in excess of
billings on uncompleted contracts. Billings in excess of costs are
classified under current liabilities as
billings in excess of costs on uncompleted contracts. Contract
retentions are included in accounts
receivable.
WORKING INTERESTS AND ROYALTIES
Revenues from working interests and royalties are recognized
when the natural gas and oil are
produced. For the year ended July 31, 1996, the Company recognized
working interest income of $3,800,437
and royalty income of $996,299. Working interest and royalty income
during the year ended July 31, 1995
amounted to $3,008,027 and $895,861, respectively.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
CASH EQUIVALENTS
For purposes of the statements of cash flows, the Company
considers all highly liquid investments
purchased with a maturity of three months or less to be cash
equivalents.
USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting
principles requires management to make estimates and assumptions that
affect the amounts reported in the
financial statements and accompanying notes. Actual results could
differ
from those estimates.
3. AFFILIATED OIL AND GAS PARTNERSHIPS
In connection with the sponsorship of oil and gas partnerships,
the Company is reimbursed by the
partnerships for certain operating and overhead costs incurred on their
behalf. These reimbursements
totalled approximately $320,000 and $265,000 during the years ended July
31, 1996 and 1995, respectively.
In addition, as part of its duties as well operator, the Company
receives
proceeds from the sale of oil and
gas and makes distributions to investors according to their working
interest in the related oil and gas
properties.
4. PLAN OF REORGANIZATION
On November 8, 1990 the Company adopted a plan of reorganization
whereby a substantial portion of the
common stock of the two majority shareholders would be purchased by the
Company and shares of the Company's
stock would be granted to certain key employees of the Company
(Management Investors) giving the Management
Investors control of the Company.
PURCHASE OF TREASURY SHARES AND NOTES PAYABLE TO STOCKHOLDERS
On November 14, 1990 the Company entered into an agreement
effective as of August 16, 1990 to
purchase 248,717 shares of common stock from its two majority
shareholders at $40.00 per share ($9,948,680).
The purchase price is evidenced by promissory notes bearing
interest at 13.5%. Quarterly
principal payments range from $100,574 on November 15, 1991 to a final
payment of $856,103 on November 15,
1998. Payments may be deferred or accelerated under certain
circumstances. Principal payments totaled
$1,461,795 and $1,279,808 during the years ended July 31, 1996 and 1995
respectively. Interest expense
amounted to $749,469 and $925,139 for the years ended July 31, 1996 and
1995, respectively.
The notes are subordinate to all direct and indirect debt,
past, present or future and all
obligations, if any, to make contributions to any employee stock
ownership plan now in existence or
hereinafter created.
The promissory notes are secured by warrants on the common
stock of the Company that are
exercisable upon an uncorrected event of default. At July 31, 1996 and
1995, the following warrants were
outstanding:
1996 1995
Number of shares 382,668 643,824
Exercise price 12.87 9.92
The Company has options to purchase, and the majority
shareholders had options to sell 131,425
shares of the Company's common stock at per share prices ranging from
$63.25 to $74.10 commencing on the
earlier of the satisfaction of all the Company's obligations under the
foregoing promissory notes or
November 14, 1999. The shareholders also had an option on November 14,
2004 to sell 87,356 shares to the
Company. The shareholder options to sell the 218,781 shares of common
stock to the Company were waived on
November 24, 1992 and the waiver has been retroactively applied in the
accompanying financial statements.
STOCK GRANTS
The Company has established a management employee stock option
consisting of an aggregate of
options to acquire 47,578 shares of common stock at $1.00 per share. No
options have been granted as of
July 31, 1996. The option will terminate August 15, 2012.
There are restrictions on the sale of the vested Management
Investor and ESOP shares of common
stock which include among other restrictions, that shares may not be
sold
until obligations to the majority
shareholders are satisfied. Shares offered for sale must first be
offered to the Company and then to other
shareholders before being offered to a third party. Further conditions
apply to sales that would result in
a third party owning 5% or more of the total shares of the Company.
5. OTHER LONG-TERM DEBT AND CREDIT FACILITY
Long-term debt at July 31, 1996 and 1995 consists of the following:
1996 1995
Revolving credit loan payable to bank $4,750,000
$4,750,000
Note payable to bank in monthly installments through August 2002
of $15,476, plus interest at or below prime rate plus one-half
percent (1/2%) (7.88% and 8.125% at July 31, 1996 and 1995,
respectively). Secured by building and equipment having a net
book value of $1,245,216 at July 31, 1996 1,114,286
1,300,000
Other -0- 60,300
5,864,286 6,110,300
Less current maturities (185,714) (246,014)
$5,678,572 $5,864,286
The revolving credit and term loan agreement enables the
Company to borrow $5,000,000 on a
revolving basis until August 1, 1997. A commitment fee at a rate of
three-eights of one percent (3/8%) is
charged on the unused portion. During the revolving credit period,
loans
bear interest at or below prime
rate plus one-quarter percent (1/4%). The interest rate at July 31,
1996
was 8.50%. The agreement provides
that the Company may convert any outstanding borrowings into a 5 year
term loan, payable in equal monthly
installments, plus interest at or below prime rate plus one-half percent
(1/2%).
The loan agreements are secured by certain assets of the
Company.
6. MATURITIES ON LONG-TERM DEBT
Aggregate maturities on long-term debt at July 31, 1996 for the
next five fiscal years are as follows:
FISCAL SUBORDINATED OTHER
YEAR NOTES PAYABLE LONG-TERM
ENDING TO STOCKHOLDERS DEBT TOTAL
1997 $1,669,661 $ 185,714 $1,855,375
1998 1,907,084 1,135,714 3,042,798
1999 1,348,189 1,135,714 2,483,903
2000 -0- 1,135,714 1,135,714
2001 -0- 1,135,714 1,135,714
7. INCOME TAXES
Net deferred tax liabilities consist of the following:
JULY 31,
1996 1995
Exploration and development costs expensed
for income tax reporting $1,210,000 $1,782,000 Tax
credits (280,000) (601,000)
Other (275,000) 149,000
$ 655,000 $1,330,000
A reconciliation between the Company's effective tax rate and the
U.S. statutory rate is as follows:
1996 1995
U.S. statutory rate 34.0 % 34.0 %
State income taxes net of federal income tax benefit 4.5
5.8
Depletion (3.5) (7.0)
Nonconventional fuels and alternative minimum tax credits
(9.2)
(10.0)
Other 2.7 (0.1)
Effective tax rate 28.5 % 22.7 %
8. PROFIT SHARING PLAN
The Company maintains a defined contribution 401 (K) profit sharing
plan covering substantially all of
its employees. The Plan Administrator set the maximum allowable
employee
contribution at the lesser of 15%
of their compensation or $9,500 and $9,240 for the calendar years 1996
and 1995, respectively. The Company
matches employee contributions by contributing an amount equal to 50%
and 30% of each employee's
contribution for the calendar years 1996 and 1995, respectively.
Pension expense under the 401 (K) profit
sharing plan was $118,083 and $67,974 for the years July 31, 1996 and
1995, respectively.
9. OPTION ON BUILDING
The majority shareholders were granted an option to acquire the
land and building utilized as the
Company's headquarters for a period of six months commencing on August
15, 2003 and ending February 15, 2004
for $500,000.
10. CHANGES IN STOCKHOLDERS' EQUITY
Changes in stockholders' equity during the years ended July
31, 1996 and 1995 were as follows:
CAPITAL PAID-IN RETAINED TREASURY
STOCK CAPITAL EARNINGS STOCK
BALANCE AT JULY 31, 1994 $1,250 $560,093
$14,451,945 $(5,784,760)
Treasury stock issued to ESOP
(3,000 shares) 3,000 120,000
Other (700 shares net) 1,200 33,365
Net income for the year
2,895,469
BALANCE AT JULY 31, 1995 1,250 560,093
17,351,614 (5,631,395)
Treasury stock issued to ESOP
(3,000 shares) 15,000 120,000
Other (500 shares) 2,500 20,000
Net income for the year
4,523,133
$1,250 $560,093 $21,892,247
$(5,491,395)
11. EMPLOYEE STOCK OWNERSHIP PLAN
Effective August 1, 1990 the Company established a non-
contributory employee stock ownership plan
(ESOP) covering substantially all employees except the Company's two
majority shareholders. The Company
contributed 3,000 shares of common stock with a fair market value of
$45.00 ($135,000) and $41.00 ($123,000)
to the plan during the years ended July 31, 1996 and 1995, respectively.
The Company also contributed
$28,134 and $26,418 in cash during the years ended July 31, 1996 and
1995, respectively. Employee benefits
vest after five years of service, including service prior to
establishment of the plan. There are
restrictions on the sale of the stock (see Plan of Reorganization).
12. FUTURES CONTRACTS
The Company enters into natural gas futures contracts to hedge
its exposure to changes in natural
gas prices. At any point in time, such contracts may include regulated
NYMEX futures contracts and non-
regulated over-the-counter futures contracts with qualified
counterparties. The futures contracts employed
by the Company are commitments to purchase or sell natural gas at a
future date and generally cover one
month periods for up to 18 months in the future. Realized gains
(losses)
are recorded in the income
accounts in the month(s) that the futures contracts are intended to
hedge. Unrealized gains (losses) are
deferred until realized. Deferred gains (losses) were ($3,190) and $-
0at
July 31, 1996 and 1995,
respectively.
13. COMMITMENTS
Atlas Resources, Inc., as general partner in several oil and
gas limited partnerships, and AEG
Holdings, Inc. have agreed to indemnify each investor general partner
from any liability incurred which
exceeds such partner's share of partnership assets. Management believes
that such liabilities that may
occur will be covered by insurance and, if not covered by insurance,
will
not result in a significant loss
to AEG Holdings, Inc. and its subsidiaries.
Subject to certain conditions, investor general partners in
certain oil and gas limited
partnerships may present their interests beginning in 1996 for purchase
by Atlas Resources, Inc., as
managing general partner. Atlas Resources, Inc. is not obligated to
purchase more than 5% of the units in
any calendar year.
Atlas Resources, Inc., as managing general partner in certain
oil and gas limited partnerships has
also agreed to subordinate its share of production revenues to the
receipt by investor partners of cash
distributions equal to at least 10% of their subscriptions in each of
the
first five years of partnership
operations.
14. NON-RECURRING INCOME
The non-recurring income item pertains to a settlement of
certain claims with Columbia Gas
Transmission Corporation.
15. IMPAIRMENT OF ASSETS
In 1996 the Company evaluated the carrying value of long-lived
assets for impairment of value in
accordance with the Statement of Financial Accounting Standards No. 121
"Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of." The
Company recognized a noncash write-down
in the carrying value of assets of $2,370,000 which primarily was a
result of the sustained decrease in gas
and oil prices. The write-down includes $1,930,000 in oil and gas
properties and $440,000 in gathering
lines. The write-down was determined based upon the estimated future
net
cash flows from the properties.
16. NATURAL GAS AND OIL PRODUCING ACTIVITIES (UNAUDITED)
The supplementary information summarized below presents the
results of natural gas and oil
activities in accordance with SFAS No. 69, "Disclosures About Oil and
Gas
Producing Activities."
(1) PRODUCTION COSTS
The following table presents the costs incurred relating
to natural gas and oil production
activities:
1996 1995
Capitalized costs at July 31:
Capitalized costs $31,927,784
$28,185,190
Accumulated depreciation and depletion
(12,211,283) (10,518,131)
Net capitalized costs $19,716,501
$17,667,059
Costs incurred during the year ended July 31:
Property acquisition costs - proved undeveloped
properties $ 15,000 $
500
Developed costs $ 6,745,226 $
4,753,047
Property acquisition costs include costs to purchase,
lease or otherwise acquire a property.
Development costs include costs to gain access to and prepare
development
well locations for drilling, to
drill and equip development wells and to provide facilities to extract,
treat, gather and store oil and gas.
(2) RESULTS OF OPERATIONS FOR PRODUCING ACTIVITIES
The following table presents the results of operations related
to natural gas and oil production
for the years ended July 31, 1996 and 1995:
1996 1995
Revenues $ 4,796,736 $ 3,903,888
Production costs (296,133) (230,256)
Depreciation and depletion (2,765,784)
(1,313,993)
Income tax expense (310,189) (631,545)
Results
of operations from producing activities $
1,424,630 $ 1,728,094
Depreciation, depletion and amortization of natural gas and
oil
properties are provided on the
unit-of- production method.
(3) RESERVE INFORMATION
The information presented below represents estimates of proved
natural gas and oil reserves.
Proved developed reserves represent only those reserves expected to be
recovered from existing wells and
support equipment. Proved undeveloped reserves represent proved
reserves
expected to be recovered from new
wells after substantial development costs are incurred. All reserves
are
located in Eastern Ohio and
Western Pennsylvania.
1996 1995
NATURAL GAS OIL NATURAL GAS OIL
(MCF) (BARRELS) (MCF) (BARRELS)
Proved developed and undeveloped reserves:
Beginning of period 60,946,963 91,260 55,084,369
86,390
Revision of previous estimates 2,579,747 (10,327)
(1,604,824) (1,833)
Extensions, discoveries and other additions 11,720,742
- -0- 22,723,456
121,285
Production (2,065,738) (9,414) (1,875,795)
(6,728)
Sales of minerals in place (12,673,528) -0-
(13,380,243) (107,854)
End of period 60,508,186 71,519 60,946,963
91,260
Proved developed reserves:
Beginning of period 21,114,083 91,260
19,461,489 86,390
End of period 23,925,316 71,519 21,114,083
91,260
16. NATURAL GAS AND OIL PRODUCING ACTIVITIES (UNAUDITED) (CONTINUED)
(4) STANDARD MEASURE OF DISCOUNTED FUTURE CASH FLOWS
Management cautions that the standard measure of discounted
future cash flows should not be viewed
as an indication of the fair market value of natural gas and oil
producing properties, nor of the future
cash flows expected to be generated therefrom. The information
presented does not give recognition to
future changes in estimated reserves, selling prices or costs and has
been discounted at an arbitrary rate
of 10%. Estimated future net cash flows from natural gas and oil
reserves based on selling prices and costs
at July 31, 1996 and July 31, 1995 price levels are as follows:
1996 1995
Future cash inflows $131,532,670 $139,389,034
Future production costs (30,793,378) (30,822,109)
Future development costs (34,814,000) (41,574,000)
Future income tax expense (13,669,546) (13,691,210)
Future net cash flow 52,255,746 53,301,715
10% annual discount for estimated timing of cash flows
(35,246,698) (38,511,020)
Standardized measure of discounted future net cash flows $
17,009,048 $ 14,790,695
Summary of changes in the standardized measure of discounted future
net cash flows:
1996 1995
Sales of gas and oil produced - net $(1,424,630) $
(1,728,094)
Net changes in prices, production and development costs
(4,256,259) (4,087,588)
Extensions, discoveries, and improved recovery,
less related costs 178,794 792,963
Development costs incurred 4,686,481 5,081,411
Revisions of previous quantity estimates 1,951,236
(961,361)
Sales of minerals in place (464,705) (1,843,660)
Accretion of discount 1,930,851 1,376,058
Net change in income taxes (383,415) 703,049
Net (decrease) increase 2,218,353 (667,222)
Beginning of period 14,790,695 15,457,917
End of period $17,009,048 $ 14,790,695
THE ATLAS GROUP, INC.
CONSOLIDATED BALANCE SHEET (UNAUDITED)
AS OF MAY 31, 1997
ASSETS 1997 1996
CURRENT ASSETS
Cash and cash equivalents $2,736,884 $ 6,021,315
Trade accounts and notes receivable
, less allowance for
doubtful accounts of $246,000 6,225,103 6,411,167
Other receivables 144,868 828,880
Costs in excess of billings on
uncompleted contracts 0 403,989
Inventories 592,055 496,391
Prepaid expenses and other current
assets TOTAL CURRENT ASSETS OIL AND GAS PROPERTIES
Oil and gas wells and leases 34,560,372 33,548,231
Less accumulated depreciation,
depletion and amortization
NET OIL & GAS PROPERTIES OTHER
ASSETS
PROPERTY, PLANT AND EQUIPMENT
Land 407,093 365,568
Buildings 2,550,415 1,790,457
Equipment 1,406,646 1,153,733
Gathering Lines Sub-total 24,610,016 21,533,085
Less accumulated depreciation
TOTAL PROPERTY, PLANT & EQUIPMENT
TOTAL ASSETS $40,871,874 $45,671,705
===========================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILTIIES
Accounts payable and accrued expenses $5,333,605 $8,014,373
Working interests and royalties payable 4,200,202 3,629,596
Billings in excess of costs on
uncompleted contracts 1,493,951 1,386,987
Current maturities on long-term debt:
Subordinated notes payable to
stockholders 1,907,084 1,669,661
Other 185,714 185,714
Income taxes payable TOTAL
CURRENT LIABILITIES
DEFERRED INCOME TAXES
LONG-TERM DEBT, net of current maturities
Notes Payable to Banks 5,523,810 5,709,524
Subordinated notes payable to
stockholders TOTAL LONG-TERM DEBT
DEFERRED REVENUE AND OTHER LONG-TERM LIABILITIES
STOCKHOLDERS' EQUITY
Capital stock, no par; authorized 2,000,000 shares;
issued 500,000 shares 1,250 1,250
Paid-in capital 560,093 560,093
Retained earnings 24,594,574 23,342,993
Treasury stock, at cost
(133,919 and 137,419 shares, respectively)
TOTAL STOCKHOLDERS' EQUITY
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $40,871,874 $45,671,705
THE ATLAS GROUP, INC.
CONSOLIDATED STATEMENT OF INCOME (UNAUDITED)
TEN MONTHS ENDED MAY 31, 1997
INCOME 1997 1996
Sales-gas wells $16,682,188 $16,302,706
Purchased gas revenues 26,865,659 34,917,254
Well operating fees 2,689,834 2,685,711
Gathering line charges 2,112,752 2,172,349
Working interest and royalties 4,590,002 3,858,537
Gain on sale of assets 164,582 8,148
Interest 201,133 198,529
Non-recurring Income (Note 2) 0 2,924,146
Other TOTAL INCOME
COST OF SALES AND OTHER EXPENSES
Costs of sales-gas wells 14,203,478 13,693,934
Cost of purchased gas 27,526,168 34,932,992
Gathering line operation and maintenance 1,471,075 1,183,033
Exploration Expense 250,748 128,983
General and administrative 3,075,483 2,471,129
Interest:
Subordinated notes payable to stockholders 462,852 638,658
Other 122,371 345,292
Depreciation, depletion and amortization TOTAL EXPENSES
INCOME BEFORE INCOME TAXES 3,587,928 8,046,728
INCOME TAXES
NET INCOME $ 2,688,208 $5,976,379
==========================
THE ATLAS GROUP, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS (UNAUDITED)
TEN MONTHS ENDED MAY 31, 1997
CASH FLOWS FROM OPERATING ACTIVITIES: 1997 1996
Net Income $2,688,208 $5,976,379
Adjustments to reconcile net income
to net cash provided
by (used in) operating activities:
Depreciation, depletion and amortization 3,164,635 2,469,995
(Increase) Decrease in Current assets 572,004 (3,999,761)
Increase (Decrease) in Current liabilities (10,066,269) 1,112,218
Other assets and liabilities, net Net cash provided by operating
activities
CASH FLOW USED IN INVESTING ACTIVITIES:
Investment in oil and gas wells and leases(2,632,588) (5,363,041)
Investment in Gathering Facilities (1,801,623) (1,557,236)
Other property additions Net cash used in investment activities
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on notes payable
to stockholders (1,669,661) (1,461,794)
Principal payments on other long-term borrowings Net cash from
financing activities
Net increase (decrease) in cash and cash
equivalents (11,178,018) (2,203,406)
Cash and cash equivalents at beginning of year
Cash and cash equivalents at end of period $2,736,884 $6,021,315
=======================
THE ATLAS GROUP, INC.
NOTE TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MAY 31, 1997
1. INTERIM FINANCIAL STATEMENTS
The consolidated financial statements as of May 31, 1997 and for the ten
months then ended have been
prepared by the management of the Company, without audit, pursuant to
the
rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been omitted
pursuant to such rules and regulations, although the Company believes
that the disclosures are adequate to
make the information presented not misleading. These consolidated
financial statements should be read in
conjunction with the audited July 31, 1996 and 1995 consolidated
financial statements. In the opinion of
management, all adjustments (consisting of only normal recurring
accruals) considered necessary for
presentation have been included.
2. The non-recurring income item in the period ended May 31, 1996
pertains to a settlement of certain
claims with Columbia Gas Transmission Corporation.
=====================================================================
EXHIBIT (A)
AMENDED AND RESTATED CERTIFICATE
AND
AGREEMENT OF LIMITED PARTNERSHIP
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
TABLE OF CONTENTS
SECTION NO. DESCRIPTION PAGE
SECTION NO. DESCRIPTION PAGE
I. FORMATION
1.01 Formation 1
1.02 Certificate of Limited Partnership 1
1.03 Name, Principal Office and Residence 1
1.04 Purpose 1
II. DEFINITION OF TERMS
2.01 Definitions 1
III. SUBSCRIPTIONS AND FURTHER CAPITAL CONTRIBUTIONS
3.01 Designation of Managing General Partner and Participants 7
3.02 Participants 7
3.03 Subscriptions to the Partnership 7
3.04 Capital Contributions 8
3.05 Payment of Subscriptions 9
3.06 Partnership Funds 9
IV. CONDUCT OF OPERATIONS
4.01 Acquisition of Leases 10
4.02 Conduct of Operations 11
4.03 General Rights and Obligations of the Participants and
Restricted and Prohibited Transactions 14
4.04 Designation, Compensation and Removal of Managing General
Partner
and Removal of Operator 20
4.05 Indemnification and Exoneration 21
4.06 Other Activities 22
V. PARTICIPATION IN COSTS AND REVENUES, CAPITAL ACCOUNTS, ELECTIONS
AND DISTRIBUTIONS
5.01 Participation in Costs and Revenues 23
5.02 Capital Accounts and Allocations
Thereto 25
5.03 Allocation of Income, Deductions and
Credits 25
5.04 Elections 27
5.05 Distributions 27
VI. TRANSFER OF INTERESTS
6.01 Transferability 28
6.02 Special Restrictions on Transfers 28
6.03 Right of Managing General Partner to Hypothecate and/or
Withdraw Its Interests 29
6.04 Repurchase Obligation 29
VII. DURATION, DISSOLUTION, AND WINDING
UP
7.01 Duration 30
7.02 Dissolution and Winding Up 31
VIII. MISCELLANEOUS PROVISIONS
8.01 Notices 31
8.02 Time 31
8.03 Applicable Law 31
8.04 Agreement in Counterparts 32
8.05 Amendment 32
8.06 Additional Partners 32
8.07 Legal Effect 32
EXHIBITS
EXHIBIT (I-A) - Managing General Partner Signature Page
EXHIBIT (I-B) - Subscription Agreement
EXHIBIT (II) - Drilling and Operating Agreement
AMENDED AND RESTATED CERTIFICATE AND
AGREEMENT OF LIMITED PARTNERSHIP
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
THIS AMENDED AND RESTATED CERTIFICATE AND AGREEMENT OF LIMITED
PARTNERSHIP ("AGREEMENT"), amending and restating the original
Certificate of Limited Partnership, is made and entered into as of
, 1997, by and among Atlas Resources, Inc., hereinafter referred to as
"Atlas" or the "Managing General Partner", and the remaining parties
from time to time signing a Subscription Agreement for Limited Partner
Units, such parties hereinafter sometimes referred to as "Limited
Partners," or for Investor General Partner Units, such parties
hereinafter sometimes referred to as "Investor General Partners".
ARTICLE I
FORMATION
1.01. FORMATION. The parties hereto form a limited partnership pursuant
to the Pennsylvania Revised Uniform Limited Partnership Act, upon the
terms and conditions set forth herein.
1.02. CERTIFICATE OF LIMITED PARTNERSHIP. This document shall
constitute not only the agreement among the parties hereto, but also
shall constitute the Amended and Restated Certificate and Agreement of
Limited Partnership of the Partnership and shall be filed or recorded in
such public offices as is required under applicable law or deemed
advisable in the discretion of the Managing General Partner. Amendments
to the certificate of limited partnership shall be filed or recorded in
such public offices as required under applicable law or deemed advisable
in the discretion of the Managing General Partner.
1.03. NAME, PRINCIPAL OFFICE AND RESIDENCE. The name of the Partnership
is Atlas-Energy for the Nineties-Public #6 Ltd. The residence of Atlas
shall be its principal place of business at 311 Rouser Road, Moon
Township, Pennsylvania 15108, which shall also serve as the principal
place of business of the Partnership. The residence of each Participant
shall be as set forth on the Subscription Agreement executed by each
such party. All such addresses shall be subject to change upon notice to
the parties. The name and address of the agent for service of process
shall be Mr. J.R. O'Mara at Atlas Resources, Inc., 311 Rouser Road, Moon
Township, Pennsylvania 15108.
1.04. PURPOSE. The Partnership shall engage in all phases of the oil
and gas business, including, without limitation, exploration for,
development and production of oil and gas upon the terms and conditions
hereinafter set forth and any other proper purpose under the
Pennsylvania Revised Uniform Limited Partnership Act. The Managing
General Partner may not, without the affirmative vote of Participants
whose Agreed Subscriptions equal a majority of the Partnership
Subscription, change the investment and business purpose of the
Partnership or cause the Partnership to engage in activities outside the
stated business purposes of the Partnership through joint ventures with
other entities.
ARTICLE II
DEFINITION OF TERMS
2.01. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings hereinafter set forth:
1. "Administrative Costs" shall mean all customary and routine expenses
incurred by the Sponsor for the conduct of Partnership administration,
including: legal, finance, accounting, secretarial, travel, office rent,
telephone, data processing and other items of a similar nature. No
Administrative Costs charged shall be duplicated under any other
category of expense or cost. No portion of the salaries, benefits,
compensation or remuneration of controlling persons of Atlas will be
reimbursed by the Partnership as Administrative Costs. Controlling
persons include directors, executive officers and those holding five
percent or more equity interest in the Managing General Partner or a
person having power to direct or cause the direction of the Managing
General Partner, whether through the ownership of voting securities, by
contract, or otherwise.
2. "Administrator" shall mean the official or agency administering the
securities laws of a state.
3. "Affiliate" shall mean with respect to a specific person (a) any
person directly or indirectly owning, controlling, or holding with power
to vote 10 per cent or more of the outstanding voting securities of such
specified person; (b) any person 10 per cent or more of whose
outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote, by such specified person; (c)
any person directly or indirectly controlling, controlled by, or under
common control with such specified person; (d) any officer, director,
trustee or partner of such specified person; and (e) if such specified
person is an officer, director, trustee or partner, any person for which
such person acts in any such capacity.
4. "Agreed Subscription" shall mean that amount so designated on the
Subscription Agreement executed by the Participant, or, in the case of
the Managing General Partner, its subscription under 3.03(b) and its
subsections.
5. "Agreement" shall mean this Amended and Restated Certificate and
Agreement of Limited Partnership, including all exhibits hereto.
6. "Assessments" shall mean additional amounts of capital which may be
mandatorily required of or paid voluntarily by a Participant beyond his
subscription commitment.
7. "Atlas" shall mean Atlas Resources, Inc., a Pennsylvania
corporation, whose principal executive offices are located at 311 Rouser
Road, Moon Township, Pennsylvania 15108.
8. "Atlas Energy" shall mean Atlas Energy Group, Inc., an Ohio
corporation, whose principal executive offices are located at 311 Rouser
Road, Moon Township, Pennsylvania 15108.
9. "Atlas Group" shall mean The Atlas Group, Inc., a Pennsylvania
corporation, whose principal executive offices are located at 311 Rouser
Road, Moon Township, Pennsylvania 15108. Atlas Group was formerly known
as AEGH or AEG Holdings, Inc.
10. "Capital Account" or "account" shall mean the account established
for each party hereto, maintained as provided in 5.02 and its
subsections.
11. "Capital Contribution" shall mean the amount agreed to be
contributed to the Partnership by a party pursuant to 3.04 and 3.05
and their subsections.
12. "Carried Interest" shall mean an equity interest in the
Partnership issued to a Person without consideration, in the form of
cash or tangible property, in an amount proportionately equivalent to
that received from the Participants.
13. "Code" shall mean the Internal Revenue Code of 1986, as amended.
14. "Cost", when used with respect to the sale of property to the
Partnership, shall mean (a) the sum of the prices paid by the seller to
an unaffiliated person for such property, including bonuses; (b) title
insurance or examination costs, brokers' commissions, filing fees,
recording costs, transfer taxes, if any, and like charges in connection
with the acquisition of such property; (c) a pro rata portion of the
seller's actual necessary and reasonable expenses for seismic and
geophysical services; and (d) rentals and ad valorem taxes paid by the
seller with respect to such property to the date of its transfer to the
buyer, interest and points actually incurred on funds used to acquire or
maintain such property, and such portion of the seller's reasonable,
necessary and actual expenses for geological, engineering, drafting,
accounting, legal and other like services allocated to the property cost
in conformity with generally accepted accounting principles and industry
standards, except for expenses in connection with the past drilling of
wells which are not producers of sufficient quantities of oil or gas to
make commercially reasonable their continued operations, and provided
that the expenses enumerated in this subsection (d) hereof shall have
been incurred not more than 36 months prior to the purchase by the
Partnership. When used with respect to services, "cost" shall mean the
reasonable, necessary and actual expense incurred by the seller on
behalf of the Partnership in providing such services, determined in
accordance with generally accepted accounting principles. As used
elsewhere, "cost" shall mean the price paid by the seller in an arm's-
length transaction.
15. "Dealer-Manager" shall mean Anthem Securities, Inc., a wholly owned
subsidiary of AIC, Inc. and the broker-dealer which will manage the
offering and sale of the Units in all states except Minnesota and New
Hampshire, and Bryan Funding, Inc., the broker-dealer which will manage
the offering and sale of Units in Minnesota and New Hampshire.
16. "Development Well" shall mean a well drilled within the proved area
of an oil or gas reservoir to the depth of a stratigraphic Horizon known
to be productive.
17. "Direct Costs" shall mean all actual and necessary costs directly
incurred for the benefit of the Partnership and generally attributable
to the goods and services provided to the Partnership by parties other
than the Sponsor or its Affiliates. Direct Costs shall not include any
cost otherwise classified as Organization and Offering Costs,
Administrative Costs, Intangible Drilling Costs, Tangible Costs,
Operating Costs or costs related to the Leases. Direct Costs may include
the cost of services provided by the Sponsor or its Affiliates if such
services are provided pursuant to written contracts and in compliance
with 4.03(d)(7).
18. "Distribution Interest" shall mean an undivided interest in the
assets of the Partnership after payments to creditors of the Partnership
or the creation of a reasonable reserve therefor, in the ratio the
positive balance of a party's Capital Account bears to the aggregate
positive balance of the Capital Accounts of all of the parties
determined after taking into account all Capital Account adjustments for
the taxable year during which liquidation occurs (other than those made
pursuant to liquidating distributions or restoration of deficit Capital
Account balances); provided, however, after the Capital Accounts of all
of the parties have been reduced to zero, such interest in the remaining
assets of the Partnership shall equal a party's interest in the related
revenues of the Partnership as set forth in 5.01 and its subsections of
this Agreement.
19. "Drilling and Operating Agreement" shall mean the proposed Drilling
and Operating Agreement between Atlas, Atlas Energy or an Affiliate as
Operator, and the Partnership as Developer, a copy of the proposed form
of which is attached hereto as Exhibit (II).
20. "Exploratory Well" shall mean a well drilled to find commercially
productive hydrocarbons in an unproved area, to find a new commercially
productive Horizon in a field previously found to be productive of
hydrocarbons at another Horizon, or to significantly extend a known
prospect.
21. "Farmout" shall mean an agreement whereby the owner of the
leasehold or Working Interest agrees to assign his interest in certain
specific acreage to the assignees, retaining some interest such as an
Overriding Royalty Interest, an oil and gas payment, offset acreage or
other type of interest, subject to the drilling of one or more specific
wells or other performance as a condition of the assignment.
22. "Final Terminating Event" shall mean any one of the following: (i)
the expiration of the fixed term of the Partnership; (ii) the giving of
notice to the Participants by the Managing General Partner of its
election to terminate the affairs of the Partnership; (iii) the giving
of notice by the Participants to the Managing General Partner of their
similar election through the affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription;
or (iv) the termination of the Partnership under 708(b)(1)(A) of the
Code or the Partnership ceases to be a going concern.
23. "Horizon" shall mean a zone of a particular formation; that part of
a formation of sufficient porosity and permeability to form a petroleum
reservoir.
24. "Independent Expert" shall mean a person with no material
relationship to the Sponsor or its Affiliates who is qualified and who
is in the business of rendering opinions regarding the value of oil and
gas properties based upon the evaluation of all pertinent economic,
financial, geologic and engineering information available to the Sponsor
or its Affiliates.
25. "Initial Closing Date" shall mean the date, on or before the
Offering Termination Date, but after the minimum Partnership
Subscription has been received, that the Managing General Partner, in
its sole discretion, elects for the Partnership to begin business
activities, including the drilling of wells. It is anticipated that this
date will be December 1, 1997.
26. "Intangible Drilling Costs"or "Non-Capital Expenditures" shall mean
those expenditures associated with property acquisition and the drilling
and completion of oil and gas wells that under present law are generally
accepted as fully deductible currently for federal income tax purposes;
and includes all expenditures made with respect to any well prior to the
establishment of production in commercial quantities for wages, fuel,
repairs, hauling, supplies and other costs and expenses incident to and
necessary for the drilling of such well and the preparation thereof for
the production of oil or gas, that are currently deductible pursuant to
Section 263(c) of the Code and Treasury Reg. Section 1.612-4, which are
generally termed "intangible drilling and development costs," including
the expense of plugging and abandoning any well prior to a completion
attempt.
27. "Interim Closing Date" shall mean such date(s) after the Initial
Closing Date of the Partnership, but prior to the Offering Termination
Date, that the Managing General Partner, in its sole discretion, applies
additional Agreed Subscriptions to additional Partnership activities,
including drilling activities.
28. "Investor General Partners" shall mean the persons signing the
Subscription Agreement as Investor General Partners and the Managing
General Partner to the extent of any optional subscription under
3.03(b)(2). All Investor General Partners shall be of the same class and
have the same rights.
29. "Landowner's Royalty Interest" shall mean an interest in
production, or the proceeds therefrom, to be received free and clear of
all costs of development, operation, or maintenance, reserved by a
landowner upon the creation of an oil and gas Lease.
30. "Leases" shall mean full or partial interests in oil and gas
leases, oil and gas mineral rights, fee rights, licenses, concessions,
or other rights under which the holder is entitled to explore for and
produce oil and/or gas, and further includes any contractual rights to
acquire any such interest.
31. "Limited Partners" shall mean the persons signing the Subscription
Agreement as Limited Partners, the Managing General Partner to the
extent of any optional subscription under 3.03(b)(2), the Investor
General Partners upon the conversion of their Investor General Partner
Units to Limited Partner interests pursuant to 6.01(c), and any other
persons who are admitted to the Partnership as additional or substituted
Limited Partners. Except as provided in 3.05(b), with respect to the
required additional Capital Contributions of Investor General Partners,
all Limited Partners shall be of the same class and have the same
rights.
32. "Managing General Partner" shall mean Atlas Resources, Inc. or any
Person admitted to the Partnership as a general partner other than as an
Investor General Partner pursuant to this Agreement who is designated to
exclusively supervise and manage the operations of the Partnership.
33. "Managing General Partner Signature Page" shall mean an execution
and subscription instrument in the form attached as Exhibit (I-A) to
this Agreement, which is incorporated herein by reference.
34. "Offering Termination Date" shall mean the date after the minimum
Partnership Subscription has been received on which the Managing General
Partner determines, in its sole discretion, the Partnership's
subscription period is closed and the acceptance of subscriptions
ceases, which shall not be later than December 31, 1997.
35. "Operating Costs" shall mean expenditures made and costs incurred
in producing and marketing oil or gas from completed wells, including,
in addition to labor, fuel, repairs, hauling, materials, supplies,
utility charges and other costs incident to or therefrom, ad valorem and
severance taxes, insurance and casualty loss expense, and compensation
to well operators or others for services rendered in conducting such
operations. Subject to the foregoing, Operating Costs also include
reworking, workover, subsequent equipping and similar expenses relating
to any well.
36. "Operator" shall mean Atlas, as operator of Partnership Wells in
Pennsylvania, Atlas Energy as operator of Partnership Wells in Ohio and
Atlas or an Affiliate as Operator of Partnership Wells in other areas of
the United States.
37. "Organization and Offering Costs" shall mean all costs of
organizing and selling the offering including, but not limited to, total
underwriting and brokerage discounts and commissions (including fees of
the underwriters' attorneys), expenses for printing, engraving, mailing,
salaries of employees while engaged in sales activities, charges of
transfer agents, registrars, trustees, escrow holders, depositaries,
engineers and other experts, expenses of qualification of the sale of
the securities under federal and state law, including taxes and fees,
accountants' and attorneys' fees and other front-end fees.
38. "Overriding Royalty Interest" shall mean an interest in the oil and
gas produced pursuant to a specified oil and gas lease or leases, or the
proceeds from the sale thereof, carved out of the working interest, to
be received free and clear of all costs of development, operation, or
maintenance.
39. "Participants" shall mean the Managing General Partner to the
extent of its optional subscription under 3.03(b)(2); the Limited
Partners, and the Investor General Partners.
40. "Partners" shall mean the Managing General Partner, the Investor
General Partners and the Limited Partners.
41. "Partnership" shall mean Atlas-Energy for the Nineties-Public #6
Ltd., the Pennsylvania limited partnership formed pursuant to this
Agreement.
42. "Partnership Net Production Revenues" shall mean gross revenues
after deduction of the related Operating Costs, Direct Costs,
Administrative Costs and all other Partnership costs not specifically
allocated.
43. "Partnership Subscription" shall mean the aggregate Agreed
Subscriptions of the parties to this Agreement; provided, however, with
respect to Participant voting rights under this Agreement, the term
"Partnership Subscription" shall be deemed not to include the Managing
General Partner's required subscription under 3.03(b)(1).
44. "Partnership Well" shall mean a well, some portion of the revenues
from which is received by the Partnership.
45. "Person" shall mean a natural person, partnership, corporation,
association, trust or other legal entity.
46. "Program" shall mean one or more limited or general partnerships or
other investment vehicles formed, or to be formed, for the primary
purpose of exploring for oil, gas and other hydrocarbon substances or
investing in or holding any property interests which permit the
exploration for or production of hydrocarbons or the receipt of such
production or the proceeds thereof.
47. "Prospect" shall mean an area covering lands which are believed by
the Managing General Partner to contain subsurface structural or
stratigraphic conditions making it susceptible to the accumulations of
hydrocarbons in commercially productive quantities at one or more
Horizons. The area, which may be different for different Horizons, shall
be designated by the Managing General Partner in writing prior to the
conduct of Partnership operations and shall be enlarged or contracted
from time to time on the basis of subsequently acquired information to
define the anticipated limits of the associated hydrocarbon reserves and
to include all acreage encompassed therein. A "Prospect" with respect to
a particular Horizon may be limited to the minimum area permitted by
state law or local practice, whichever is applicable, to protect against
drainage from adjacent wells if the well to be drilled by the
Partnership is to a Horizon containing Proved Reserves. Subject to the
foregoing sentence, with respect to the Clinton/Medina geological
formation in Ohio and Pennsylvania "Prospect" shall be deemed the
drilling or spacing unit.
48. "Proved Reserves" shall mean the estimated quantities of crude oil,
natural gas, and natural gas liquids which geological and engineering
data demonstrate with reasonable certainty to be recoverable in future
years from known reservoirs under existing economic and operating
conditions, i.e., prices and costs as of the date the estimate is made.
Prices include consideration of changes in existing prices provided only
by contractual arrangements, but not on escalations based upon future
conditions.
(i) Reservoirs are considered proved if economic producibility is
supported by either actual production or conclusive formation test. The
area of a reservoir considered proved includes (a) that portion
delineated by drilling and defined by gas-oil and/or oil-water contacts,
if any; and (b) the immediately adjoining portions not yet drilled, but
which can be reasonably judged as economically productive on the basis
of available geological and engineering data. In the absence of
information on fluid contacts, the lowest known structural occurrence of
hydrocarbons controls the lower proved limit of the reservoir.
(ii) Reserves which can be produced economically through application
of improved recovery techniques (such as fluid injection) are included
in the "proved" classification when successful testing by a pilot
project, or the operation of an installed program in the reservoir,
provides support for the engineering analysis on which the project or
program was based.
(iii) Estimates of proved reserves do not include the following: (a)
oil that may become available from known reservoirs but is classified
separately as "indicated additional reserves"; (b) crude oil, natural
gas, and natural gas liquids, the recovery of which is subject to
reasonable doubt because of uncertainty as to geology, reservoir
characteristics, or economic factors; (c) crude oil, natural gas, and
natural gas liquids, that may occur in undrilled prospects; and (d)
crude oil, natural gas, and natural gas liquids, that may be recovered
from oil shales, coal, gilsonite and other such sources.
49. "Proved Developed Oil and Gas Reserves" shall mean reserves that
can be expected to be recovered through existing wells with existing
equipment and operating methods. Additional oil and gas expected to be
obtained through the application of fluid injection or other improved
recovery techniques for supplementing the natural forces and mechanisms
of primary recovery should be included as "proved developed reserves"
only after testing by a pilot project or after the operation of an
installed program has confirmed through production response that
increased recovery will be achieved.
50. "Proved Undeveloped Reserves" shall mean reserves that are expected
to be recovered from new wells on undrilled acreage, or from existing
wells where a relatively major expenditure is required for recompletion.
Reserves on undrilled acreage shall be limited to those drilling units
offsetting productive units that are reasonably certain of production
when drilled. Proved reserves for other undrilled units can be claimed
only where it can be demonstrated with certainty that there is
continuity of production from the existing productive formation. Under
no circumstances should estimates for proved undeveloped reserves be
attributable to any acreage for which an application of fluid injection
or other improved recovery technique is contemplated, unless such
techniques have been proved effective by actual tests in the area and in
the same reservoir.
51. "Roll-Up" shall mean a transaction involving the acquisition,
merger, conversion or consolidation, either directly or indirectly, of
the Partnership and the issuance of securities of a Roll-Up Entity. Such
term does not include: (a) a transaction involving securities of the
Partnership that have been listed for at least twelve months on a
national exchange or traded through the National Association of
Securities Dealers Automated Quotation National Market System; or (b) a
transaction involving the conversion to corporate, trust or association
form of only the Partnership if, as a consequence of the transaction,
there will be no significant adverse change in any of the following:
voting rights; the term of existence of the Partnership; the Managing
General Partner's compensation; and the Partnership's investment
objectives.
52. "Roll-Up Entity" shall mean a partnership, trust, corporation or
other entity that would be created or survive after the successful
completion of a proposed roll-up transaction.
53. "Sales Commissions" shall mean all underwriting and brokerage
discounts and commissions incurred in the sale of Units in the
Partnership payable to registered broker-dealers, excluding the Dealer
Manager fee, the reimbursement for bona fide accountable due diligence
expenses and wholesaling fees.
54. "Selling Agents" shall mean those broker-dealers selected by the
Dealer-Manager which will participate in the offer and sale of the
Units.
55. "Sponsor" shall mean any person directly or indirectly instrumental
in organizing, wholly or in part, a program or any person who will
manage or is entitled to manage or participate in the management or
control of a program. "Sponsor" includes the managing and controlling
general partner(s) and any other person who actually controls or selects
the person who controls 25% or more of the exploratory, development or
producing activities of the program, or any segment thereof, even if
that person has not entered into a contract at the time of formation of
the program. "Sponsor" does not include wholly independent third parties
such as attorneys, accountants, and underwriters whose only compensation
is for professional services rendered in connection with the offering of
units. Whenever the context so requires, the term "sponsor" shall be
deemed to include its affiliates.
56. "Subscription Agreement" shall mean an execution and subscription
instrument in the form attached as Exhibit (I-B) to this Agreement,
which is incorporated herein by reference.
57. "Tangible Costs"or "Capital Expenditures" shall mean those costs
associated with the drilling and completion of oil and gas wells which
are generally accepted as capital expenditures pursuant to the
provisions of the Internal Revenue Code; and includes all costs of
equipment, parts and items of hardware used in drilling and completing
a well, and those items necessary to deliver acceptable oil and gas
production to purchasers to the extent installed downstream from the
wellhead of any well and which are required to be capitalized pursuant
to applicable provisions of the Code and regulations promulgated
thereunder.
58. "Tax Matters Partner" shall mean the Managing General Partner.
59. "Units" or "Units of Participation" shall mean the Limited Partner
interests and the Investor General Partner interests purchased by
Participants in the Partnership under the provisions of 3.03 and its
subsections.
60. "Working Interest" shall mean an interest in an oil and gas
leasehold which is subject to some portion of the Cost of development,
operation, or maintenance.
ARTICLE III
SUBSCRIPTIONS AND FURTHER CAPITAL CONTRIBUTIONS
3.01. DESIGNATION OF MANAGING GENERAL PARTNER AND PARTICIPANTS. Atlas
shall serve as Managing General Partner of the Partnership. Atlas shall
further serve as a Participant to the extent of any subscription made by
it pursuant to 3.03(b)(2). Limited Partners and Investor General
Partners, including Affiliates of the Managing General Partner, shall
serve as Participants; and except as provided under the Pennsylvania
Revised Uniform Limited Partnership Act, the Limited Partners shall not
be bound by the obligations of the Partnership.
3.02. PARTICIPANTS.
3.02(a). LIMITED PARTNER AT FORMATION. Atlas Energy Group, Inc., as
Original Limited Partner, has acquired one Unit and has made a Capital
Contribution of $100. Upon the admission of Limited Partners and
Investor General Partners pursuant to 3.02(c) below, the Partnership
shall return to such Original Limited Partner its Capital Contribution
and shall reacquire its Unit and such Original Limited Partner shall
cease to be a Limited Partner in the Partnership with respect to such
Unit.
3.02(b). OFFERING OF INTERESTS. The Partnership is authorized to admit
to the Partnership after the receipt of the minimum Partnership
Subscription and at or prior to the Offering Termination Date additional
Limited Partners and Investor General Partners whose Agreed
Subscriptions for Units are accepted by the Managing General Partner if,
after the admission of such additional Limited Partners and Investor
General Partners, the Agreed Subscriptions of all Limited Partners and
Investor General Partners do not exceed the number of Units set forth in
3.03(c)(1). The Managing General Partner may refuse to admit any person
as a Limited Partner or Investor General Partner for any reason
whatsoever pursuant to 3.03(d).
3.02(c). ADMISSION OF LIMITED PARTNERS AND/OR INVESTOR GENERAL
PARTNERS. No action or consent by the Participants shall be required for
the admission of additional Limited Partners and Investor General
Partners pursuant to 3.02(b). All subscribers' funds shall be held by an
independent interest bearing escrow holder and shall not be released to
the Partnership until the receipt of the minimum Partnership
Subscription in 3.03(c)(2). Thereafter, subscriptions may be paid
directly to the Partnership Account.
3.02(d). MINIMUM CAPITALIZATION AND DURATION OF OFFERING. The offering
of Units shall be terminated not later than the earlier of (i) December
31, 1997; or (ii) at such time as Agreed Subscriptions for the maximum
Partnership Subscription set forth in 3.03(c)(1) shall have been
received and accepted by the Managing General Partner. The offering may
be terminated earlier at the option of the Managing General Partner. If
at the time of termination Agreed Subscriptions for fewer than 100 Units
have been received and accepted, all monies deposited by
subscribers shall be promptly returned to them with the interest earned
thereon from the date such monies were deposited in escrow through the
date of refund.
3.03. SUBSCRIPTIONS TO THE PARTNERSHIP.
3.03(a). SUBSCRIPTIONS BY PARTICIPANTS.
3.03(a)(1). AGREED SUBSCRIPTION. A Participant's Agreed Subscription to
the Partnership shall be the amount so designated on his Subscription
Agreement.
3.03(a)(2). SUBSCRIPTION PRICE AND MINIMUM AGREED SUBSCRIPTION. The
subscription price of a Unit in the Partnership shall be $10,000,
payable as set forth herein. The minimum Agreed Subscription per
Participant shall be one Unit ($10,000); however, the Managing General
Partner, in its discretion, may accept one-half Unit ($5,000)
subscriptions. Larger Agreed Subscriptions shall be accepted in $1,000
increments.
3.03(a)(3). EFFECT OF SUBSCRIPTION. Execution of a Subscription
Agreement shall serve as an agreement by such Limited Partner or
Investor General Partner to be bound by each and every term of this
Agreement.
3.03(b). SUBSCRIPTIONS BY MANAGING GENERAL PARTNER.
3.03(b)(1). MANAGING GENERAL PARTNER'S REQUIRED SUBSCRIPTION. The
Managing General Partner, as a general partner and not as a Limited
Partner or Investor General Partner, shall contribute to the Partnership
the Leases which will be drilled by the Partnership on the terms set
forth in 4.01(a)(3) and shall pay the costs charged to it pursuant to
5.01(a). Such amounts shall be paid as set forth in
3.05(a).
3.03(b)(2). MANAGING GENERAL PARTNER'S OPTIONAL ADDITIONAL
SUBSCRIPTION. In addition to the Managing General Partner's required
subscription under 3.03(b)(1), the Managing General Partner may
subscribe to up to 10% of the Units on the same basis as a Participant
may subscribe to Units under the provisions of 3.03(a) and its
subsections, and, subject to the limitations on voting rights set forth
in 4.03(c)(1), to that extent shall be deemed a Participant in the
Partnership for all purposes under this Agreement. Notwithstanding the
foregoing, broker-dealers and the Managing General Partner and its
officers and directors and Affiliates shall not be required to pay the
Dealer-Manager fee, any Sales Commission or any reimbursement of
accountable due diligence expenses.
3.03(b)(3). EFFECT OF AND EVIDENCING SUBSCRIPTION. The Managing General
Partner has executed a Managing General Partner Signature Page which
evidences the Managing General Partner's required subscription under
3.03(b)(1) and which may be amended to reflect the amount of any
optional subscription under 3.03(b)(2). Execution of the Managing
General Partner Signature Page serves as an agreement by the Managing
General Partner to be bound by each and every term of this Agreement.
3.03(c). MAXIMUM AND MINIMUM PARTNERSHIP SUBSCRIPTION.
3.03(c)(1). MAXIMUM PARTNERSHIP SUBSCRIPTION. The maximum Partnership
Subscription excluding the Managing General Partner's required
subscription under 3.03(b)(1) may not exceed $8,000,000 (800 Units).
However, if subscriptions for all 800 Units being offered are obtained,
the Managing General Partner, in its sole discretion, may offer not more
than 200 additional Units and increase the maximum aggregate
subscriptions with which the Partnership may be funded to not more than
1,000 Units ($10,000,000).
3.03(c)(2). MINIMUM PARTNERSHIP SUBSCRIPTION. The minimum Partnership
Subscription shall equal at least $1,000,000 (100 Units). The Managing
General Partner and its Affiliates may purchase up to 10% of the
Partnership Subscription, none of which shall be applied to satisfy the
$1,000,000 minimum.
3.03(d). ACCEPTANCE OF SUBSCRIPTIONS. Acceptance of subscriptions shall
be discretionary with Atlas and Atlas may reject any subscription for
any reason it deems appropriate. A Participant's subscription to the
Partnership and Atlas' acceptance thereof shall be evidenced by the
execution of a Subscription Agreement by the Limited Partner or the
Investor General Partner and by Atlas. Agreed Subscriptions shall be
accepted or rejected by the Partnership within thirty days of their
receipt; if rejected, all funds shall be returned to the subscriber
immediately. Upon the original sale of Units, the Participants shall be
admitted as Partners not later than fifteen days after the release from
escrow of Participants' funds to the Partnership, and thereafter
Participants shall be admitted into the Partnership not later than the
last day of the calendar month in which their Agreed Subscriptions were
accepted by the Partnership.
3.04. CAPITAL CONTRIBUTIONS.
3.04(a). CAPITAL CONTRIBUTIONS. Each Participant shall make a Capital
Contribution to the Partnership equal to the sum of: (i) the Agreed
Subscription of such Participant; and (ii) in the case of Investor
General Partners, but not the Limited Partners, the additional Capital
Contributions required in 3.05(b). Participants shall not be required to
restore any deficit balances in their Capital Accounts except as set
forth in 5.03(h).
3.04(b). ADDITIONAL MANAGING GENERAL PARTNER CAPITAL CONTRIBUTIONS.
3.04(b)(1). ADDITIONAL CAPITAL CONTRIBUTIONS OF THE MANAGING GENERAL
PARTNER. In addition to any Capital Contribution required of the
Managing General Partner as provided in 3.03(b)(1) and any optional
Capital Contribution as a Participant as provided in .03(b)(2),
the
Managing General Partner shall further contribute cash sufficient to pay
all costs charged to it under this Agreement to the extent such costs
exceed: (i) its Capital Contribution pursuant .03(b); and (ii) its
share of undistributed revenues. In any event, the Managing General
Partner's aggregate Capital Contributions to the Partnership (including
Leases contributed pursuant to 3.03(b)(1)) shall not be
less than 15% of all Capital Contributions to the Partnership. Any
payments by the Managing General Partner in excess of the costs set
forth in 3.03(b)(1) shall be used to pay Partnership costs which would
otherwise be charged to the Participants. Such Capital Contributions
shall be paid by the Managing General Partner at the time such costs are
required to be paid by the Partnership, but, in no event, later than
December 31, 1998.
Upon liquidation of the Partnership or its interest in the Partnership,
the Managing General Partner shall contribute to the Partnership any
deficit balance in its Capital Account, determined after taking into
account all adjustments for the Partnership's taxable year during which
such liquidation occurs (other than adjustments made pursuant to this
requirement), by the end of the taxable year in which its interest in
the Partnership is liquidated (or, if later, within 90 days after the
date of such liquidation), to be paid to creditors of the Partnership or
distributed to the other parties hereto in accordance with 7.02
upon liquidation of the Partnership. The Managing General Partner shall
maintain a minimum Capital Account balance equal to 1% of total positive
Capital Account balances for the Partnership.
3.04(b)(2). INTEREST FOR CONTRIBUTIONS. The interest of the Managing
General Partner in the capital and revenues of the Partnership is in
consideration for, and is the only consideration for, its Capital
Contribution to the Partnership.
3.04(c). LIMITATION ON AMOUNT OF REQUIRED CAPITAL CONTRIBUTIONS OF
LIMITED PARTNERS. In no event shall a Limited Partner be required to
make contributions to the Partnership greater than his required Capital
Contribution under 3.04(a).
3.05. PAYMENT OF SUBSCRIPTIONS.
3.05(a). MANAGING GENERAL PARTNER'S SUBSCRIPTIONS. The Managing General
Partner shall contribute to the Partnership the Leases pursuant to
3.03(b)(1) and pay the costs charged to it when incurred by the
Partnership, subject to 3.04(b)(1). Any optional subscription under
3.03(b)(2) shall be paid by the Managing General Partner in the same
manner as provided for the payment of Participant subscriptions under
3.05(b).
3.05(b). PARTICIPANT SUBSCRIPTIONS AND ADDITIONAL CAPITAL CONTRIBUTIONS
OF THE INVESTOR GENERAL PARTNERS. A Participant shall pay his Agreed
Subscription 100% in cash at the time of subscribing. A Participant
shall receive interest on his Agreed Subscription up until the Offering
Termination Date.
Investor General Partners are obligated to make Capital Contributions to
the Partnership when called by the Managing General Partner, in addition
to their Agreed Subscriptions, for their pro rata share of any
Partnership obligations and liabilities which are recourse to the
Investor General Partners and are represented by their ownership of
Units prior to the conversion of Investor General Units to Limited
Partner interests pursuant to 6.01(c). The failure of an Investor
General Partner to timely make a required additional Capital
Contribution pursuant to this section results in his personal liability
to the other Investor General Partners for the amount in default. The
remaining Investor General Partners, pro rata, must pay such defaulting
Investor General Partner's share of Partnership liabilities and
obligations. In that event, the remaining Investor General Partners
shall have a first and preferred lien on the defaulting Investor General
Partner's interest in the Partnership to secure payment of the amount in
default plus interest at the legal rate; shall be entitled to receive
100% of the defaulting Investor General Partner's cash distributions
directly from the Partnership until the amount in default is recovered
in full plus interest at the legal rate; and may commence legal action
to collect the amount due plus interest at the legal rate.
3.06. PARTNERSHIP FUNDS.
3.06(a). FIDUCIARY DUTY. The Managing General Partner shall have a
fiduciary responsibility for the safekeeping and use of all funds and
assets of the Partnership, whether or not in the Managing General
Partner's possession or control, and the Managing General Partner shall
not employ, or permit another to employ, such funds and assets in any
manner except for the exclusive benefit of the Partnership. Neither this
Agreement nor any other agreement between the Sponsor and the
Partnership shall contractually limit any fiduciary duty owed to the
Participants by the Sponsor under applicable law, except as provided in
4.01, 4.02, 4.04, 4.05 and 4.06 of this Agreement.
3.06(b). SPECIAL ACCOUNT AFTER THE RECEIPT OF THE MINIMUM PARTNERSHIP
SUBSCRIPTION. Following the receipt of the minimum Partnership
Subscription, the funds of the Partnership shall be held in a separate
interest-bearing account maintained for the Partnership and shall not be
commingled with funds of any other entity.
3.06(c). INVESTMENT. Partnership funds may not be invested in the
securities of another person except in the following instances: (1)
investments in Working Interests or undivided Lease interests made in
the ordinary course of the Partnership's business; (2) temporary
investments made as set forth below; (3) multi-tier arrangements meeting
the requirements of 4.03(d)(15); (4) investments involving less than 5%
of the Partnership Subscription which are a necessary and incidental
part of a property acquisition transaction; and (5) investments in
entities established solely to limit the Partnership's liabilities
associated with the ownership or operation of property or equipment,
provided, in such instances duplicative fees and expenses shall be
prohibited. After the Offering Termination Date and until proceeds from
the public offering are invested in the Partnership's operations, such
proceeds may be temporarily invested in income producing short-term,
highly liquid investments, where there is appropriate safety of
principal, such as U.S. Treasury Bills.
ARTICLE IV
CONDUCT OF OPERATIONS
4.01. ACQUISITION OF LEASES.
4.01(a). ASSIGNMENT TO PARTNERSHIP.
4.01(a)(1). GENERAL. The Managing General Partner shall select,
acquire and assign or cause to have assigned to the Partnership full or
partial interests in Leases, by any method customary in the oil and gas
industry, subject to the terms and conditions set forth below. The
Partnership shall acquire only Leases reasonably expected to meet the
stated purposes of the Partnership. No Leases shall be acquired for the
purpose of a subsequent sale unless the acquisition is made after a well
has been drilled to a depth sufficient to indicate that such an
acquisition would be in the Partnership's best interest.
4.01(a)(2). FEDERAL AND STATE LEASES. The Partnership is authorized to
acquire Leases on federal and state lands.
4.01(a)(3). TERMS AND OBLIGATIONS. Subject to the provisions of 4.03(d)
and its subsections, such acquisitions of Leases or other property may
be made under any terms and obligations, including any limitations as to
the Horizons to be assigned to the Partnership, and subject to any
burdens, as the Managing General Partner deems necessary in its sole
discretion. Provided, however, that any Lease acquired from the Managing
General Partner, the Operator or their Affiliates shall be credited
towards the Managing General Partner's required Capital Contribution set
forth in 3.03(b)(1) at the Cost of such Lease, unless the Managing
General Partner shall have cause to believe that Cost is materially more
than the fair market value of such property, in which case the credit
for such contribution will be made at a price not in excess of the fair
market value. A determination of fair market value must be supported by
an appraisal from an Independent Expert. Such opinion and any associated
supporting information must be maintained in the Partnership's records
for six years.
To the extent the Partnership does not acquire a full interest in a
Lease from the Managing General Partner, the remainder of the interest
in such Lease may be held by the Managing General Partner which may
either retain and exploit it for its own account or sell or otherwise
dispose of all or a part of such remaining interest. Profits from such
exploitation and/or disposition shall be for the benefit of the Managing
General Partner to the exclusion of the Partnership.
4.01(a)(4). NO BREACH OF DUTY. Subject to the provisions of 4.03 and
its subsections, acquisition of Leases from the Managing General
Partner, the Operator or their Affiliates shall not be considered a
breach of any obligation owed by the Managing General Partner, the
Operator, or their Affiliates to the Partnership or the Participants.
4.01(b). OVERRIDING ROYALTY INTERESTS. Neither the Managing General
Partner nor any Affiliate shall acquire or retain any Overriding Royalty
Interest on the Lease interests acquired by the Partnership.
4.01(c). TITLE AND NOMINEE ARRANGEMENTS.
4.01(c)(1). LEGAL TITLE. Legal title to all Leases acquired by the
Partnership shall be held on a permanent basis in the name of the
Partnership. However, Partnership properties may be held temporarily in
the name of the Managing General Partner, the Operator or their
Affiliates or in the name of any nominee designated by the Managing
General Partner to facilitate the acquisition of the properties.
4.01(c)(2). TITLE. The Managing General Partner shall take such steps
as are necessary in its best judgment to render title to the Leases to
be acquired by the Partnership acceptable for the purposes of the
Partnership. No operation shall be commenced on Leases acquired by the
Partnership unless the Managing General Partner is satisfied that
necessary title requirements have been satisfied. The Managing General
Partner shall be free, however, to use its own best judgment in waiving
title requirements and shall not be liable to the Partnership or to the
other parties for any mistakes of judgment; nor shall the Managing
General Partner be deemed to be making any warranties or
representations, express or implied, as to the validity or
merchantability of the title to the Leases assigned to the Partnership
or the extent of the interest covered thereby except as otherwise may be
provided in the Drilling and Operating Agreement.
4.02. CONDUCT OF OPERATIONS.
4.02(a). IN GENERAL. The Managing General Partner shall establish a
program of operations for the Partnership. Subject to the limitations
contained in Article III of this Agreement concerning the maximum
Capital Contribution which can be required of a Limited Partner, the
Managing General Partner, the Limited Partners and the Investor General
Partners agree to participate in the program so established by the
Managing General Partner.
4.02(b). MANAGEMENT. Subject to any restrictions contained in this
Agreement, the Managing General Partner shall exercise full control over
all operations of the Partnership.
4.02(c). GENERAL POWERS OF THE MANAGING GENERAL PARTNER.
4.02(c)(1). IN GENERAL. Subject to the provisions of 4.03 and its
subsections, and to any authority which may be granted the Operator
under 4.02(c)(3)(b), the Managing General Partner shall have full
authority to do all things deemed necessary or desirable by it in the
conduct of the business of the Partnership. Without limiting the
generality of the foregoing, the Managing General Partner is expressly
authorized to engage in:
(i) the making of all determinations of which Leases, wells and
operations will be participated in by the Partnership, which Leases are
developed and which Leases are abandoned, or at its sole discretion,
sold or assigned to other parties, including other investor ventures
organized by the Managing General Partner, the Operator or any of their
Affiliates;
(ii) the negotiation and execution on any terms deemed desirable in
its sole discretion of any contracts, conveyances, or other
instruments, considered useful to the conduct of such operations or the
implementation of the powers granted it under this Agreement,
including, without limitation, the making of agreements for the conduct
of operations or the furnishing of equipment, facilities, supplies and
material, services, and personnel and the exercise of any options,
elections, or decisions under any such agreements;
(iii) the exercise, on behalf of the Partnership or the parties, in
such manner as the Managing General Partner in its sole judgment deems
best, of all rights, elections and options granted or imposed by any
agreement, statute, rule, regulation, or order;
(iv) the making of all decisions concerning the desirability of
payment, and the payment or supervision of the payment, of all delay
rentals and shut-in and minimum or advance royalty payments;
(v) the selection of full or part-time employees and outside
consultants and contractors and the determination of their compensation
and other terms of employment or hiring;
(vi) the maintenance of such insurance for the benefit of the
Partnership and the parties as it deems necessary, but, subject to
6.01(c), in no event less in amount or type than the following: (a)
worker's compensation insurance in full compliance with the laws of the
Commonwealth of Pennsylvania and any other applicable state laws; (b)
liability insurance (including automobile) which has a $1,000,000
combined single limit for bodily injury and property damage in any one
accident or occurrence and in the aggregate; and (c) such excess
liability insurance as to bodily injury and property damage with
combined limits of $50,000,000, per occurrence or accident and in the
aggregate, which includes $250,000 of seepage, pollution and
contamination insurance which protects and defends the insured against
property damage or bodily injury claims from third parties (other than a
co-owner of the Working Interest) alleging seepage, pollution or
contamination damage resulting from an accident. Such excess liability
insurance shall be in place and effective no later than the Initial
Closing Date and shall continue until the Investor General Partners are
converted to Limited Partners, at which time the Partnership shall
continue to enjoy the benefit of Atlas' $11,000,000 liability insurance
on the same basis as Atlas and its Affiliates, including other Programs
in which Atlas serves as Managing General Partner;
(vii) the use of the funds and revenues of the Partnership, and the
borrowing on behalf of, and the loan of money to, the Partnership, on
any terms it sees fit, for any purpose, including without limitation the
conduct or financing, in whole or in part, of the drilling and other
activities of the Partnership or the conduct of additional operations,
and the repayment of any such borrowings or loans used initially to
finance such operations or activities;
(viii) the disposition, hypothecation, sale, exchange, release,
surrender, reassignment or abandonment of any or all assets of the
Partnership (including, without limitation, the Leases, wells, equipment
and production therefrom) provided that the sale of all or substantially
all of the assets of the Partnership shall only be made as provided in
.03(d)(6);
(ix) the formation of any further limited or general partnership,
tax partnership, joint venture, or other relationship which it deems
desirable with any parties who it, in its sole and absolute discretion,
selects, including any of its Affiliates;
(x) the control of any matters affecting the rights and obligations
of the Partnership, including the employment of attorneys to advise and
otherwise represent the Partnership, the conduct of litigation and other
incurring of legal expense, and the settlement of claims and litigation;
(xi) the operation of producing wells drilled on the Leases owned by
the Partnership, or on a Prospect which includes any part of the Leases;
(xii) the exercise of the rights granted to it under the power of
attorney created pursuant to this Agreement; and
(xiii) the incurring of all costs and the making of all expenditures
in any way related to any of the foregoing.
4.02(c)(2). SCOPE OF POWERS. The Managing General Partner's powers
shall extend to any operation participated in by the Partnership or
affecting its Leases, or other property or assets, irrespective of
whether or not the Managing General Partner is designated operator of
such operation by any outside persons participating therein.
4.02(c)(3). DELEGATION OF AUTHORITY.
4.02(c)(3)(a). IN GENERAL. The Managing General Partner may subcontract
and delegate all or any part of its duties hereunder to any entity
chosen by it, including an entity related to it, and such party shall
have the same powers in the conduct of such duties as would the Managing
General Partner; but such delegation shall not relieve the Managing
General Partner of its responsibilities hereunder.
4.02(c)(3)(b). DELEGATION TO OPERATOR. The Managing General Partner is
specifically authorized to delegate any or all of its duties to the
Operator by executing the Drilling and Operating Agreement, but such
delegation shall not relieve the Managing General Partner of its
responsibilities hereunder. In no event shall any consideration received
for operator services be in excess of the competitive rates or
duplicative of any consideration or reimbursements received pursuant to
this Agreement. The Managing General Partner may not benefit by
interpositioning itself between the Partnership and the actual provider
of operator services.
4.02(c)(4). RELATED PARTY TRANSACTIONS. Subject to the provisions of
and its subsections, any transaction which the Managing General
Partner is authorized to enter into on behalf of the Partnership under
the authority granted in this section and its subsections, may be
entered into by the Managing General Partner with itself or with any
other general partner, the Operator or any of their Affiliates.
4.02(d). ADDITIONAL POWERS. In addition to the powers granted the
Managing General Partner under 2(c) and its subsections or
elsewhere in this Agreement, the Managing General Partner, where
specified, shall have the following additional express powers.
4.02(d)(1). DRILLING CONTRACTS. Partnership Wells drilled in
Pennsylvania and other areas of the Appalachian Basin may be drilled
pursuant to the Drilling and Operating Agreement on a per-foot basis
with Atlas or its Affiliates based on $37.39 per foot or, with respect
to a well which the Partnership elects not to complete, $20.60 per foot.
Partnership Wells in other areas of the United States shall be drilled
at competitive rates and in no event shall Atlas or its Affiliates, as
drilling contractor, receive a per foot rate which is not competitive
with the rates charged by unaffiliated contractors in the same
geographic region. No turnkey drilling contracts shall be made between
the Managing General Partner or its Affiliates and the Partnership.
Neither the Managing General Partner nor its Affiliates shall profit by
drilling in contravention of its fiduciary obligations to the
Partnership. The Managing General Partner may not benefit by
interpositioning itself between the Partnership and the actual provider
of drilling contractor services.
4.02(d)(2). POWER OF ATTORNEY.
4.02(d)(2)(a). IN GENERAL. Each party hereto hereby makes, constitutes
and appoints the Managing General Partner his true and lawful attorneyin-
fact for him and in his name, place and stead and for his use and
benefit, from time to time:
1. to create, prepare, complete, execute, file, swear to, deliver,
endorse and record any and all documents, certificates or other
instruments required or necessary to amend this Agreement as authorized
under the terms of this Agreement, or to qualify the Partnership as a
limited partnership or partnership in commendam and to conduct business
under the laws of any jurisdiction in which the Managing General Partner
elects to qualify the Partnership or conduct business; and
2. to create, prepare, complete, execute, file, swear to, deliver,
endorse and record any and all instruments, assignments, security
agreements, financing statements, certificates and other documents as
may be necessary from time to time to implement the borrowing powers
granted under this Agreement.
4.02(d)(2)(b). FURTHER ACTION. Each party hereto hereby authorizes such
attorney-in-fact to take any further action which such attorneyin-fact
shall consider necessary or advisable in connection with any of the
foregoing and acknowledges that the power of attorney granted under this
section is a special power of attorney coupled with an interest and is
irrevocable and shall survive the assignment by a party of the whole or
a portion of his interest in the Partnership; except that where such
assignment is of such party's entire interest in the Partnership and the
purchaser, transferee or assignee thereof, with the consent of the
Managing General Partner, is admitted as a successor Limited Partner or
Investor General Partner, the power of attorney shall survive the
delivery of such assignment for the sole purpose of enabling such
attorney-in-fact to execute, acknowledge and file any such agreement,
certificate, instrument or document necessary to effect such
substitution.
4.02(d)(2)(c). POWER OF ATTORNEY TO OPERATOR. The Managing General
Partner is hereby authorized to grant a Power of Attorney to the
Operator on behalf of the Partnership.
4.02(e). BORROWINGS AND USE OF PARTNERSHIP REVENUES.
4.02(e)(1). POWER TO BORROW OR USE PARTNERSHIP REVENUES. If additional
funds over the Partners' Capital Contributions are needed for
Partnership operations, the Managing General Partner may: (i) use
Partnership revenues allocable to the accounts of the Partners on whose
behalf such Partnership revenues are expended for such purposes; or (ii)
the Managing General Partner and its Affiliates may advance to the
Partnership the funds necessary pursuant to 4.03(d)(8)(b) which
borrowings (other than credit transactions on open account customary in
the industry to obtain goods and services) shall be without recourse to
the Investor General Partners and the Limited Partners except as
otherwise provided herein. Also, the amount that may be borrowed at any
one time (other than credit transactions on open account customary in
the industry to obtain goods and services) shall not exceed an amount
equal to 5% of the Partnership Subscription. Notwithstanding, the
Managing General Partner and it Affiliates shall not be obligated to
advance the funds to the Partnership.
4.02(e)(2). IMPLEMENTATION OF BORROWING PROVISIONS.
4.02(e)(2)(a). INDEMNIFICATION AND HOLD HARMLESS. Each party hereto for
whose account an interest in Partnership assets is mortgaged, pledged or
otherwise encumbered hereby indemnifies and agrees to hold harmless
every other party from any loss resulting from such mortgage, pledge or
encumbrance, limited to the amount of his agreed Capital Contribution.
4.02(e)(2)(b). FORECLOSURE. Should a foreclosure of a mortgage, pledge
or security interest permitted hereunder occur, any revenues, proceeds
and all taxable gain or loss resulting from such foreclosure shall be
allocated entirely to the party for whose account such interest was
pledged; and such party's interest in the remaining revenues of the
Partnership shall be reduced to take into account the foreclosure of the
interests foreclosed.
4.02(f). DESIGNATION OF TAX MATTERS PARTNER. Atlas is hereby designated
the Tax Matters Partner of the Partnership pursuant to
(a)(7) of the Code and is authorized to act in such capacity
on
behalf of the Partnership and the Participants and to take such action,
including settlement or litigation, as it in its sole discretion deems
to be in the best interest of the Partnership. Costs incurred by the Tax
Matters Partner shall be considered a Direct Cost of the Partnership.
The Tax Matters Partner shall notify all Participants of any partnership
administrative proceedings commenced by the Internal Revenue Service,
and thereafter shall furnish all Participants periodic reports at least
quarterly on the status of such proceedings. Each Partner agrees as
follows: (1) he will not file the statement described in Section
6224(c)(3)(B) of the Code prohibiting the Managing General Partner as
the Tax Matters Partner for the Partnership from entering into a
settlement on his behalf with respect to partnership items (as such term
is defined in Section 6231(a)(3) of Code) of the Partnership; (2) he
will not form or become and exercise any rights as a member of a group
of Partners having a 5% or greater interest in the profits of the
Partnership under Section 6223(b)(2) of the Code; and (3) the Managing
General Partner is authorized to file a copy of this Agreement (or
pertinent portions hereof) with the Internal Revenue Service pursuant to
Section 6224(b) of the Code if necessary to perfect the waiver of rights
under this Subsection 4.02(f).
4.03. GENERAL RIGHTS AND OBLIGATIONS OF THE PARTICIPANTS AND RESTRICTED
AND PROHIBITED TRANSACTIONS.
4.03(a)(1). LIMITED LIABILITY OF LIMITED PARTNERS. Limited Partners
shall not be bound by the obligations of the Partnership and shall not
be personally liable for any debts of the Partnership or any of the
obligations or losses thereof beyond the amount of their agreed Capital
Contributions, except to the extent such parties also subscribe to the
Partnership as Investor General Partners, or, in the case of Atlas, as
Managing General Partner.
4.03(a)(2). NO MANAGEMENT AUTHORITY OF PARTICIPANTS. Participants, as
such, shall have no power over the conduct of the affairs of the
Partnership; and no Participant, as such, shall take part in the
management of the business of the Partnership, or have the power to sign
for or to bind the Partnership.
4.03(b). REPORTS AND DISCLOSURES.
(1) Commencing with the 1997 calendar year, the Partnership
shall provide each Participant an annual report within 120 days after
the close of the calendar year, and commencing with the 1998 calendar
year, a report within 75 days after the end of the first six months of
its calendar year, containing, except as otherwise indicated, at least
the information set forth below:
(a) Audited financial statements of the Partnership,
including a balance sheet and statements of income, cash flow and
Partners' equity, all of which shall be prepared in accordance with
generally accepted accounting principles and accompanied by an auditor's
report containing an opinion of an independent public accountant
selected by the Managing General Partner stating that his audit was made
in accordance with generally accepted auditing standards and that in his
opinion such financial statements present fairly the financial position,
results of operations, partners' equity and cash flows in accordance
with generally accepted accounting principles. Semiannual reports need
not be audited.
(b) A summary itemization, by type and/or classification
of the total fees and compensation including any unaccountable, fixed
payment reimbursements for Administrative Costs and Operating Costs,
paid by the Partnership, or indirectly on behalf of the Partnership, to
the Managing General Partner, the Operator and their Affiliates. In
addition, Participants shall be provided the percentage that the annual
unaccountable, fixed fee reimbursement for Administrative Costs bears to
annual Partnership revenues.
(c) A description of each Prospect in which the
Partnership owns an interest, including the Cost, location, number of
acres under lease and the Working Interest owned therein by the
Partnership, except succeeding reports need contain only material
changes, if any, regarding such Prospects.
(d) A list of the wells drilled or abandoned by the Partnership
during the period of the report (indicating whether each of such wells
has or has not been completed), and a statement of the cost of each well
completed or abandoned. Justification shall be included for wells
abandoned after production has commenced.
(e) A description of all farmins and joint ventures, made during
the period of the report, including the Managing General Partner's
justification for the arrangement and a description of the material
terms.
(f) A schedule reflecting the total Partnership costs, the costs
paid by the Managing General Partner and the costs paid by the
Participants, the total Partnership revenues, the revenues received or
credited to the Managing General Partner and the revenues received and
credited to the Participants and a reconciliation of such expenses and
revenues in accordance with the provisions of Article V.
(2) The Partnership shall, by March 15 of each year, prepare, or
supervise the preparation of, and transmit to each Partner such
information as may be needed to enable such Partner to file his federal
income tax return, any required state income tax return and any other
reporting or filing requirements imposed by any governmental agency or
authority.
(3) Annually, beginning January 1, 1999, a computation of the total
oil and gas Proved Reserves of the Partnership and the present worth of
such reserves determined using a discount rate of 10%, a constant price
for the oil and basing the price of gas upon the existing gas contracts
shall be provided to each Participant along with each Participant's
interest therein. The reserve computations shall be based upon
engineering reports prepared by the Managing General Partner and
reviewed by an Independent Expert. There shall also be included an
estimate of the time required for the extraction of such reserves and a
statement that because of the time period required to extract such
reserves the present value of revenues to be obtained in the future is
less than if immediately receivable. In addition to the foregoing
computation and required estimate, as soon as possible, and in no event
more than ninety days after the occurrence of an event leading to
reduction of such reserves of the Partnership of 10% or more, excluding
reduction as a result of normal production, sales of reserves or product
price changes, a computation and estimate shall be sent to each
Participant.
(4) The cost of all such reports described in this (b) shall
be paid by the Partnership as Direct Costs.
(5) The Participants and/or their representatives shall be
permitted access to all records of the Partnership, after adequate
notice, at any reasonable time and may inspect and copy any of them. The
Managing General Partner will provide a copy of this Agreement or other
documents to the Participants after the Partnership's documents have
been filed with the Commonwealth of Pennsylvania upon request. The
Managing General Partner shall maintain and preserve during the term of
the Partnership and for six years thereafter all accounts, books and
other relevant documents, including a record that a Participant meets
the suitability standards established in connection with an investment
in the Partnership and of fair market value as set forth in
01(a)(3). Notwithstanding the foregoing, the Managing General
Partner may keep logs, well reports and other drilling and operating
data confidential for reasonable periods of time. The Managing General
Partner may release information concerning the operations of the
Partnership to such sources as are customary in the industry or required
by rule, regulation, or order of any regulatory body.
(6) The following provisions apply regarding access to the list of
Participants: (a) an alphabetical list of the names, addresses and
business telephone numbers of the Participants along with the number of
Units held by each of them (the "Participant List") shall be maintained
as a part of the books and records of the Partnership and shall be
available for inspection by any Participant or its designated agent at
the home office of the Partnership upon the request of the Participant;
(b) the Participant List shall be updated at least quarterly to reflect
changes in the information contained therein; (c) a copy of the
Participant List shall be mailed to any Participant requesting the
Participant List within ten days of the written request. The copy of the
Participant List shall be printed in alphabetical order, on white paper,
and in a readily readable type size (in no event smaller than 10-point
type). A reasonable charge for copy work shall be charged by the
Partnership; (d) the purposes for which a Participant may request a copy
of the Participant List include, without limitation, matters relating to
Participant's voting rights under this Agreement and the exercise of
Participant's rights under the federal proxy laws; and (e) if the
Managing General Partner neglects or refuses to exhibit, produce, or
mail a copy of the Participant List as requested, the Managing General
Partner shall be liable to any Participant requesting the list for the
costs, including attorneys fees, incurred by that Participant for
compelling the production of the Participant List, and for actual
damages suffered by any Participant by reason of such refusal or
neglect. It shall be a defense that the actual purpose and reason for
the requests for inspection or for a copy of the Participant List is to
secure the list of Participants or other information for the purpose of
selling such list or information or copies thereof, or of using the same
for a commercial purpose other than in the interest of the applicant as
a Participant relative to the affairs of the Partnership. The Managing
General Partner shall require the Participant requesting the Participant
List to represent in writing that the list was not requested for a
commercial purpose unrelated to the Participant's interest in the
Partnership. The remedies provided hereunder to Participants requesting
copies of the Participant List are in addition to, and shall not in any
way limit, other remedies available to Participants under federal law,
or the laws of any state.
(7) Concurrently with their transmittal to Participants, and as
required, the Managing General Partner shall file a copy of each report
provided for in this 3(b) with the Arkansas Securities Department,
the California Commissioner of Corporations, the Kentucky Department of
Financial Institutions, the Virginia State Corporation Commission and
with the securities commissions of other states which request the
report.
4.03(c). MEETINGS OF PARTICIPANTS. Meetings of the Participants may be
called by the Managing General Partner or by Participants whose Agreed
Subscriptions equal 10% or more of the Partnership Subscription for any
matters for which Participants may vote. Such call for a meeting shall
be deemed to have been made upon receipt by the Managing General Partner
of a written request from holders of the requisite percentage of Agreed
Subscriptions stating the purpose(s) of the meeting. The Managing
General Partner shall deposit in the United States mail within fifteen
days after the receipt of said request, written notice to all
Participants of the meeting and the purpose of such meeting, which shall
be held on a date not less than thirty days nor more than sixty days
after the date of the mailing of said notice, at a reasonable time and
place. Provided, however, that the date for notice of such a meeting may
be extended for a period of up to sixty days, if in the opinion of the
Managing General Partner such additional time is necessary to permit
preparation of proxy or information statements or other documents
required to be delivered in connection with such meeting by the
Securities and Exchange Commission or other regulatory authorities.
Participants shall have the right to vote in person or by proxy at any
meetings of the Participants.
4.03(c)(1). SPECIAL VOTING RIGHTS. At the request of Participants whose
Agreed Subscriptions equal 10% or more of the Partnership Subscription,
the Managing General Partner shall call for a vote by Participants. Each
Unit is entitled to one vote on all matters; each fractional Unit is
entitled to that fraction of one vote equal to the fractional interest
in the Unit. Participants whose Agreed Subscriptions equal a majority of
the Partnership Subscription may, without the concurrence of the
Managing General Partner or its Affiliates, vote to:
(a) amend this Agreement; provided however, any such amendment may
not increase the duties or liabilities of any Participant or the
Managing General Partner or increase or decrease the profit or loss
sharing or required Capital Contribution of any Participant or the
Managing General Partner without the approval of such Participant or the
Managing General Partner. Furthermore, any such amendment may not affect
the classification of Partnership income and loss for federal income tax
purposes without the unanimous approval of all Participants;
(b) dissolve the Partnership;
(c) remove the Managing General Partner and elect a new
Managing General Partner;
(d) elect a new Managing General Partner if the Managing
General Partner elects to withdraw from the Partnership;
(e) remove the Operator and elect a new Operator;
(f) approve or disapprove the sale of all or substantially all
of the assets of the Partnership; and
(g) cancel any contract for services with the Managing General
Partner, or the Operator or their Affiliates, without penalty upon sixty
days notice.
With respect to Units owned by the Managing General Partner or its
Affiliates, the Managing General Partner and its Affiliates may not vote
or consent on the matters set forth in (c) or (e) above, or regarding
any transaction between the Partnership and the Managing General Partner
or its Affiliates. In determining the requisite percentage in interest
of Units necessary to approve any Partnership matter on which the
Managing General Partner and its Affiliates may not vote or consent, any
Units owned by the Managing General Partner and its Affiliates shall not
be included.
4.03(c)(2). RESTRICTIONS ON LIMITED PARTNER VOTING RIGHTS. The exercise
by the Limited Partners of the rights granted Participants under
3(c), except for the special voting rights granted Participants under
4.03(c)(1), shall be subject to the prior legal determination that the
grant or exercise of such powers will not adversely affect the limited
liability of Limited Partners, unless in the opinion of counsel to the
Partnership, such legal determination is not necessary under
Pennsylvania law to maintain the limited liability of the Limited
Partners. A legal determination under this paragraph may be made either
pursuant to an opinion of counsel, such counsel being independent of the
Partnership and selected upon the vote of Limited Partners whose Agreed
Subscriptions equal a majority of the Agreed Subscriptions held by
Limited Partners, or a declaratory judgment issued by a court of
competent jurisdiction. The Investor General Partners may exercise the
rights granted to the Participants whether or not the Limited Partners
can participate in such vote if the Investor General Partners represent
the requisite percentage of the Participants necessary to take such
action.
4.03(d). RESTRICTED AND PROHIBITED TRANSACTIONS.
4.03(d)(1). EQUAL PROPORTIONATE INTEREST. When the Managing General
Partner or an Affiliate, excluding another Program in which the interest
of the Managing General Partner or its Affiliates is substantially
similar to or less than their interest in the
Partnership, sells, transfers or conveys any oil, gas or other mineral
interests or property to the Partnership, it must, at the same time,
sell to the Partnership an equal proportionate interest in all its other
property in the same Prospect. Notwithstanding, a Prospect shall be
deemed to consist of the drilling or spacing unit on which such well
will be drilled by the Partnership if the geological feature to which
such well will be drilled contains Proved Reserves and the drilling or
spacing unit protects against drainage. With respect to an oil and gas
Prospect located in Ohio and Pennsylvania on which a well will be
drilled by the Partnership to test the Clinton/Medina geologic formation
a Prospect shall be deemed to consist of the drilling and spacing unit
if it meets the test in the preceding sentence. Neither the Managing
General Partner nor its Affiliates may drill any well within 1,650 feet
of an existing Partnership Well in the Clinton/Medina formation in
Pennsylvania or within 1,100 feet of an existing Partnership Well in
Ohio within five years of the drilling of the Partnership Well. In the
event the Partnership abandons its interest in a well, this restriction
will continue for one year following the abandonment.
If the area constituting the Partnership's Prospect is subsequently
enlarged to encompass any area wherein the Managing General Partner or
an Affiliate, excluding another Program in which the interest of the
Managing General Partner or its Affiliates is substantially similar to
or less than their interest in the Partnership, owns a separate property
interest, such separate property interest or a portion thereof shall be
sold, transferred or conveyed to the Partnership as set forth in
4.01(a)(3), 4.03(d)(1) and 4.03(d)(2) if the activities of the
Partnership were material in establishing the existence of Proved
Undeveloped Reserves which are attributable to such separate property
interest. Notwithstanding, Prospects in the Clinton/Medina geological
formation shall not be enlarged or contracted if the Prospect was
limited to the drilling or spacing unit because the well was being
drilled to Proved Reserves in the Clinton/Medina geological formation
and the drilling or spacing unit protected against drainage.
4.03(d)(2). TRANSFER OF LESS THAN THE MANAGING GENERAL PARTNER'S AND
ITS AFFILIATES' ENTIRE INTEREST. A sale, transfer or a conveyance to the
Partnership of less than all of the ownership of the Managing General
Partner or an Affiliate, excluding another Program in which the interest
of the Managing General Partner or its Affiliates is substantially
similar to or less than their interest in the Partnership, in any
Prospect shall not be made unless the interest retained by the Managing
General Partner or the Affiliate is a proportionate Working Interest,
the respective obligations of the Managing General Partner or its
Affiliates and the Partnership are substantially the same after the sale
of the interest by the Managing General Partner or its Affiliates, and
the Managing General Partner's interest in revenues does not exceed the
amount proportionate to its retained Working Interest. Neither the
Managing General Partner nor any Affiliate will retain any Overriding
Royalty Interests or other burdens on an interest sold by it to the
Partnership. With respect to its retained interest the Managing General
Partner shall not Farmout a Lease for the primary purpose of avoiding
payment of its costs relating to drilling the Lease. This section does
not prevent the Managing General Partner or its Affiliates from
subsequently dealing with their retained interest as they may choose
with unaffiliated parties or Affiliated partnerships.
4.03(d)(3). TRANSFER OF LEASES TO THE MANAGING GENERAL PARTNER. The
Managing General Partner and its Affiliates shall not purchase any
producing or non-producing oil and gas properties from the Partnership.
4.03(d)(4). LIMITATIONS ON ACTIVITIES OF THE MANAGING GENERAL PARTNER
AND ITS AFFILIATES ON LEASES ACQUIRED BY THE PARTNERSHIP. During a
period of five years from the Offering Termination Date of the
Partnership, if the Managing General Partner or any of its Affiliates,
excluding another Program in which the interest of the Managing General
Partner or its Affiliates is substantially similar to or less than their
interest in the Partnership, proposes to acquire an interest, from an
unaffiliated person, in a Prospect in which the Partnership possesses an
interest or in a Prospect in which the Partnership's interest has been
terminated without compensation within one year preceding such proposed
acquisition, the following conditions shall apply:
(a) if the Managing General Partner or the Affiliate, excluding
another Program in which the interest of the Managing General Partner or
its Affiliates is substantially similar to or less than their interest
in the Partnership, does not currently own property in the Prospect
separately from the Partnership, then neither the Managing General
Partner nor the Affiliate shall be permitted to purchase an interest in
the Prospect; and
(b) if the Managing General Partner or the Affiliate, excluding
another Program in which the interest of the Managing General Partner or
its Affiliates is substantially similar to or less than their interest
in the Partnership, currently own a proportionate interest in the
Prospect separately from the Partnership, then the interest to be
acquired shall be divided between the Partnership and the Managing
General Partner or the Affiliate in the same proportion as is the other
property in the Prospect; provided, however, if cash or financing is not
available to the Partnership to enable it to consummate a purchase of
the additional interest to which it is entitled, then neither the
Managing General Partner nor the Affiliate shall be permitted to
purchase any additional interest in the Prospect.
4.03(d)(5). TRANSFER OF LEASES BETWEEN AFFILIATED LIMITED PARTNERSHIPS.
The Partnership shall not purchase properties from or sell properties to
any other Affiliated partnership. This prohibition, however, shall not
apply to joint ventures among such Affiliated partnerships, provided
that the respective obligations and revenue sharing of all parties to
the transaction are substantially the same and the compensation
arrangement or any other interest or right of either the Managing
General Partner or its Affiliates is the same in each Affiliated
partnership, or, if different, the aggregate compensation of the
Managing General Partner or the Affiliate is reduced to reflect the
lower compensation arrangement.
4.03(d)(6). SALE OF ALL ASSETS. The sale of all or substantially all of
the assets of the Partnership (including, without limitation, Leases,
wells, equipment and production therefrom) shall be made only with the
consent of Participants whose Agreed Subscriptions equal a majority of
the Partnership Subscription.
4.03(d)(7). SERVICES. The Managing General Partner and any Affiliate
shall not render to the Partnership any oil field, equipage or other
services nor sell or lease to the Partnership any equipment or related
supplies unless such person is engaged, independently of the Partnership
and as an ordinary and ongoing business, in the business of rendering
such services or selling or leasing such equipment and supplies to a
substantial extent to other persons in the oil and gas industry in
addition to the partnerships in which the Managing General Partner or an
Affiliate has an interest; and the compensation, price or rental
therefor is competitive with the compensation, price or rental of other
persons in the area engaged in the business of rendering comparable
services or selling or leasing comparable equipment and supplies which
could reasonably be made available to the Partnership. If such person is
not engaged in such a business then such compensation, price or rental
will be the Cost of such services, equipment or supplies to such person
or the competitive rate which
could be obtained in the area, whichever is less. Any such services for
which the Managing General Partner or an Affiliate is to receive
compensation other than those described in this Prospectus shall be
embodied in a written contract which precisely describes the services to
be rendered and all compensation to be paid. Such contracts are
cancellable without penalty upon sixty days written notice by
Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription.
4.03(d)(8). LOANS.
4.03(d)(8)(a). LOANS FROM THE PARTNERSHIP. No loans or advances shall
be made by the Partnership to the Managing General Partner or any
Affiliate.
4.03(d)(8)(b). LOANS TO THE PARTNERSHIP. Neither the Managing General
Partner nor any Affiliate shall loan money to the Partnership where the
interest to be charged exceeds the Managing General Partner's or the
Affiliate's interest cost or where the interest to be charged exceeds
that which would be charged to the Partnership (without reference to the
Managing General Partner's or the Affiliate's financial abilities or
guarantees) by unrelated lenders, on comparable loans for the same
purpose, and neither the Managing General Partner nor any Affiliate
shall receive points or other financing charges or fees, regardless of
the amount, although the actual amount of such charges incurred from
third-party lenders may be reimbursed to the Managing General Partner or
the Affiliate.
4.03(d)(9). FARMOUTS. The Partnership shall not Farmout its Leases.
4.03(d)(10). COMPENSATING BALANCES. Neither the Managing General
Partner nor any Affiliate shall use the Partnership's funds as
compensating balances for its own benefit.
4.03(d)(11). FUTURE PRODUCTION. Neither the Managing General Partner
nor any Affiliate shall commit the future production of a well developed
by the Partnership exclusively for its own benefit.
4.03(d)(12). MARKETING ARRANGEMENTS. All benefits from marketing
arrangements or other relationships affecting property of the Managing
General Partner or its Affiliates and the Partnership shall be fairly
and equitably apportioned according to the respective interests of each
in such property. The Managing General Partner shall treat all wells in
a geographic area equally concerning to whom and at what price the
Partnership's gas will be sold and to whom and at what price the gas of
other oil and gas Programs which the Managing General Partner has
sponsored or will sponsor will be sold. The Managing General Partner
calculates a weighted average selling price for all of the gas sold in a
geographic area by taking all money received from the sale of all of the
gas sold to its customers in a geographic area and dividing by the
volume of all gas sold from the wells in that geographic area.
Notwithstanding, the Managing General Partner and its Affiliates are
parties to, and contract for, the sale of natural gas with industrial
end-users and will continue to enter into such contracts on their own
behalf, and the Partnership will not be a party to such contracts. The
Managing General Partner and its Affiliates also have a substantial
interest in certain pipeline facilities and compression facilities which
access interstate pipeline systems, which it is anticipated will be used
to transport the Partnership's gas production as well as Affiliated
partnership and third-party gas production, and the Partnership will not
receive any interest in the Managing General Partner's and its
Affiliates' pipeline or gathering system or compression facilities.
4.03(d)(13). ADVANCE PAYMENTS. Advance payments by the Partnership to
the Managing General Partner and its Affiliates are prohibited, except
where advance payments are required to secure the tax benefits of
prepaid drilling costs and for a business purpose. These advance
payments, if any, shall not include nonrefundable payments for
completion costs prior to the time that a decision was made that the
well or wells warrant a completion attempt.
4.03(d)(14). NO REBATES. No rebates or give-ups may be received by the
Managing General Partner or any Affiliate nor may the Managing General
Partner or any Affiliate participate in any reciprocal business
arrangements which would circumvent these guidelines.
4.03(d)(15). PARTICIPATION IN OTHER PARTNERSHIPS. If the Partnership
participates in other partnerships or joint ventures (multi-tier
arrangements), the terms of any such arrangements shall not result in
the circumvention of any of the requirements or prohibitions contained
in this Agreement, including the following: (i) there shall be no
duplication or increase in organization and offering expenses, the
Managing General Partner's compensation, Partnership expenses or other
fees and costs; (ii) there shall be no substantive alteration in the
fiduciary and contractual relationship between the Managing General
Partner and the Participants; and (iii) there shall be no diminishment
in the voting rights of the Participants.
4.03(d)(16). ROLL-UP LIMITATIONS. In connection with a proposed RollUp,
the following shall apply:
(a) An appraisal of all Partnership assets shall be obtained from a
competent Independent Expert. If the appraisal will be included in a
prospectus used to offer securities of a Roll-Up Entity, the appraisal
shall be filed with the Securities and Exchange Commission and the
Administrator as an exhibit to the registration statement for the
offering. Accordingly, an issuer using the appraisal shall be subject to
liability for violation of Section 11 of the Securities Act of 1933 and
comparable provisions under state law for any material
misrepresentations or material omissions in the appraisal. Partnership
assets shall be appraised on a consistent basis. The appraisal shall be
based on all relevant information, including current reserve estimates
prepared by an independent petroleum consultant, and shall indicate the
value of the Partnership's assets as of a date immediately prior to the
announcement of the proposed Roll-Up transaction. The appraisal shall
assume an orderly liquidation of the Partnership's assets over a twelve
month period. The terms of the engagement of the Independent Expert
shall clearly state that the engagement is for the benefit of the
Partnership and the Participants. A summary of the independent
appraisal, indicating all material assumptions underlying the appraisal,
shall be included in a report to the Participants in connection with a
proposed Roll-Up.
(b) In connection with a proposed Roll-Up, Participants who vote
"no" on the proposal shall be offered the choice of:
(1) accepting the securities of the Roll-Up Entity offered in the
proposed Roll-Up;
(2) remaining as Participants in the Partnership and preserving
their interests therein on the same terms and conditions as existed
previously; or
(3) receiving cash in an amount equal to the Participants' pro rata
share of the appraised value of the net assets of the Partnership.
(c) The Partnership shall not participate in any proposed Roll-Up
which, if approved, would result in the diminishment of any
Participant's voting rights under the Roll-Up Entity's chartering
agreement. In no event shall the democracy rights of Participants in the
Roll-Up Entity be less than those provided for under 4.03(c) and
4.03(c)(1) of this Agreement. If the Roll-Up Entity is a corporation,
the democracy rights of Participants shall correspond to the democracy
rights provided for in this Agreement to the greatest extent possible.
(d) The Partnership shall not participate in any proposed Roll-Up
transaction which includes provisions which would operate to materially
impede or frustrate the accumulation of shares by any purchaser of the
securities of the Roll-Up Entity (except to the minimum extent necessary
to preserve the tax status of the Roll-Up Entity); nor shall the
Partnership participate in any proposed Roll-Up transaction which would
limit the ability of a Participant to exercise the voting rights of its
securities of the Roll-Up Entity on the basis of the number of Units
held by that Participant.
(e) The Partnership shall not participate in a Roll-Up in which
Participants' rights of access to the records of the Roll-Up Entity will
be less than those provided for under 4.03(b)(5) and 4.03(b)(6) of this
Agreement.
(f) The Partnership shall not participate in any proposed Roll-Up
transaction in which any of the costs of the transaction would be borne
by the Partnership if less than 75% in interest of the Participants vote
to approve the proposed Roll-Up.
(g) The Partnership shall not participate in a Roll-Up transaction
unless the Roll-Up transaction is approved by Participants whose Agreed
Subscriptions equal 75% of the Partnership Subscription.
4.03(d)(17). DISCLOSURE OF BINDING AGREEMENTS. Any agreement or
arrangement which binds the Partnership must be disclosed in the
Prospectus.
4.03(d)(18) FAIR AND REASONABLE. Neither the Managing General Partner
nor any Affiliate will sell, transfer, or convey any property to or
purchase any property from the Partnership, directly or indirectly,
except pursuant to transactions that are fair and reasonable, nor take
any action with respect to the assets or property of the Partnership
which does not primarily benefit the Partnership.
4.04. DESIGNATION, COMPENSATION AND REMOVAL OF MANAGING GENERAL PARTNER
AND REMOVAL OF OPERATOR.
4.04(a). MANAGING GENERAL PARTNER.
4.04(a)(1). TERM OF SERVICE. Atlas shall serve as the Managing General
Partner of the Partnership until it is removed pursuant to 4.04(a)(3).
4.04(a)(2). COMPENSATION OF MANAGING GENERAL PARTNER. Charges by the
Managing General Partner for goods and services must be fully
supportable as to the necessity thereof and the reasonableness of the
amount charged. All actual and necessary expenses incurred by the
Partnership may be paid out of the Partnership Subscription and out of
Partnership revenues.
In addition to the compensation set forth in 4.01(a)(3) and
4.02(d)(1) Atlas, as Managing General Partner, and its Affiliates shall
be reimbursed for all Direct Costs and credited pursuant to 5.01(a)
for Organization and Offering Costs not exceeding 15% of the Partnership
Subscription; provided, however, Direct Costs shall be billed directly
to and paid by the Partnership to the extent practicable. In addition,
subject to the above paragraph, Atlas shall receive an unaccountable,
fixed payment reimbursement for its Administrative Costs of $75 per well
per month, which shall be proportionately reduced to the extent the
Partnership acquires less than 100% of the Working Interest in the well.
The unaccountable, fixed payment reimbursement of $75 per well per month
shall not be increased in amount during the term of the Partnership.
Further, Atlas, as Managing General Partner, shall not be reimbursed for
any additional Partnership Administrative Costs and the unaccountable,
fixed payment reimbursement of $75 per well per month shall be the
entire payment to reimburse Atlas for the Partnership's Administrative
Costs. Finally, Atlas, as Managing General Partner, shall not receive
the unaccountable, fixed payment reimbursement of $75 per well per month
for plugged or abandoned wells.
Atlas and its Affiliates shall also receive a combined transportation
and marketing fee at a competitive rate for transporting and marketing
the Partnership's gas.
The Dealer-Manager will receive from the Partnership on each Unit sold
to investors, a 2.5% Dealer-Manager fee, a 7.5% Sales Commission and a
.5% reimbursement of the Selling Agents' bona fide accountable due
diligence expenses.
The Managing General Partner and its Affiliates may enter into
transactions pursuant to 4.03(d)(7) and shall be entitled to
compensation pursuant to such section. In addition, the Managing General
Partner and its Affiliates shall receive compensation as set forth in
the Drilling and Operating Agreement.
4.04(a)(3). REMOVAL OF MANAGING GENERAL PARTNER. The Managing General
Partner may be removed and a new Managing General Partner or Managing
General Partners may be substituted at any time upon sixty days advance
written notice to the outgoing Managing General Partner, by the
affirmative vote of Participants whose Agreed Subscriptions equal a
majority of the Partnership Subscription. Should Participants vote to
remove the Managing General Partner from the Partnership, Participants
must elect by an affirmative vote of Participants whose Agreed
Subscriptions equal a majority of the Partnership Subscription either to
terminate, dissolve and wind up the Partnership or to continue as a
successor limited partnership under all the terms of this Partnership
Agreement, as provided in 7.01(c). If the Participants elect to continue
as a successor limited partnership, the Managing General Partner shall
not be removed until a substituted Managing General Partner has been
selected by an affirmative vote of Participants whose Agreed
Subscriptions equal a majority of the Partnership Subscription and
installed as such.
In the event the Managing General Partner is removed, the Managing
General Partner's interest in the Partnership shall be determined by
appraisal by a qualified Independent Expert selected by mutual agreement
between the removed Managing General Partner and the incoming Managing
General Partner, such appraisal to take into account an appropriate
discount, to reflect the risk of recovery of oil and gas reserves, but
not less than that utilized in the most recent repurchase offer, if any.
The cost of such appraisal shall be borne equally by the removed
Managing General Partner and the Partnership. The incoming Managing
General Partner shall have the option to purchase 20% of the removed
Managing General Partner's interest for the value determined by the
Independent Expert.
The method of payment for such interest must be fair and must protect
the solvency and liquidity of the Partnership. Where the termination is
voluntary, the method of payment shall be a non-interest bearing
unsecured promissory note with principal payable, if at all, from
distributions which the Managing General Partner otherwise would have
received under the Partnership Agreement had the Managing General
Partner not been terminated. Where the termination is involuntary, the
method of payment shall be an interest bearing promissory note coming
due in no less than five years with equal installments each year. The
interest rate shall be that charged on comparable loans. The removed
Managing General Partner, at the time of its removal shall cause, to the
extent it is legally possible, its successor to be transferred or
assigned all its rights, obligations and interests as Managing General
Partner of the Partnership in contracts entered into by it on behalf of
the Partnership. In any event, the removed Managing General Partner
shall cause its rights, obligations and interests as Managing General
Partner of the Partnership in any such contract to terminate at the time
of its removal. Notwithstanding any other provision in this
Agreement, the Partnership or the successor Managing General Partner
shall not be a party to any gas purchase agreement that Atlas or its
Affiliates enters into with a third party and shall not have any rights
pursuant to such gas purchase agreement. Further, the Partnership or the
successor Managing General Partner shall not receive any interest in
Atlas' and its Affiliates' pipeline or gathering system or compression
facilities.
At any time commencing ten years after the Offering Termination Date of
the Partnership and the Partnership's primary drilling activities, the
Managing General Partner may voluntarily withdraw as Managing General
Partner upon giving 120 days' written notice of withdrawal to the
Participants and its interest in the Partnership shall be determined as
provided above with respect to removal. Such interest shall be
distributed to the Managing General Partner as described above with
respect to voluntary removal, subject to the option of any successor
Managing General Partner to purchase 20% of such interest at the value
determined as described above with respect to removal.
The Managing General Partner has the right at any time to withdraw a
property interest held by the Partnership in the form of a Working
Interest in the Partnership Wells equal to or less than its respective
interest in the revenues of the Partnership pursuant to the conditions
set forth in 6.03. The Managing General Partner shall fully indemnify
the Partnership against any additional expenses which may result from a
partial withdrawal of its interests and such withdrawal may not result
in a greater amount of Direct Costs or Administrative Costs being
allocated to the Participants. The expenses of withdrawing shall be
borne by the withdrawing Managing General Partner.
4.04(a)(4). REMOVAL OF OPERATOR. The Operator may be removed and a new
Operator may be substituted at any time upon 60 days advance written
notice to the outgoing Operator by the Managing General Partner acting
on behalf of the Partnership upon the affirmative vote of Participants
whose Agreed Subscriptions equal a majority of the Partnership
Subscription. The Operator shall not be removed until a substituted
Operator has been selected by an affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription
and installed as such.
4.05. INDEMNIFICATION AND EXONERATION.
4.05(a). GENERAL STANDARDS. The Managing General Partner, the Operator
and their Affiliates shall have no liability whatsoever to the
Partnership or to any Participant for any loss suffered by the
Partnership or Participants which arises out of any action or inaction
of the Managing General Partner, the Operator or their Affiliates if the
Managing General Partner, the Operator and their Affiliates, determined
in good faith that such course of conduct was in the best interest of
the Partnership, the Managing General Partner, the Operator and their
Affiliates were acting on behalf of or performing services for the
Partnership and such course of conduct did not constitute negligence or
misconduct of the Managing General Partner, the Operator or their
Affiliates.
The Managing General Partner, the Operator and their Affiliates shall be
indemnified by the Partnership against any losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims
sustained by them in connection with the Partnership, provided that the
Managing General Partner, the Operator and their Affiliates determined
in good faith that the course of conduct which caused the loss or
liability was in the best interest of the Partnership, the Managing
General Partner, the Operator and their Affiliates were acting on behalf
of or performing services for the Partnership and such course of conduct
was not the result of negligence or misconduct of the Managing General
Partner, the Operator or their Affiliates.
Provided, however, payments arising from such indemnification or
agreement to hold harmless are recoverable only out of the tangible net
assets of the Partnership, including any insurance proceeds.
Notwithstanding anything to the contrary contained in the above, the
Managing General Partner, the Operator and their Affiliates and any
person acting as a broker-dealer shall not be indemnified for any
losses, liabilities or expenses arising from or out of an alleged
violation of federal or state securities laws by such party unless (1)
there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular
indemnitee; (2) such claims have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the particular
indemnitee, or (3) a court of competent jurisdiction approves a
settlement of the claims against a particular indemnitee and finds that
indemnification of the settlement and the related costs should be made,
and the court considering the request for indemnification has been
advised of the position of the Securities and Exchange Commission, the
Massachusetts Securities Division, and the position of any state
securities regulatory authority in which plaintiffs claim they were
offered or sold Partnership Units, with respect to the issue of
indemnification for violation of securities laws.
The advancement of Partnership funds to the Managing General Partner or
its Affiliates for legal expenses and other costs incurred as a result
of any legal action for which indemnification is being sought is
permissible only if the Partnership has adequate funds available and the
following conditions are satisfied: (1) the legal action relates to acts
or omissions with respect to the performance of duties or services on
behalf of the Partnership; (2) the legal action is initiated by a third
party who is not a Participant, or the legal action is initiated by a
Participant and a court of competent jurisdiction specifically approves
such advancement; and (3) the Managing General Partner or its Affiliates
undertake to repay the advanced funds to the Partnership, together with
the applicable legal rate of interest thereon, in cases in which such
party is found not to be entitled to indemnification.
The Partnership shall not bear the cost of that portion of insurance
which insures the Managing General Partner, the Operator or their
Affiliates for any liability for which the Managing General Partner, the
Operator or their Affiliates could not be indemnified pursuant to the
first two paragraphs of this 4.05(a).
4.05(b). LIABILITY OF PARTNERS. Pursuant to the Pennsylvania Revised
Uniform Limited Partnership Act the Investor General Partners are liable
jointly and severally for all liabilities and obligations of the
Partnership. Notwithstanding the foregoing, as among themselves, the
Investor General Partners hereby agree that each shall be solely and
individually responsible only for his pro rata share of the liabilities
and obligations of the Partnership. In addition, Atlas and Atlas Group
agree to use their corporate assets and not the assets of the
Partnership to indemnify each of the Investor General Partners against
all Partnership related liabilities which exceed such Investor General
Partner's interest in the undistributed net assets of the Partnership
and insurance proceeds, if any. Further, Atlas and Atlas Group agree to
indemnify each Investor General Partner against any personal liability
as a result of the unauthorized acts of another Investor General
Partner. Upon such indemnification by Atlas and Atlas Group, each
Investor General Partner who has been indemnified shall and does hereby
transfer and subrogate his rights for contribution from or against any
other Investor General Partner to Atlas and/or Atlas Group.
4.05(c). ORDER OF PAYMENT. Claims shall be paid first out of any
insurance proceeds, next out of the assets and revenues of the
Partnership, and finally by the Managing General Partner as provided in
3.05(b) and 4.05(b). No Limited Partner shall be required to reimburse
the Managing General Partner, the Operator or their
Affiliates or the Investor General Partners for any liability in excess
of his agreed Capital Contribution, except for a liability resulting
from such Limited Partner's unauthorized participation in Partnership
management, or from some other breach by such Limited Partner of this
Agreement.
4.05(d). AUTHORIZED TRANSACTIONS. No transaction entered into or action
taken by the Partnership or the Managing General Partner, the Operator
or their Affiliates, which is authorized by this Agreement to be entered
into or taken with such party shall be deemed a breach of any obligation
owed by the Managing General Partner, the Operator or their Affiliates
to the Partnership or the Participants.
4.06. OTHER ACTIVITIES. The Managing General Partner, the Operator and
their Affiliates are now engaged, and will engage in the future, for
their own account and for the account of others, including other
investors, in all aspects of the oil and gas business, including,
without limitation, the evaluation, acquisition and sale of producing
and nonproducing Leases, and the exploration for and production of oil,
gas, and other minerals. The Managing General Partner is required to
devote only so much of its time as is necessary to manage the affairs of
the Partnership. Except as expressly provided to the contrary in this
Agreement, and subject to fiduciary duties, such parties may continue
such activities, or initiate further such activities, individually,
jointly with others, or as a part of any other limited or general
partnership, tax partnership, joint venture, or other entity or activity
to which they are or may become a party, in any locale and in the same
fields, areas of operation or prospects in which the Partnership may
likewise be active; may reserve partial interests in Leases being
assigned to the Partnership or any other interests not expressly
prohibited by this Agreement; may deal with the Partnership as
independent parties or through any other entity in which they may be
interested; may conduct business with the Partnership as set forth
herein; may participate in such other investor operations, as investors
or otherwise; and shall not be required to permit the Partnership or the
Participants to participate in any such operations in which they may be
interested or share in any profits or other benefits therefrom. However,
except as otherwise provided herein, the Managing General Partner and
any of its Affiliates may pursue business opportunities that are
consistent with the Partnership's investment objectives for their own
account only after they have determined that such opportunity either
cannot be pursued by the Partnership because of insufficient funds or
because it is not appropriate for the Partnership under the existing
circumstances. Atlas or its Affiliates may manage multiple programs
simultaneously. Notwithstanding any other provision in this Agreement,
the Partnership shall not be a party to any gas supply agreement that
Atlas or its Affiliates enters into with a third party and shall not
have any rights pursuant to such gas supply agreement. Further, the
Partnership shall not receive any interest in Atlas' and its Affiliates'
pipeline or gathering system or compression facilities.
ARTICLE V
PARTICIPATION IN COSTS AND REVENUES,
CAPITAL ACCOUNTS, ELECTIONS AND DISTRIBUTIONS
5.01. PARTICIPATION IN COSTS AND REVENUES. Except as otherwise provided
in this Agreement, costs and revenues shall be charged and credited to
the Managing General Partner and the Participants as set forth in this
5.01 and its subsections.
5.01(a). COSTS. Costs shall be charged as follows:
(1) Organization and Offering Costs shall be charged 100% to the
Managing General Partner. For purposes of sharing in revenues, pursuant
to 5.01(b)(4), the Managing General Partner shall be credited with
Organization and Offering Costs up to and including 15% of the
Partnership Subscription which were paid by the Managing General
Partner. Notwithstanding, Organization and Offering Costs in excess of
15% of the Partnership Subscription shall be charged 100% to the
Managing General Partner without recourse to the Partnership and the
Managing General Partner shall not be credited with such amounts towards
its required Capital Contribution.
(2) Intangible Drilling Costs shall be charged 100% to the
Participants.
(3) Tangible Costs shall be charged 14% to the Managing General
Partner and 86% to the Participants.
(4) Operating Costs, Direct Costs, Administrative Costs and all
other Partnership costs not specifically allocated shall be charged 75%
to the Participants and 25% to the Managing General Partner. Provided,
however, in the event a portion of the Managing General Partner's
Partnership Net Production Revenues are subordinated pursuant to
5.01(b)(4), all such Operating Costs, Direct Costs, Administrative Costs
and all other Partnership costs not specifically allocated shall be
charged between the Managing General Partner and the Participants in the
same ratio as the related production revenues are being credited.
Intangible Drilling Costs and the Participants' share of Tangible Costs
of a well or wells to be drilled and completed with the proceeds of a
Partnership closing shall be charged 100% to the Participants who are
admitted to the Partnership in such closing and shall not be reallocated
to take into account other Partnership closings.
5.01(b). REVENUES. Revenues of the Partnership from all sources and
wells shall be commingled and credited as follows:
(1) If the Partners' Capital Accounts are adjusted to reflect the
simulated depletion of an oil or gas property of the Partnership, the
portion of the total amount realized by the Partnership upon the taxable
disposition of such property that represents recovery of its simulated
tax basis therein shall be allocated to the Partners in the same
proportion as the aggregate adjusted tax basis of such property was
allocated to such Partners (or their predecessors in interest). If the
Partners' Capital Accounts are adjusted to reflect the actual depletion
of an oil or gas property of the Partnership, the portion of the total
amount realized by the Partnership upon the taxable disposition of such
property that equals the Partners' aggregate remaining adjusted tax
basis therein shall be allocated to the Partners in proportion to their
respective remaining adjusted tax bases in such property. Thereafter,
any excess shall be allocated to Atlas in an amount equal to the
difference between the fair market value of the Lease at the time it was
contributed to the Partnership and its simulated or actual adjusted tax
basis at such time. Finally, any excess shall be credited to the parties
in accordance with the sharing ratios provided in (4), below. In the
event of a sale of developed oil and gas properties with equipment
thereon, the Managing General Partner may make any reasonable allocation
of proceeds between the equipment and the Leases.
(2) Interest earned on Agreed Subscriptions before the Offering
Termination Date pursuant to 3.05(b) shall be credited to the accounts
of the respective subscribers who paid such subscriptions to the
Partnership and paid approximately eight weeks after the Offering
Termination Date. After the Offering Termination Date and until proceeds
from the offering are invested in the Partnership's oil and gas
operations, any interest income from temporary investments shall be
allocated pro rata to the Participants providing such Agreed
Subscriptions. All other interest income, including interest earned on
the deposit of production revenues, shall be credited as provided in
(4), below.
(3) Proceeds from the sale or disposition of equipment shall be
credited to the parties charged with the costs of such equipment in the
ratio in which such costs were charged.
(4) All other revenues of the Partnership shall be credited 75% to
the Participants and 25% to the Managing General Partner.
Notwithstanding, the Managing General Partner shall subordinate a part
of its Partnership production revenues in an amount up to 10% of the
Partnership's Net Production Revenues net of the related costs as
provided in 5.01(a)(4), to the receipt by Participants of cash
distributions from the Partnership equal to 10% of their Agreed
Subscriptions in each of the first five twelve-month periods of
Partnership operations commencing with the first distribution of
revenues to the Participants. In this regard, however, the Managing
General Partner shall not subordinate an amount greater than 10% of the
Partnership's production revenues net of the related costs as provided
in 5.01(a)(4) in any such distribution period. The subordination shall
be determined by:
(i) carrying forward to subsequent twelve-month periods the amount,
if any, by which cumulative cash distributions to Participants
(including any subordination payments) are less than 10% of
Participants' Agreed Subscriptions in the first twelve-month period, 20%
of Participants' Agreed Subscriptions in the second twelve-month
period, 30% of Participants' Agreed Subscriptions in the third twelve
month period, or 40% of Participants' Agreed Subscriptions in the fourth
twelve-month period (no carry forward is required if such distributions
are less than 50% of Participants' Agreed Subscriptions in the fifth
twelve-month period because the Managing General Partner's subordination
obligation terminates upon the expiration of the fifth twelve-month
period) ; and
(ii) reimbursing the Managing General Partner for any previous
subordination payments to the extent cumulative cash distributions to
Participants (including any subordination payments) would exceed 10% of
Participants' Agreed Subscriptions in the first twelve-month period, 20%
of Participants' Agreed Subscriptions in the second twelve-month period,
30% of Participants' Agreed Subscriptions in the third twelvemonth
period, 40% of Participants' Agreed Subscriptions in the fourth twelve-
month period, or 50% of Participants' Agreed Subscriptions in the fifth
twelve-month period.
The Managing General Partner's subordination obligation shall be
determined and paid at the time of each Partnership distribution during
the subordination period, and may be prorated in the Managing General
Partner's discretion (e.g. in the case of a quarterly distribution, the
Managing General Partner will not have any subordination obligation if
the distributions to Participants equal 2.5% or more of their Agreed
Subscriptions assuming there is no subordination owed for any preceding
periods). The Managing General Partner shall not be required to return
Partnership distributions previously received by it, even though a
subordination obligation arises subsequent to such distributions, and no
subordination payments to Participants or reimbursements to the Managing
General Partner shall be made after the expiration of the fifth twelve-
month subordination period. Subject to the foregoing provisions of this
5.01(b)(4), only Partnership revenues in the
current distribution period shall be debited or credited to the Managing
General Partner as may be necessary to provide, to the extent possible,
such distributions to the Participants and reimbursements to the
Managing General Partner.
The revenues from all Partnership wells will be commingled, so
regardless of when a Participant subscribes he will share in the
revenues from all wells on the same basis as the other Participants.
5.01(c). ALLOCATIONS.
5.01(c)(1). ALLOCATIONS AMONG PARTICIPANTS. Except as provided
otherwise in this Agreement, costs and revenues shared or credited to
the Participants as a group shall be allocated among the Participants
(including the Managing General Partner to the extent of any optional
subscription pursuant to 3.03(b)(2)) in the ratio of their respective
Agreed Subscriptions.
5.01(c)(2). COSTS AND REVENUES NOT DIRECTLY ALLOCABLE TO A PARTNERSHIP
WELL. Costs and revenues not directly allocable to a particular
Partnership Well or additional operation shall be allocated among the
Partnership Wells or additional operations in any manner the Managing
General Partner in its reasonable discretion, shall select, and shall
then be charged or credited in the same manner as costs or revenues
directly applicable to such Partnership Well or additional operation are
being charged or credited.
5.01(c)(3). DISCRETION IN MAKING ALLOCATIONS. In determining the
proper method of allocating charges or credits among the parties, or in
making any other allocations hereunder, the Managing General Partner may
adopt any method of allocation which it, in its reasonable discretion,
selects, if, in its sole discretion based on advice from its legal
counsel or accountants, a revision to such allocations is required for
such allocations to be recognized for federal income tax purposes either
because of the promulgation of Treasury Regulations or other
developments in the tax law. Any new allocation provisions shall be
provided by an amendment to this Agreement and shall be made in a manner
that would result in the most favorable aggregate consequences to the
Participants as nearly as possible consistent with the original
allocations described herein.
5.02. CAPITAL ACCOUNTS AND ALLOCATIONS THERETO.
5.02(a). CAPITAL ACCOUNTS. A single, separate Capital Account shall be
established for each party to this Agreement, regardless of the number
of interests owned by such party, the class of the interests and the
time or manner in which such interests were acquired.
5.02(b). CHARGES AND CREDITS. Except as otherwise provided in this
Agreement, the Capital Account of each party shall be determined and
maintained in accordance with Treas. Reg. 1.704-l(b)(2)(iv) and shall be
increased by: (i) the amount of money contributed by him to the
Partnership; (ii) the fair market value of property contributed by him
(without regard to 7701(g) of the Code) to the Partnership (net of
liabilities secured by the contributed property that the Partnership is
considered to assume or take subject to under 752 of the Code); and
(iii) allocations to him of Partnership income and gain (or items
thereof), including income and gain exempt from tax and income and gain
described in Treas. Reg. 1.704-l(b)(2)(iv)(g), but excluding income
and gain described in Treas. Reg. 1.704-l(b)(4)(i); and shall be
decreased by (iv) the amount of money distributed to him by the
Partnership; (v) the fair market value of property distributed to him
(without regard to 7701(g) of the Code) by the Partnership (net of
liabilities secured by the distributed property that he is considered to
assume or take subject to under 752 of the Code); (vi) allocations to
him of Partnership expenditures described in 705(a)(2)(B) of the Code;
and (vii) allocations to him of Partnership loss and deduction (or items
thereof), including loss and deduction described in Treas. Reg. 1.704-
l(b)(2)(iv)(g), but excluding items described in (vi) above, and loss or
deduction described in Treas. Reg. 1.704-l(b)(4)(i) or (iii). If Treas.
Reg. 1.704-l(b)(2)(iv)fails to provide guidance, Capital Account
adjustments shall be made in a manner that: (i)
maintains equality between the aggregate governing Capital Accounts of
the Partners and the amount of Partnership capital reflected on the
Partnership's balance sheet, as computed for book purposes; (ii) is
consistent with the underlying economic arrangement of the Partners; and
(iii) is based, wherever practicable, on federal tax accounting
principles.
5.02(c). PAYMENTS TO THE MANAGING GENERAL PARTNER. The Capital Account
of the Managing General Partner shall be reduced by payments to it
pursuant to 4.04(a)(2) only to the extent of the Managing General
Partner's distributive share of any Partnership deduction, loss, or
other downward Capital Account adjustment resulting from such payments.
5.02(d). DISCRETION OF MANAGING GENERAL PARTNER. Notwithstanding any
other provisions of this Agreement, the method of maintaining Capital
Accounts may be changed from time to time, in the discretion of the
Managing General Partner, to take into consideration 704 and other
provisions of the Code and such rules, regulations and interpretations
relating thereto as may exist from time to time.
5.02(e). REVALUATIONS OF PROPERTY. In the discretion of the Managing
General Partner the Capital Accounts of the Partners may be increased or
decreased to reflect a revaluation of Partnership property, including
intangible assets such as goodwill, (on a property-byproperty basis
except as otherwise permitted under 704(c) of the Code and the
regulations thereunder) on the Partnership's books, in accordance with
Treas. Reg. 1.704-l(b)(2)(iv)(f).
5.02(f). AMOUNT OF BOOK ITEMS. In cases where 704(c) of the Code or
5.02(e) applies, Capital Accounts shall be adjusted in accordance with
Treas. Reg. 1.704-l(b)(2)(iv)(g) for allocations of depreciation,
depletion, amortization and gain and loss, as computed for book
purposes, with respect to such property.
5.03. ALLOCATION OF INCOME, DEDUCTIONS AND CREDITS.
5.03(a). IN GENERAL. To the extent permitted by law and except as
otherwise provided in this Agreement, all deductions and credits,
including, but not limited to, intangible drilling and development costs
and depreciation, shall be allocated to the party who has been charged
with the expenditure giving rise to such deductions and credits; and to
the extent permitted by law, such parties shall be entitled to such
deductions and credits in computing taxable income or tax liabilities to
the exclusion of any other party. Except as otherwise provided in this
Agreement, all items of income and gain, including gain on disposition
of assets, shall be allocated in accordance with the related revenue
allocations set forth in 5.01(b) and its subsections.
5.03(b). TAX BASIS. Subject to 704(c) of the Code, the tax basis of
each oil and gas property for computation of cost depletion and gain or
loss on disposition shall be allocated and reallocated when necessary
based upon the capital interest in the Partnership as to such property
and the capital interest in the Partnership for such purpose as to each
property shall be considered to be owned by the parties hereto in the
ratio in which the expenditure giving rise to the tax basis of such
property has been charged as of the end of the year.
5.03(c). GAIN OR LOSS ON OIL AND GAS PROPERTIES. Each party shall
separately compute its gain or loss on the disposition of each oil and
gas property in accordance with the provisions of 613A(c)(7)D) of the
Code, and the calculation of such gain or loss shall consider the
party's adjusted basis in his property interest computed as provided in
5.03(b) and the party's allocable share of the amount realized from
the disposition of the property.
5.03(d). GAIN ON DEPRECIABLE PROPERTY. Gain from each sale or other
disposition of depreciable property shall be allocated to each party
whose share of the proceeds from such sale or other disposition exceeds
its contribution to the adjusted basis of the property in the ratio that
such excess bears to the sum of the excesses of all parties having such
an excess.
5.03(e). LOSS ON DEPRECIABLE PROPERTY. Loss from each sale, abandonment
or other disposition of depreciable property shall be allocated to each
party whose contribution to the adjusted basis of the property exceeds
its share of the proceeds from such sale, abandonment or other
disposition in the proportion that such excess bears to the sum of the
excesses of all parties having such an excess.
5.03(f). RECAPTURE. Any recapture treated as an increase in ordinary
income by reason of 1245, 1250, or 1254 of the Code shall be
allocated to the parties in the amounts in which such recaptured items
were previously allocated to them; provided that to the extent recapture
allocated to any party is in excess of such party's gain from the
disposition of the property, such excess shall be allocated to the other
parties but only to the extent of such other parties' gain from the
disposition of the property.
5.03(g). TAX CREDITS. If a Partnership expenditure (whether or not
deductible) that gives rise to a tax credit in a Partnership taxable
year also gives rise to valid allocations of Partnership loss or
deduction (or other downward Capital Account adjustments) for such year,
then the Partners' interests in the Partnership with respect to such
credit (or the cost giving rise thereto) shall be in the same proportion
as such Partners' respective distributive shares of such loss or
deduction (and adjustments). Identical principles shall apply in
determining the Partners' interests in the Partnership with respect to
tax credits that arise from receipts of the Partnership (whether or not
taxable).
5.03(h). DEFICIT CAPITAL ACCOUNTS AND QUALIFIED INCOME OFFSET.
Notwithstanding any provisions of this Agreement to the contrary, an
allocation of loss or deduction which would result in a Partner having a
deficit Capital Account balance as of the end of the taxable year to
which such allocation relates, if charged to such Partner, (to the
extent such Partner is not required to restore such deficit to the
Partnership), taking into account: (i) adjustments that, as of the end
of such year, reasonably are expected to be made to such Partner's
Capital Account for depletion allowances with respect to the
Partnership's oil and gas properties; (ii) allocations of loss and
deduction that, as of the end of such year, reasonably are expected to
be made to such Partner pursuant to 704(e)(2) and 706(d) of the Code and
Treas. Reg. 1.751-1(b)(2)(ii); and (iii) distributions that, as of the
end of such year, reasonably are expected to be made to such Partner to
the extent they exceed offsetting increases to such Partner's Capital
Account (assuming for this purpose that the fair market value of
Partnership property equals its adjusted tax basis) that reasonably are
expected to occur during (or prior to) the Partnership taxable years in
which such distributions reasonably are expected to be made, shall be
charged to the Managing General Partner; provided further, the Managing
General Partner shall be credited with an additional amount of
Partnership income or gain equal to the amount of such loss or deduction
as quickly as possible (to the extent such chargeback does not cause or
increase deficit balances in the Partners' Capital Accounts which are
not required to be restored to the Partnership). Notwithstanding any
provisions of this Agreement to the contrary, if such Partner
unexpectedly receives an adjustment, allocation, or distribution
described in (i), (ii), or (iii) above, or any other distribution, which
causes or increases a deficit balance in such Partner's Capital Account
which is not required to be restored to the Partnership, such Partner
shall be allocated items of income and
gain (consisting of a pro rata portion of each item of Partnership
income, including gross income, and gain for such year) in an amount and
manner sufficient to eliminate such deficit balance as quickly as
possible.
5.03(i). PARTNERS' ALLOCABLE SHARES. Except as otherwise provided in
this Agreement, each Partner's allocable share of Partnership income,
gain, loss, deductions and credits shall be determined by the use of any
method prescribed or permitted by the Secretary of the Treasury by
regulations or other guidelines and selected by the Managing General
Partner which takes into account the varying interests of the Partners
in the Partnership during the taxable year. In the absence of such
regulations or guidelines, except as otherwise provided in this
Agreement, such allocable share shall be based on actual income, gain,
loss, deductions and credits economically accrued each day during the
taxable year in proportion to each Partner's varying interest in the
Partnership on each day during the taxable year.
5.04. ELECTIONS.
5.04(a). INTANGIBLES ELECTION. The Partnership's federal income tax
return shall be made in accordance with an election under the option
granted by the Code to deduct intangible drilling and development costs.
5.04(b). NO ELECTION OUT OF SUBCHAPTER K. No election shall be made by
the Partnership, any Partner, or the Operator for the Partnership to be
excluded from the application of the provisions of Subchapter K of the
Code.
5.04(c). CONTINGENT INCOME. If it is determined that any taxable income
results to any party by reason of its entitlement to a share of profits
or revenues of the Partnership before such profit or revenue has been
realized by the Partnership, the resulting deduction as well as any
resulting gain, shall not enter into Partnership net income or loss but
shall be separately allocated to such party.
5.04(d). 754 ELECTION. In the event of the transfer of an interest in
the Partnership, or upon the death of an individual party hereto, or in
the event of the distribution of property to any party hereto, the
Managing General Partner may choose for the Partnership to file an
election in accordance with the applicable Treasury Regulations to cause
the basis of the Partnership's assets to be adjusted for federal income
tax purposes as provided by 734 and 743 of the Code.
5.05. DISTRIBUTIONS.
5.05(a). IN GENERAL. The Managing General Partner shall review the
accounts of the Partnership at least quarterly to determine whether cash
distributions are appropriate and the amount to be distributed, if any.
The Partnership shall distribute funds to the Managing General Partner
and the Participants allocated to their accounts which the Managing
General Partner deems unnecessary to retain by the Partnership. In no
event, however, shall funds be advanced or borrowed for purposes of
distributions, if the amount of such distributions would exceed the
Partnership's accrued and received revenues for the previous four
quarters, less paid and accrued Operating Costs with respect to such
revenues. The determination of such revenues and costs shall be made in
accordance with generally accepted accounting principles, consistently
applied. Cash distributions from the Partnership to the Managing General
Partner shall only be made in conjunction with distributions to
Participants and only out of funds properly allocated to the Managing
General Partner's account.
At any time after three years from the date each Partnership Well is
placed into production, the Managing General Partner shall have the
right to deduct each month from the Partnership's proceeds of the sale
of the production from the well up to $200 for the purpose of
establishing a fund to cover the estimated costs of plugging and
abandoning said well. All such funds shall be deposited in a separate
interest bearing account for the benefit of the Partnership, and the
total amount so retained and deposited shall not exceed the Managing
General Partner's reasonable estimate of such costs.
5.05(b). DISTRIBUTION OF UNCOMMITTED SUBSCRIPTION PROCEEDS. Any net
subscription proceeds not expended or committed for expenditure, as
evidenced by a written agreement, by the Partnership within twelve
months of the Offering Termination Date of the Partnership, except
necessary operating capital, shall be distributed pro rata to the
Participants in the ratio of their Agreed Subscriptions to the
Partnership, as a return of capital and the Managing General Partner
shall reimburse the Participants for the selling or other offering
expenses allocable to the return of capital. For purposes of this
subsection, "committed for expenditure" shall mean contracted for,
actually earmarked for or allocated by the Managing General Partner to
the Partnership's drilling operations, and "necessary operating capital"
shall mean those funds which, in the opinion of the Managing General
Partner, should remain on hand to assure continuing operation of the
Partnership.
5.05(c). DISTRIBUTIONS ON WINDING UP. Upon the winding up of the
Partnership distributions shall be made as provided in 7.02.
5.05(d). INTEREST AND RETURN OF CAPITAL. It is agreed among the parties
hereto that no party shall under any circumstances be entitled to any
interest on amounts retained by the Partnership, and that each
Participant shall look only to his share of distributions, if any, from
the Partnership for a return of his Capital Contribution.
ARTICLE VI
TRANSFER OF INTERESTS
6.01. TRANSFERABILITY.
6.01(a). IN GENERAL. In addition to other restrictions on
transferability provided in this Agreement, interests in the Partnership
(and any rights to income or other attributes of Units in the
Partnership) shall be nontransferable except transfers to or with the
consent of the Managing General Partner where the transfer of a
Participant's interest is involved, and, except as otherwise provided in
this Agreement, the consent of Participants whose Agreed Subscriptions
equal a majority of the Partnership Subscription where a transfer by the
Managing General Partner is involved. Unless an assignee becomes a
substituted Partner in accordance with the provisions set forth below,
he shall not be entitled to any of the rights granted to a Partner
hereunder, other than the right to receive all or part of the share of
the profits, losses, income, gain, credits and cash distributions or
returns of capital to which his assignor would otherwise be entitled.
6.01(b). OBJECTIONS TO TRANSFER. Failure to notify the transferring
party of an objection to any proposed or completed transfer of the
transferor's interest hereunder within thirty days following the receipt
of notice thereof shall conclusively serve as a consent to such
transfer.
6.01(c). CONVERSION OF INVESTOR GENERAL PARTNER UNITS TO LIMITED
PARTNER INTERESTS. After substantially all of the Partnership Wells have
been drilled and completed the Managing General Partner shall file an
amended certificate of limited partnership with the Secretary of State
of the Commonwealth of Pennsylvania for the purpose of converting the
Investor General Partner Units to Limited Partner interests. Upon
such conversion the Investor General Partners shall be Limited Partners
entitled to limited liability; however, they shall remain liable to the
Partnership for any additional Capital Contribution required for their
proportionate share of any Partnership obligation or liability arising
prior to the conversion of their Units as provided in3.05(b). Such
conversion shall not affect the allocation to any Partner of any item of
Partnership income, gain, loss, deduction or credit or other item of
special tax significance (other than Partnership liabilities, if any)
and shall not affect any Partner's interest in the Partnership's oil and
gas properties and unrealized receivables.
Notwithstanding the foregoing, the Managing General Partner shall notify
all Participants at least thirty days prior to the effective date of any
adverse material change in the Partnership's insurance coverage. If the
insurance coverage is to be materially reduced, the Investor General
Partners shall have the right to convert their Units into Limited
Partner interests prior to such reduction by giving written notice to
the Managing General Partner.
6.02. SPECIAL RESTRICTIONS ON TRANSFERS.
6.02(a). IN GENERAL. Only whole Units may be assigned unless the
Participant owns less than a whole Unit, in which case his entire
fractional interest must be assigned. The costs and expenses associated
with the assignment must be paid by the assignor Partner and the
assignment must be in a form satisfactory to the Managing General
Partner. The terms of the assignment must not contravene those of this
Agreement. Transfers of interest in the Partnership are subject to the
following additional restrictions.
6.02(a)(1). SECURITIES LAWS RESTRICTION. Subject to transfers permitted
by 6.04 and transfers by operation of law, no interest in
the Partnership shall be sold, assigned, pledged, hypothecated or
transferred in the absence of an effective registration of the Units
under the Securities Act of 1933, as amended and qualification under
applicable state securities laws or an opinion of counsel acceptable to
the Managing General Partner that such registration and qualification
are not required. Transfers are also subject to any conditions
contained in the Subscription Agreement and Exhibit (B) to the
Prospectus.
6.02(a)(2). TAX LAW RESTRICTIONS. No sale, exchange, transfer or
assignment shall be made which, in the opinion of counsel to the
Partnership, would result in the Partnership being considered to have
been terminated for purposes of Section 708 of the Code or would result
in materially adverse tax consequences to the Partnership or the
Partners.
6.02(a)(3). SUBSTITUTE PARTNER. An assignee of a Limited Partner's or
Investor General Partner's interest in the Partnership shall become a
substituted Limited Partner or Investor General Partner entitled to all
the rights of a Limited Partner or Investor General Partner, as the case
may be, if, and only if: (i) the assignor gives the assignee such right;
(ii) the Managing General Partner consents to such substitution, which
consent shall be in the Managing General Partner's absolute discretion;
(iii) the assignee pays to the Partnership all costs and expenses
incurred in connection with such substitution; and (iv) the assignee
executes and delivers such instruments, in form and substance
satisfactory to the Managing General Partner, necessary or desirable to
effect such substitution and to confirm the agreement of the assignee to
be bound by all of the terms and provisions of this Agreement. A
substitute Limited Partner or Investor General Partner is entitled to
all of the rights attributable to full ownership of the assigned Units
including the right to vote.
6.02(b). EFFECT OF TRANSFER. The Partnership shall amend its records at
least once each calendar quarter to effect the substitution of
substituted Participants. Any transfer permitted hereunder where the
assignee does not become a substituted Limited Partner or Investor
General Partner shall be effective as of midnight of the last day of the
calendar month in which it is made, or, at the Managing General
Partner's election, 7:00 A.M. of the following day. No such transfer,
including a transfer of less than all of a party's rights hereunder or
the transfer of rights hereunder to more than one party, shall relieve
the transferor of its responsibility for its proportionate part of any
expenses, obligations and liabilities hereunder related to the interest
so transferred, whether arising prior or subsequent to such transfer,
nor shall any such transfer require an accounting by the Managing
General Partner, or the granting of rights hereunder as between such
parties and the remaining parties hereto, including the exercise of any
elections hereunder, to more than one party unanimously designated by
the transferees and, if he should have retained an interest hereunder,
the transferor.
Until a proper designation acceptable to it is received by the Managing
General Partner, it shall continue to account only to the person to whom
it was furnishing notices prior to such time pursuant to 8.01 and its
subsections; and such party shall continue to exercise all rights
applicable to the entire interest previously owned by the transferor.
6.03. RIGHT OF MANAGING GENERAL PARTNER TO HYPOTHECATE AND/OR WITHDRAW
ITS INTERESTS. The Managing General Partner shall have the authority
(without the consent of the Participants and without affecting the
allocation of costs and revenues received or incurred hereunder), to
hypothecate, pledge, or otherwise encumber, on any terms it sees fit,
its Partnership interest (or an undivided interest in the assets of the
Partnership equal to or less than its respective interest in the
revenues of the Partnership) to obtain funds for use by it for its own
general purposes. All repayments of such borrowings and costs and
interest or other charges related thereto shall be borne and paid
separately by the Managing General Partner; and in no event shall such
repayments, costs, interest, or other charges be charged to the account
of the Participants. In addition, subject to a required participation of
not less than 1% of the Partnership Subscription, the Managing General
Partner may withdraw a property interest held by the Partnership in the
form of a Working Interest in the Partnership Wells equal to or less
than its respective interest in the revenues of the Partnership if such
withdrawal is necessary to satisfy the bona fide request of its
creditors or approved by Participants whose Agreed Subscriptions equal a
majority of the Partnership Subscription.
6.04. REPURCHASE OBLIGATION.
6.04(a). IN GENERAL. Participants shall have the right to present their
interests to the Managing General Partner subject to the conditions and
limitations set forth in this section. The Managing General Partner
shall not purchase more than 5% of the Units in any calendar year and
shall not purchase less than one Unit of a Participant's interests in
the Partnership unless such lesser amount represents the entire amount
of the Participant's interest. The Managing General Partner may waive
these limitations in its sole discretion other than the limitation that
it shall not purchase more than 5% of the Units in any calendar year.
The Participant is not obligated to accept such repurchase offer.
The Managing General Partner shall offer to repurchase a Participant's
interest in cash in every year beginning in 2001. The commencement of
the offer must be made within 120 days of the reserve report set forth
in 4.03(b)(3). A Participant may accept the repurchase offer by a
written acceptance. No repurchase shall be considered effective until
after the payment has been made to the Participant in cash. In
addition, in accordance with Treas. Reg. 1.7704-1(f), no repurchase
shall occur until at least 60 calendar days after the Participant
notifies the Partnership in writing of the Participant's intention to
exercise the repurchase right.
6.04(b). INDEPENDENT PETROLEUM CONSULTANT. The amount attributable to
Partnership reserves shall be determined based upon the last reserve
report of the Partnership prepared by the Managing General Partner and
reviewed by the Independent Expert. The Managing General Partner shall
estimate the present worth of future net revenues attributable to the
Partnership's interest in the Proved Reserves, and in making this
estimate, it shall employ a discount rate equal to 10%, use a constant
price for the oil and base the price of gas upon the existing gas
contracts at the time of the repurchase. The calculation of the
repurchase price shall be as set forth in 6.04(c).
6.04(c). CALCULATION OF REPURCHASE PRICE. The purchase price shall be
based upon the Participant's share of the net assets and liabilities of
the Partnership and allocated pro rata to each Participant based upon
his Agreed Subscription. The repurchase price shall include the sum of
the following items:
(i) an amount based on 70% of the present worth of future net
revenues from the Partnership's Proved Reserves determined as described
in 6.04(b);
(ii) Partnership cash on hand;
(iii) prepaid expenses and accounts receivable of the Partnership,
less a reasonable amount for doubtful accounts; and
(iv) the estimated market value of all assets of the Partnership,
not separately specified above, determined in accordance with standard
industry valuation procedures.
There shall be deducted from the foregoing sum the following items:
(i) an amount equal to all Partnership debts, obligations, and other
liabilities, including accrued expenses; and
(ii) any distributions made to the Participants between the date of
the request and the actual payment; provided, however, that if any cash
distributed was derived from the sale, subsequent to the request, of
oil, gas or other mineral production, or of a producing property owned
by the Partnership, for purposes of determining the reduction of the
purchase price, such distributions shall be discounted at the same rate
used to take into account the risk factors employed to determine the
present worth of the Partnership's Proved Reserves.
The purchase price may be further adjusted by the Managing General
Partner for estimated changes therein from the date of such report to
the date of payment of the purchase price to the Participants: (i) by
reason of production or sales of, or additions to, reserves and lease
and well equipment, sale or abandonment of Leases, and similar matters
occurring prior to the request for repurchase, and (ii) by reason of any
of the following occurring prior to payment of the purchase price to the
selling Participants: changes in well performance, increases or
decreases in the market price of oil, gas, or other minerals, revision
of regulations relating to the importing of hydrocarbons, changes in
income, ad valorem, and other tax laws (e.g. material variations in the
provisions for depletion) and similar matters.
6.04(d). SELECTION BY LOT. If less than all interests presented at any
time are to be purchased, the Participants whose interests are to be
purchased will be selected by lot. The Managing General Partner's
obligation to purchase such interests may be discharged for the benefit
of the Managing General Partner by a third party or an Affiliate. The
interests of the selling Participant will be transferred to the party
who pays for it. A selling Participant will be required to deliver an
executed assignment of his interest, together with such other
documentation as the Managing General Partner may reasonably request.
6.04(e). NO OBLIGATION OF THE MANAGING GENERAL PARTNER TO ESTABLISH A
RESERVE. The Managing General Partner shall have no obligation to
establish any reserve to satisfy the repurchase obligations under this
section.
6.04(f). SUSPENSION OF REPURCHASE OBLIGATION. The Managing General
Partner may suspend its repurchase obligation at any time if it does not
have sufficient cash flow or is unable to borrow funds for such purpose
on terms it deems reasonable, by so notifying the Participants. In
addition, the Managing General Partner's repurchase obligation may be
conditioned, in the Managing General Partner's sole discretion, on the
Managing General Partner's receipt of an opinion of counsel that such
transfers will not cause the Partnership to be treated as a "publicly
traded partnership" under the Code. The Managing General Partner shall
hold such repurchased Units for its own account and not for resale.
ARTICLE VII
DURATION, DISSOLUTION, AND WINDING UP
7.01. DURATION.
7.01(a). FIFTY YEAR TERM. The Partnership shall continue in existence
for a term of fifty years from the effective date of this Agreement
unless sooner terminated as hereinafter set forth.
7.01(b). TERMINATION. The Partnership shall terminate following the
occurrence of a Final Terminating Event, or upon the occurrence of any
event which under the Pennsylvania Revised Uniform Limited Partnership
Act causes the dissolution of a limited partnership.
7.01(c). CONTINUANCE OF PARTNERSHIP. Except upon the occurrence of a
Final Terminating Event, the Partnership or any successor limited
partnership shall not be wound up, but shall be continued by the parties
and their respective successors as a successor limited partnership under
all the terms of this Agreement. Such successor limited partnership
shall succeed to all of the assets of the Partnership. As used
throughout this Agreement, the term "Partnership" shall include such
successor limited partnerships and the parties thereto.
7.02. DISSOLUTION AND WINDING UP. Upon the occurrence of a Final
Terminating Event, the affairs of the Partnership shall be wound up and
there shall be distributed to each of the parties its Distribution
Interest in the remaining assets of the Partnership. To the extent
practicable and in accordance with sound business practices in the
judgment of the Managing General Partner, liquidating distributions
shall be made by the end of the taxable year in which liquidation occurs
(determined without regard to 706(c)(2)(A) of the Code) or, if later,
within ninety days after the date of such liquidation. Provided,
however, amounts withheld for reserves reasonably required for
liabilities of the Partnership and installment obligations owed to the
Partnership need not be distributed within the foregoing time period so
long as such withheld amounts are distributed as soon as practicable.
Any in kind property distributions to the Participants shall be made to
a liquidating trust or similar entity for the benefit of the
Participants, unless at the time of the distribution:
(1) the Managing General Partner shall offer the individual
Participants the election of receiving in kind property distributions
and the Participants accept such offer after being advised of the risks
associated with such direct ownership; or
(2) there are alternative arrangements in place which assure the
Participants that they will not, at any time, be responsible for the
operation or disposition of Partnership properties.
It shall be presumed that a Participant has refused such consent if the
Managing General Partner has not received such consent within thirty
days after the Managing General Partner mailed the request for such
consent. Any Partnership asset which would otherwise be distributed in
kind to a Participant, but for the failure or refusal of such
Participant to give his written consent to such distribution, may
instead be sold by the Managing General Partner at the best price
reasonably obtainable from an independent third party who is not an
Affiliate of the Managing General Partner.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01. NOTICES.
8.01(a). METHOD. Any notice required hereunder shall be in writing, and
given by mail or wire addressed to the party to receive such notice at
the address designated in 1.03.
8.01(b). CHANGE IN ADDRESS. The address of any party hereto may be
changed by written notice to the other parties hereto in the event of a
change of address by the Managing General Partner or to the Managing
General Partner in the event of a change of address by a Participant;
provided, however, that in the event of a transfer of rights hereunder,
no notice to any such transferee shall be required, nor shall such
transferee have any rights hereunder, until notice thereof shall have
been given to the Managing General Partner. Any transfer of rights
hereunder shall not increase the duty to give notice, and in the event
of a transfer of rights hereunder to more than one party, notice to any
owner of any interest in such rights shall be notice to all owners
thereof.
8.01(c). TIME NOTICE DEEMED GIVEN. Any notice shall be considered
given, and any applicable time shall run, from the date such notice is
placed in the mails or delivered to the telegraph company as to any
notice given by the Managing General Partner and when received as to any
notice given by any Participant.
8.01(d). EFFECTIVENESS OF NOTICE. Any notice to a party other than the
Managing General Partner, including a notice requiring concurrence or
nonconcurrence, shall be effective, and any failure to respond binding,
irrespective of whether or not such notice is actually received, and
irrespective of any disability or death on the part of the noticee,
whether or not known to the party giving such notice.
8.01(e). FAILURE TO RESPOND. Except where this Agreement expressly
requires affirmative approval of a Participant, any Participant who
fails to respond in writing within the time specified for such response
(which time shall be not less than fifteen business days from the date
of mailing of such request) to a request by the Managing General Partner
for approval of or concurrence in a proposed action shall be
conclusively deemed to have approved such action.
8.02. TIME. Time is of the essence of each part of this Agreement.
8.03. APPLICABLE LAW. The terms and provisions hereof shall be
construed under the laws of the Commonwealth of Pennsylvania, provided,
however, this 8.03 shall not be deemed to limit causes of action for
violations of federal or state securities law to the laws of the
Commonwealth of Pennsylvania. Neither this Agreement nor the
Subscription Agreement shall require mandatory venue or mandatory
arbitration of any or all claims by Participants against the Sponsor.
8.04. AGREEMENT IN COUNTERPARTS. This Agreement may be executed in
counterpart and shall be binding upon all parties executing this or
similar agreements from and after the date of execution by each party.
8.05. AMENDMENT. No changes herein shall be binding unless proposed in
writing by the Managing General Partner, and adopted with the consent of
Participants whose Agreed Subscriptions equal a majority of the
Partnership Subscription; or unless proposed in writing by Participants
whose Agreed Subscriptions equal 10% or more of the Partnership
Subscription and approved by an affirmative vote of Participants whose
Agreed Subscriptions equal a majority of the Partnership Subscription;
provided, however, that the Managing General Partner is authorized to
amend this Agreement and its exhibits without such consent in any way
deemed necessary or desirable by it: (i) to add or substitute (in the
case of an assigning party) additional Limited Partners or Investor
General Partners; (ii) to enhance the tax benefits of the Partnership to
the parties; and (iii) to satisfy any requirements, conditions,
guidelines, options, or elections contained in any opinion, directive,
order, ruling, or regulation of the Securities and Exchange Commission,
the Internal Revenue Service, or any other federal or state agency, or
in any federal or state statute, compliance with which it deems to be in
the best interest of the Partnership. Notwithstanding the foregoing, no
amendment materially and adversely affecting the interests or rights of
Participants shall be made without the consent of the Participants whose
interests will be so affected.
8.06. ADDITIONAL PARTNERS. Each Participant hereby consents to the
admission to the Partnership of such additional Limited Partners or
Investor General Partners as the Managing General Partner, in its
discretion, chooses to admit.
8.07. LEGAL EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties, their heirs, devisees, personal
representatives, successors and assigns, and shall run with the
interests subject hereto. The terms "Partnership," "Limited Partner,"
"Investor General Partner," "Participant," "Partner," "Managing General
Partner," "Operator," or "parties" shall equally apply to any successor
limited partnership, and any heir, devisee, personal representative,
successor or assign of a party.
IN WITNESS WHEREOF, the parties hereto set their hands and seal as of
the day and year hereinabove shown.
ATLAS: ATLAS RESOURCES, INC.
Managing General Partner
By:
Attest:
(SEAL) Secretary
=====================================================================
EXHIBIT (I-A)
MANAGING GENERAL PARTNER SIGNATURE PAGE
EXHIBIT (I-A)
MANAGING GENERAL PARTNER SIGNATURE PAGE
Attached to and made a part of the AMENDED AND RESTATED CERTIFICATE AND
AGREEMENT OF LIMITED PARTNERSHIP of ATLAS-ENERGY FOR THE NINETIESPUBLIC
#6 LTD.
The undersigned agrees:
1. to serve as the Managing General Partner of ATLAS-ENERGY FOR THE
NINETIES-PUBLIC #6 LTD. (the "Partnership"), and hereby executes, swears
to and agrees to all the terms of the Partnership Agreement;
2. to pay the required subscription of the Managing General Partner
under 3.03(b)(1) of the Partnership Agreement; and
3. to subscribe to the Partnership as follows:
(a) $___________________ [________] Unit(s)] under 3.03(b)(2) of
the Partnership Agreement as a Limited Partner; or
(b) $___________________ [________] Unit(s)] under 3.03(b)(2) of
the Partnership Agreement as an Investor General Partner.
MANAGING GENERAL PARTNER:
Atlas Resources, Inc. Address:
By: ______________________________________ 311 Rouser Road
J.R. O'Mara, President and CEO Moon Township, Pennsylvania 15108
ACCEPTED this ________ day of __________________ , 1997.
ATLAS RESOURCES, INC.
MANAGING GENERAL PARTNER
By: ______________________________________
J.R. O'Mara, President and CEO
Attest
______________________________________________
(SEAL) Secretary
=====================================================================
EXHIBIT (I-B)
SUBSCRIPTION AGREEMENT
ATLAS-ENERGY FOR THE NLNETLES-PUBLLC #6 LTD.
SUBSCRIPTION AGREEMENT
The undersigned hereby offers to purchase Units of Atlas-Energy for the
Nineties-Public #6 Ltd. in the amount set forth on the Signature Page of
this Subscription Agreement and on the terms described in the current
Prospectus for Atlas-Energy for the Nineties-Public #6 Ltd. (as
supplemented or amended from time to time). The undersigned acknowledges
and agrees that his execution of this Subscription Agreement also
constitutes his execution of the Amended and Restated Certificate and
Agreement of Limited Partnership (the "Partnership Agreement") the form
of which is attached as Exhibit (A) to the Prospectus and the
undersigned agrees to be bound by all of the terms and conditions of the
Partnership Agreement if his Agreed Subscription is accepted by the
Managing General Partner. The undersigned understands and agrees that
this offer may not be assigned or withdrawn by the undersigned. The
undersigned hereby irrevocably constitutes and appoints Atlas Resources,
Inc. (and its duly authorized agents) the undersigned's agent and
attorney-in-fact, in the undersigned's name, place and stead, to make,
execute, acknowledge, swear to, file, record and deliver the Amended and
Restated Certificate and Agreement of Limited Partnership and any
certificates related thereto.
In order to induce Atlas to accept this subscription, the undersigned
hereby represents, warrants, covenants and agrees as follows:
INVESTOR'S INITIALS
_____ The undersigned has received the Prospectus.
_____ The undersigned (other than Minnesota residents)
recognizes that prior to this offering there has been no public market
for the Units and that it is not likely that after the offering there
will be any such market. In addition, the undersigned understands that
the transferability of the Units is restricted and that he cannot expect
to be able to readily liquidate his investment in the Units in case of
emergency or other change in circumstances.
_____ The undersigned is purchasing the Units for his own
account, for investment purposes and not for the account of others and
he is not purchasing the Units with the present intention of reselling
them.
_____ The undersigned, if he is an individual, is a citizen of
the United States of America and is at least twenty-one years of age,
or, if a partnership, corporation or trust, the members, stockholders or
beneficiaries thereof are citizens of the United States and each is at
least twenty-one years of age.
_____ The undersigned, if he is not an individual, is empowered
and duly authorized under a governing document, trust instrument,
pension plan, charter, certificate of incorporation, by-law provision or
the like to enter into this Subscription Agreement and to perform the
transactions contemplated by the Prospectus, including the exhibits
thereto.
_____ (a) The undersigned has: (i) a net worth of at least
$225,000 (exclusive of home, furnishings and automobiles); or (ii) a
net worth (exclusive of home, furnishings and automobiles) of at least
$60,000 and had during the last tax year, or estimates that he will have
during the current tax year, "taxable income" as defined in Section 63
of the Code of at least $60,000, without regard to an
investment in the Partnership.
(B) IN ADDITION, IF A RESIDENT OF ALABAMA, ARIZONA,
CALIFORNIA, INDIANA, IOWA, KENTUCKY, MAINE, MASSACHUSETTS, MICHIGAN,
MINNESOTA, MISSISSIPPI, MISSOURI, NEW HAMPSHIRE, NEW MEXICO, NORTH
CAROLINA, OHIO, OKLAHOMA, PENNSYLVANIA, SOUTH DAKOTA, TENNESSEE, TEXAS,
VERMONT OR WASHINGTON, THE UNDERSIGNED REPRESENTS THAT HE IS AWARE OF
AND MEETS THAT STATE'S QUALIFICATIONS AND SUITABILITY STANDARDS SET
FORTH IN EXHIBIT (B) TO THE PROSPECTUS.
(c) If a fiduciary, I am purchashing for a person or
entity having the appropriate income and/or net worth specified in (a)
or (b) above.
(d) If a resident of Michigan or Ohio, the undersigned's
investment does not exceed 10% of his net worth (exclusive of home,
furnishings and automobiles).
THE ABOVE REPRESENTATIONS DO NOT CONSTITUTE A WAIVER OF ANY RIGHTS THAT
I MAY HAVE UNDER THE ACTS ADMINISTERED BY THE SECURITIES AND EXCHANGE
COMMISSION OR BY ANY STATE REGULATORY AGENCY ADMINISTERING STATUTES
BEARING ON THE SALE OF SECURITIES.
An Investor General Partner will have unlimited joint and several
liability for Partnership obligations and liabilities including amounts
in excess of his Agreed Subscription to the extent such obligations and
liabilities exceed the Partnership's insurance proceeds, the
Partnership's assets and indemnification by the Managing General Partner
and Atlas Group. Insurance may be inadequate to cover such liabilities
and there is no insurance coverage for certain claims.
Partnership losses allocable to a Limited Partner generally may be used
only to the extent of his net passive income from passive activities in
such year, with any excess losses being deferred.
No state or federal governmental authority has made any finding or
determination relating to the fairness for public investment of the
Units and no state or federal governmental authority has recommended or
endorsed or will recommend or endorse the Units.
The Soliciting Dealer or registered representative is required to inform
potential investors of all pertinent facts relating to the Units,
including the following:
(a) the risks involved in the offering, including the speculative
nature of the investment and the speculative nature of drilling for oil
and gas;
(b) the financial hazards involved in the offering, including the
risk of losing the entire investment;
(c) the lack of liquidity of this investment;
(d) the restrictions on transferability of the Units;
(e) the background of the Managing General Partner and the
Operator;
(f) the tax consequences of the investment; and
(g) the unlimited joint and several liability of the Investor
General Partners.
Investors are required to execute their own Subscription Agreements. The
Managing General Partner will not accept any Subscription Agreement that
has been executed by someone other than the investor unless such person
has been given the legal power of attorney to sign on the investor's
behalf and the investor meets all of the conditions herein. In the case
of sales to fiduciary accounts, the minimum standards set forth herein
shall be met by the beneficiary, the fiduciary account, or by the donor
or grantor who directly or indirectly supplies the funds to purchase the
Partnership interests if the donor or grantor is the fiduciary.
The execution of the Subscription Agreement by a subscriber constitutes
a binding offer to buy Units in the Partnership and an agreement to
hold the offer open until the Agreed Subscription is accepted or
rejected by the Managing General Partner. Once an investor subscribes
he will not have any revocation rights. The Managing General Partner
has the discretion to refuse to accept any Agreed Subscription without
liability to the subscriber. Agreed Subscriptions will be accepted or
rejected by the Partnership within thirty days of their receipt; if
rejected, all funds will be returned to the subscriber immediately. Upon
the original sale of Units, the Participants will be admitted as
Partners not later than fifteen days after the release from escrow of
Participants' funds to the Partnership, and thereafter Participants will
be admitted into the Partnership not later than the last day of the
calendar month in which their Agreed Subscriptions were accepted by the
Partnership.
The Managing General Partner may not complete a sale of Units to an
investor until at least five business days after the date the investor
receives a final Prospectus. In addition, the Managing General Partner
will send each investor a confirmation of purchase.
NOTICE TO CALIFORNIA RESIDENTS: This offering deviates in certain
respects from various requirements of Title 10 of the California
Administrative Code. These deviations include, but are not limited to
the following: the definition of Prospect in the Prospectus, unlike Rule
260.140.127.2(b) and Rule 260.140.121(1) does not require enlarging or
contracting of the size of the area on the basis of geological data in
all cases.
If a resident of California the undersigned acknowledges the receipt of
California Rule 260.141.11 set forth in Exhibit (B) to the Prospectus.
SIGNATURE PAGE OF SUBSCRIPTION AGREEMENT
The undersigned agrees to purchase ________ Units of Participation at
$10,000 per Unit in ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD. (the
"Partnership") as (check one):
& INVESTOR GENERAL PARTNER AGREED SUBSCRIPTION
& LIMITED PARTNER $ ___________________________
(_______________________# Units)
Make check payable to: "National City Bank, Escrow Agent, Atlas Public
#6 Ltd."
Minimum Subscription: one Unit ($10,000), however, the Managing General
Partner, in its discretion, may accept one-half Unit ($5,000)
subscriptions; and Additional Subscriptions in $1,000 increments.
Subscriber (All individual investors must personally Address
sign this Signature Page.)
_________________________________________________
____________________________________________________
Print Name
_________________________________________________
____________________________________________________
Signature
_________________________________________________
____________________________________________________
Print Name
_________________________________________________
Signature
_________________________________________________
Name of Entity if a Trust, Corporation or Partnership is
Subscribing
Address for Distributions if Different from Above
____________________________________________________
____________________________________________________
Date: __________________ Telephone No.: Business
______________________________ Home _________________________
Tax I.D. No. (Social Security No.):
_______________________________________________________________________
______
(CHECK ONE): Calendar Year Taxpayer __________ Fiscal Year
Taxpayer __________
(CHECK ONE): OWNERSHIP - Tenants-in-Common ________
Partnership ________
Joint Tenancy ________ C Corporation ________
Individual ________ S Corporation ________
Trust ________ Community Property ________
Other ________
TO BE COMPLETED BY REGISTERED REPRESENTATIVE (FOR COMMISSION AND
OTHER PURPOSES)
I hereby represent that I have discharged my affirmative obligations
under Rule 2810(b)(2)(B) and (b)(3)(D) of the NASD's Conduct Rules and
specifically have obtained information from the above-named subscriber
concerning his/her age, net worth, annual income, federal income tax
bracket, investment objectives, investment portfolio and other financial
information and have determined that an investment in the Partnership is
suitable for such subscriber, that such subscriber is or will be in a
financial position to realize the benefits of this investment, and that
such subscriber has a fair market net worth sufficient to sustain the
risks for this investment. I have also informed the subscriber of all
pertinent facts relating to the liquidity and marketability of an
investment in the Partnership, of the risks of unlimited liability
regarding an investment as an Investor General Partner, and of the
passive loss limitations for tax purposes of an investment as a Limited
Partner.
_________________________________________________
____________________________________________________
Registered Representative Name and Number Name of Broker-Dealer
Registered Representative Office Address:
Company Name (if other than Broker-Dealer Name)
Phone Number;
Facsimile Number
NOTICE TO BROKER-
DEALER:
Send complete and
signed DOCUMENTS and
THE CHECK to:
Mr. Eric D. Koval
Anthem Securities, Inc.
P.O. Box 911
Coraopolis, Pennsylvania 15108-0911 (412)
262-1680
TO BE COMPLETED BY ATLAS RESOURCES, INC.
ACCEPTED THIS ______ day
of _________________ , 1997
Attest
(SEAL) Secretary
ATLAS RESOURCES, INC.,
MANAGING GENERAL PARTNER
By:
J.R. O'Mara, President
=====================================================================
EXHIBIT (II)
DRILLING AND OPERATING AGREEMENT
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
INDEX
SECTION PAGE
1. Assignment of Well Locations; Representations; Designation of
Additional Well Locations;
Outside Activities 1
2. Drilling of Wells; Interest of Developer; Right of Substitution
2
3. Operator - Responsibilities in General; Term 3
4. Operator's Charges for Drilling and Completing Wells; Completion
Determination 3
5. Title Examination of Well Locations; Liability for Title Defects
4
6. Operations Subsequent to Completion of the Wells; Price
Determinations; Plugging and Abandonment 5
7. Billing and Payment Procedure with Respect to Operation of
Wells; Records, Reports and Information 6
8. Operator's Lien 6
9. Successors and Assigns; Transfers; Appointment of Agent 7
10. Insurance; Operator's Liability 7
11. Internal Revenue Code Election, Relationship of Parties; Right
to Take Production in Kind 8
12. Force Majeure 8
13. Term 9
14. Governing Law and Invalidity 9
15. Integration 9
16. Waiver of Default or Breach 9
17. Notices 9
18. Interpretation 10
19. Counterparts 10
Signature Page 10
Exhibit A Description of Leases and Initial Well Locations
Exhibits A-l through A-___ Maps of Initial Well Locations
Exhibit B Form of Assignment
Exhibit C Form of Addendum
DRILLING AND OPERATING AGREEMENT
THIS AGREEMENT made this ______ day of _______________, 1997, by and
between ATLAS RESOURCES, INC., a Pennsylvania corporation (hereinafter
referred to as "Atlas" or "Operator"),
and
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD., a Pennsylvania limited
partnership, (hereinafter referred to as the "Developer").
WITNESSETH THAT:
WHEREAS, Atlas, by virtue of the Oil and Gas Leases (the "Leases")
described on Exhibit A attached hereto and made a part hereof, has
certain rights to develop the ____________ (______) initial well
locations identified on the maps attached hereto as Exhibits A-l
through A-______ (the "Initial Well Locations");
WHEREAS, the Developer, subject to the terms and conditions hereof,
desires to acquire certain of Atlas' rights to develop the aforesaid
____________ (______) Initial Well Locations and to provide for the
development upon the terms and conditions herein set forth of
additional well locations ("Additional Well Locations") which the
parties may from time to time designate; and
WHEREAS, Operator is in the oil and gas exploration and development
business, and the Developer desires that Operator, as its independent
contractor, perform certain services in connection with its efforts to
develop the aforesaid Initial and Additional Well Locations
(hereinafter collectively referred to as the "Well Locations") and to
operate the wells completed thereon, on the terms and conditions herein
set forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and subject to the terms and conditions hereinafter set forth, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. ASSIGNMENT OF WELL LOCATIONS; REPRESENTATIONS; DESIGNATION OF
ADDITIONAL WELL LOCATIONS; OUTSIDE ACTIVITIES.
(a) Atlas shall execute an assignment of an undivided percentage of
Working Interest in the Well Location acreage for each well to the
Developer as shown on Exhibit A attached hereto, which assignment shall
be limited to a depth from the surface to the top of the Queenston
formation in Mercer County, Pennsylvania and Ohio. The assignment shall
be substantially in the form of Exhibit B attached hereto and made a
part hereof. The amount of acreage included in each Initial Well
Location and the configuration thereof are indicated on the maps
attached hereto as Exhibits A-l through A-______. The amount of acreage
included in each Additional Well Location and the configuration thereof
shall be indicated on the maps to be attached as exhibits to the
applicable addendum as provided in sub-section (c) below.
(b) As of the date hereof, Atlas represents and warrants to the
Developer that Atlas is the lawful owner of said Lease and rights and
interest thereunder and of the personal property thereon or used in
connection therewith; that Atlas has good right and authority to sell
and convey the same, and that said rights, interest and property are
free and clear from all liens and encumbrances, and that all rentals and
royalties due and payable thereunder have been duly paid. The foregoing
representations and warranties shall also be made by Atlas at the time
of each recorded assignment of the acreage included in each Initial Well
Location and at the time of each recorded assignment of the acreage
included in each Additional Well Location designated pursuant to sub-
section (c) below, such representations and warranties to be included in
each recorded assignment substantially in the manner set forth in the
form of assignment attached hereto and made a part hereof as Exhibit B.
Atlas agrees to indemnify, protect and hold the Developer and its
successors and assigns harmless from and against all costs (including
but not limited to reasonable attorneys' fees), liabilities, claims,
penalties, losses, suits, actions, causes of action, judgments or
decrees resulting from the breach of any of the aforesaid
representations and warranties. It is understood and agreed that, except
as specifically set forth above, Atlas makes no warranty or
representation, express or implied, as to its title or the title of the
lessors in and to the lands or oil and gas interests covered by said
Leases.
(c) In the event that the parties hereto desire to designate
Additional Well Locations to be developed in accordance with the terms
and conditions of this Agreement, each of said parties shall execute an
addendum substantially in the form of Exhibit C attached hereto and made
a part hereof specifying the undivided percentage of Working Interest
and the Oil and Gas Leases to be included as Leases hereunder,
specifying the amount and configuration of acreage included in each such
Additional Well Location on maps attached as exhibits to such addendum
and setting forth their agreement that such Additional Well Locations
shall be developed in accordance with the terms and conditions of this
Agreement.
(d) It is understood and agreed that the assignment of rights under
the Leases and the oil and gas development activities contemplated by
this Agreement relate only to the Initial Well Locations described
herein and to the Additional Well Locations designated pursuant to sub-
section (c) above. Nothing contained in this Agreement shall be
interpreted to restrict in any manner the right of each of the parties
hereto to conduct without the participation of any other party hereto
any additional activities relating to exploration, development,
drilling, production or delivery of oil and gas on lands adjacent to or
in the immediate vicinity of the aforesaid Initial and Additional Well
Locations or elsewhere.
2. DRILLING OF WELLS; INTEREST OF DEVELOPER; RIGHT OF SUBSTITUTION.
(a) Operator, as Developer's independent contractor, agrees to
drill, complete (or plug) and operate ____________ (_____) natural gas
wells on the ____________ (______) Initial Well Locations in accordance
with the terms and conditions of this Agreement, and Developer, as a
minimum commitment, agrees to participate in and pay the Operator's
charges for drilling and completing the wells and any extra costs
pursuant to Section 4 hereof in proportion to the share of the Working
Interest owned by the Developer in the wells with respect to all
___________ (______) initial wells, it being expressly understood and
agreed that, subject to sub-section (e) below, Developer does not
reserve the right to decline participation in the drilling of any of the
____________ (______) initial wells to be drilled hereunder.
(b) Operator will use its best efforts to commence drilling the
first well within thirty (30) days after the date of this Agreement and
to commence the drilling of each of said ______________ (_____) initial
wells for which payment is made pursuant to Section 4(b) of this
Agreement, on or before March 31, 1998. Subject to the foregoing time
limits, Operator shall determine the timing of and the order of the
drilling of said ____________ (______) Initial Well Locations.
(c) The ____________ (______) initial wells to be drilled on the
Initial Well Locations designated pursuant to this Agreement and any
additional wells drilled hereunder on any Additional Well Locations
designated pursuant to Section l(c) above shall be drilled and completed
(or plugged) in accordance with the generally accepted and customary oil
and gas field practices and techniques then prevailing in the
geographical area of the Well Locations and shall be drilled to a depth
sufficient to test thoroughly the objective formation or the deepest
assigned depth, whichever is less.
(d) Except as otherwise provided herein, all costs, expenses and
liabilities incurred in connection with the drilling and other
operations and activities contemplated by this Agreement shall be borne
and paid, and all wells, gathering lines of up to approximately 1,500
feet on the Prospect, equipment, materials, and facilities acquired,
constructed or installed hereunder shall be owned, by the Developer in
proportion to the share of the Working Interest owned by the Developer
in the wells. Subject to the payment of lessor's royalties and other
royalties and overriding royalties, if any, production of oil and gas
from the wells to be drilled hereunder shall be owned by the Developer
in proportion to the share of the Working Interest owned by the
Developer in the wells.
(e) Notwithstanding the provisions of sub-section (a) above, in the
event the Operator or Developer determines in good faith, with respect
to any Well Location, before operations commence hereunder with respect
to such Well Location, based upon the production (or failure of
production) of any other wells which may have been recently drilled in
the immediate area of such Well Location, or upon newly discovered title
defects, or upon such other evidence with respect to the Well Location
as may be obtained, that it would not be in the best interest of the
parties hereto to drill a well on such Well Location, then the party
making the determination shall notify the other party hereto of such
determination and the basis therefor and, unless otherwise instructed by
Developer, such well shall not be drilled. If such well
is not drilled, Operator shall promptly propose a new well location
(including such information with respect thereto as Developer may
reasonably request) within Pennsylvania or Ohio to be substituted for
such original Well Location and Developer shall thereafter have the
option for a period of seven (7) business days to either reject or
accept the proposed new well location. If the new well location is
rejected, Operator shall promptly propose another substitute well
location pursuant to the provisions hereof. Once the Developer accepts a
substitute well location or does not reject it within said seven (7) day
period, this Agreement shall terminate as to the original Well Location
and the substitute well location shall become subject to the terms and
conditions hereof.
3. OPERATOR - RESPONSIBILITIES IN GENERAL; TERM.
(a) Atlas shall be the Operator of the wells and Well Locations
subject to this Agreement and, as the Developer's independent
contractor, shall, in addition to its other obligations hereunder, (i)
make the necessary arrangements for the drilling and completion of wells
and the installation of the necessary gas gathering line systems and
connection facilities; (ii) make the technical decisions required in
drilling, testing, completing and operating such wells; (iii) manage and
conduct all field operations in connection with the drilling, testing,
completing, equipping, operating and producing of the wells; (iv)
maintain all wells, equipment, gathering lines and facilities in good
working order during the useful life thereof; and (v) perform the
necessary administrative and accounting functions. In the performance of
work contemplated by this Agreement, Operator is an independent
contractor with authority to control and direct the performance of the
details of the work.
(b) Operator covenants and agrees that (i) it shall perform and
carry on (or cause to be performed and carried on) its duties and
obligations hereunder in a good, prudent, diligent and workmanlike
manner using technically sound, acceptable oil and gas field practices
then prevailing in the geographical area of the aforesaid Well
Locations; (ii) all drilling and other operations conducted by, for and
under the control of Operator hereunder shall conform in all respects to
federal, state and local laws, statutes, ordinances, regulations, and
requirements; (iii) unless otherwise agreed in writing by the Developer,
all work performed hereunder pursuant to a written estimate shall
conform to the technical specifications set forth in such written
estimate and all equipment and materials installed or incorporated in
the wells and facilities hereunder shall be new or used and of good
quality; (iv) in the course of conducting operations hereunder, it shall
comply with all terms and conditions of the Leases (and any related
assignments, amendments, subleases, modifications and supplements) other
than any minimum drilling commitments contained therein; (v) it shall
keep the Well Locations subject to this Agreement and all wells,
equipment and facilities located thereon, free and clear of all labor,
materials and other liens or encumbrances arising out of operations
hereunder; (vi) it shall file all reports and obtain all permits and
bonds required to be filed with or obtained from any governmental
authority or agency in connection with the drilling or other operations
and activities which are the subject of this Agreement; and (vii) it
will provide competent and experienced personnel to supervise the
drilling, completing (or plugging), and operating of the wells and use
the services of competent and experienced service companies to provide
any third party services necessary or appropriate in order to perform
its duties hereunder.
(c) Atlas shall serve as Operator hereunder until the earliest of
(i) the termination of this Agreement pursuant to Section 13 hereof;
(ii) the termination of Atlas as Operator by the Developer which may be
effected by the Developer at any time in its discretion, with or without
cause; upon sixty (60) days advance written notice to the Operator; or
(iii) the resignation of Atlas as Operator hereunder which
may occur upon ninety (90) days' written notice to the Developer at any
time after five (5) years from the date hereof, it being expressly
understood and agreed that Atlas shall have no right to resign as
Operator hereunder prior to the expiration of the aforesaid five-year
period. Any successor Operator hereunder shall be selected by the
Developer. Nothing contained in this sub-section (c) shall relieve or
release Atlas or the Developer from any liability or obligation
hereunder which accrued or occurred prior to Atlas' removal or
resignation as Operator hereunder. Upon any change in Operator pursuant
to this provision, the then present Operator shall deliver to the
successor Operator possession of all records, equipment, materials and
appurtenances used or obtained for use in connection with operations
hereunder and owned by the Developer.
4. OPERATOR'S CHARGES FOR DRILLING AND COMPLETING WELLS; COMPLETION
DETERMINATION
(a) All natural gas wells which are drilled and completed hereunder
shall be drilled and completed on a footage basis for a price of $37.39
per foot to the depth of the well at its deepest penetration as recorded
by Operator. The aforesaid footage price for each of said natural gas
wells shall be set forth in an AFE which shall be attached to this
Agreement as an Exhibit, and shall cover all ordinary costs which may be
incurred in drilling and completing each such well for production of
natural gas, including without limitation, site preparation, permits and
bonds, roadways, surface damages, power at the site, water, Operator's
overhead and profit, rights-of-way, drilling rigs, equipment and
materials, costs of title examination, logging, cementing, fracturing,
casing, meters (other than utility purchase meters), connection
facilities, salt water collection tanks, separators, siphon string,
rabbit, tubing, an average of 1,500 feet of gathering line per well,
geological and engineering services and completing two (2) zones;
provided, that such footage price shall not include the cost of (i)
completing more than two (2) zones; (ii) completion procedures,
equipment, or any facilities necessary or appropriate for the production
and sale of oil and/or natural gas liquids; and (iii) equipment or
materials necessary or appropriate to collect, lift or dispose of
liquids for efficient gas production, except that the cost of saltwater
collection tanks, separators, siphon string and tubing shall be included
in the aforesaid footage price. Any such extra costs shall be billed to
Developer in proportion to the share of the Working Interest owned by
the Developer in the wells on a direct cost basis equal to the sum of
(i) Operator's invoice costs of third party services performed and
materials and equipment purchased plus ten percent (10%) to cover
supervisory services and overhead; and (ii) Operator's standard charges
for services performed directly by it.
(b) In order to enable Operator to commence site preparation for
________________ (______) initial wells, to obtain suitable
subcontractors for the drilling and completion of such wells at
currently prevailing prices, and to insure the availability of equipment
and materials, the Developer shall pay to Operator, in proportion to the
share of the Working Interest owned by the Developer in the wells, one
hundred percent (100%) of the estimated price for all _________________
(______) initial wells upon execution of this Agreement, such payment to
be nonrefundable in all events, except that Developer shall not be
required to pay completion costs prior to the time that a decision is
made that the well warrants a completion attempt and Atlas' share of
such payments as Managing General Partner of the Developer shall be paid
within five (5) business days of notice from Operator that such costs
have been incurred. With respect to each additional well drilled on the
Additional Well Locations, if any, in order to enable Operator to
commence site preparation, to obtain suitable subcontractors for the
drilling and completion of such wells at currently prevailing prices,
and to insure the availability of equipment and materials, Developer
shall pay Operator, in proportion to
the share of the Working Interest owned by the Developer in the wells,
one hundred percent (100%) of the estimated price for such well upon
execution of the applicable addendum pursuant to Section l(c) above,
except that Developer shall not be required to pay completion costs
prior to the time that a decision is made that the well warrants a
completion attempt and Atlas' share of such payments as Managing General
Partner of the Developer shall be paid within five (5) business days of
notice from Operator that such costs have been incurred. With respect to
each well, Developer shall pay to Operator, in proportion to the share
of the Working Interest owned by the Developer in the wells, all other
costs for such well within five (5) business days of receipt of notice
from Operator that such well has been drilled to the objective depth and
logged and is to be completed. Developer shall pay, in proportion to the
share of the Working Interest owned by the Developer in the wells, any
extra costs incurred with respect to each well pursuant to sub-section
(a) above within ten (10) business days of its receipt of Operator's
statement therefor.
(c) Operator shall determine whether or not to run the production
casing for an attempted completion or to plug and abandon any well
drilled hereunder; provided, however, that a well shall be completed
only if Operator has made a good faith determination that there is a
reasonable possibility of obtaining commercial quantities of oil and/or
gas.
(d) If Operator determines at any time during the drilling or
attempted completion of any well hereunder, in accordance with the
generally accepted and customary oil and gas field practices and
techniques then prevailing in the geographic area of the well location,
that such well should not be completed, it shall promptly and properly
plug and abandon the same. In such event, such well shall be deemed a
dry hole and the dry hole footage price for each well drilled hereunder
shall be $20.60 per foot multiplied by the depth of the well, as
specified in sub-section (a) above, and shall be charged to the
Developer in proportion to the share of the Working Interest owned by
the Developer in the well. Any amounts paid by the Developer with
respect to such dry hole which exceed the aforesaid dry hole footage
price shall be retained by Operator and shall be applied to the costs
for an additional well or wells to be drilled on the Additional Well
Locations.
5. TITLE EXAMINATION OF WELL LOCATIONS; LIABILITY FOR TITLE DEFECTS.
(a) The Developer hereby acknowledges that Operator has furnished
Developer with the title opinions identified on Exhibit A, and other
documents and information which Developer or its counsel has requested
in order to determine the adequacy of the title to the Initial Well
Locations and leased premises subject to this Agreement. The Developer
hereby accepts the title to said Initial Well Locations and leased
premises and acknowledges and agrees that, except for any loss, expense,
cost or liability caused by the breach of any of the warranties and
representations made by Atlas in Section l(b) hereof, any loss, expense,
cost or liability whatsoever caused by or related to any defect or
failure of such title shall be the sole responsibility of and shall be
borne entirely by the Developer.
(b) Prior to commencing the drilling of any well on any Additional
Well Location designated pursuant to this Agreement, Operator shall
conduct, or cause to be conducted, a title examination of such
Additional Well Location, in order to obtain appropriate abstracts,
opinions and certificates and other information necessary to determine
the adequacy of title to both the applicable Lease and the fee title of
the lessor to the premises covered by such Lease. The results of such
title examination and such other information as is necessary to
determine the adequacy of title for drilling purposes shall be
submitted to the Developer for its review and acceptance, and no
drilling shall be commenced until such title has been accepted in
writing by the Developer. After any title has been accepted by the
Developer, any loss, expense, cost or liability whatsoever, caused by or
related to any defect or failure of such title shall be the sole
responsibility of and shall be borne entirely by the Developer, unless
such loss, expense, cost or liability was caused by the breach of any of
the warranties and representations made by Atlas in Section l(b) of this
Agreement.
6. OPERATIONS SUBSEQUENT TO COMPLETION OF THE WELLS; PRICE
DETERMINATIONS; PLUGGING AND ABANDONMENT.
(a) Commencing with the month in which a well drilled hereunder
begins to produce, Operator shall be entitled to an operating fee of
$275 per month for each well being operated under this Agreement,
proportionately reduced to the extent the Developer owns less than 100%
of the Working Interest in the wells, in lieu of any direct charges by
Operator for its services or the provision by Operator of its equipment
for normal superintendence and maintenance of such wells and related
pipelines and facilities. Such operating fees shall cover all normal,
regularly recurring operating expenses for the production, delivery and
sale of natural gas, including without limitation well tending, routine
maintenance and adjustment, reading meters, recording production,
pumping, maintaining appropriate books and records, preparing reports to
the Developer and government agencies, and collecting and disbursing
revenues, but shall not cover costs and expenses related to the (i)
production and sale of oil, (ii) collection and disposal of salt water
or other liquids produced by the wells, (iii) rebuilding of access
roads, and (iv) purchase of equipment, materials or third party
services, which, subject to the provisions of sub-section (c) of this
Section 6, shall be paid by the Developer in proportion to the share of
the Working Interest owned by the Developer in the wells. Any well which
is temporarily abandoned or shut-in continuously for the entire month
shall not be considered a producing well for purposes of determining the
number of wells in such month subject to the aforesaid operating fee.
(b) The monthly operating fee set forth in sub-section (a) above may
in the following manner be adjusted annually as of the first day of
January (the "Adjustment Date") each year beginning January l, 1999.
Such adjustment, if any, shall not exceed the percentage increase in
the average weekly earnings of "Crude Petroleum, Natural Gas, and
Natural Gas Liquids" workers, as published by the U.S. Department of
Labor, Bureau of Labor Statistics, and shown in Employment and Earnings
Publication, Monthly Establishment Data, Hours and Earning Statistical
Table C-2, Index Average Weekly Earnings of "Crude Petroleum, Natural
Gas, and Natural Gas Liquids" workers, SIC Code #131-2, or any successor
index thereto, since January l, 1996, in the case of the first
adjustment, and since the previous Adjustment Date, in the case of each
subsequent adjustment.
(c) Without the prior written consent of the Developer, pursuant to
a written estimate submitted by Operator, Operator shall not undertake
any single project or incur any extraordinary cost with respect to any
well being produced hereunder reasonably estimated to result in an
expenditure of more than $5,000, unless such project or extraordinary
cost is necessary to safeguard persons or property or to protect the
well or related facilities in the event of a sudden emergency. In no
event, however, shall the Developer be required to pay for any project
or extraordinary cost arising from the negligence or misconduct of
Operator, its agents, servants, employees, contractors, licensees or
invitees. All extraordinary costs incurred and the cost of projects
undertaken with respect to a well being produced hereunder shall be
billed at the invoice cost of third party services performed or
materials purchased together with a reasonable charge by Operator for
services performed directly by it, in proportion to the share of the
Working Interest owned by the Developer in the wells. Operator shall
have the right to require the Developer to pay in advance of undertaking
any such project all or a portion of the estimated costs thereof in
proportion to the share of the Working Interest owned by the Developer
in the wells.
(d) Developer shall have no interest in the pipeline gathering
system, which gathering system shall remain the sole property of
Operator and shall be maintained at Operator's sole cost and expense.
(e) Notwithstanding anything herein to the contrary, the Developer
shall have full responsibility for and bear all costs in proportion to
the share of the Working Interest owned by the Developer in the wells
with respect to obtaining price determinations under and otherwise
complying with the Natural Gas Policy Act of 1978 and the implementing
state regulations. Such responsibility shall include, without
limitation, preparing, filing, and executing all applications,
affidavits, interim collection notices, reports and other documents
necessary or appropriate to obtain price certification, to effect sales
of natural gas, or otherwise to comply with said Act and the
implementing state regulations. Operator agrees to furnish such
information and render such assistance as the Developer may reasonably
request in order to comply with said Act and the implementing state
regulations without charge for services performed by its employees.
(f) The Developer shall have the right to direct Operator to plug
and abandon any well which has been completed hereunder as a producer,
and Operator shall not plug and abandon any such well prior to obtaining
the written consent of the Developer; provided, however, that if
Operator in accordance with the generally accepted and customary oil and
gas field practices and techniques then prevailing in the geographic
area of the well location, determines that any such well should be
plugged and abandoned and makes a written request to the Developer for
authority to plug and abandon any such well and the Developer fails to
respond in writing to such request within forty-five (45) days following
the date of such request, then the Developer shall be deemed to have
consented to the plugging and abandonment of such well(s). All costs and
expenses related to plugging and abandoning the wells which have been
drilled and completed as producing wells hereunder shall be borne and
paid by the Developer in proportion to the share of the Working Interest
owned by the Developer in the wells. At any time after three (3) years
from the date each well drilled and completed hereunder is placed into
production, Operator shall have the right to deduct each month from the
proceeds of the sale of the production from the well operated hereunder
up to $200, in proportion to the share of the Working Interest owned by
the Developer in the wells, for the purpose of establishing a fund to
cover the estimated costs of plugging and abandoning said well. All such
funds shall be deposited in a separate interest bearing escrow account
for the account of the Developer, and the total amount so retained and
deposited shall not exceed Operator's reasonable estimate of such costs.
7. BILLING AND PAYMENT PROCEDURE WITH RESPECT TO OPERATION OF WELLS;
RECORDS, REPORTS AND INFORMATION.
(a) Operator shall promptly and timely pay and discharge on behalf
of the Developer, in proportion to the share of the Working Interest
owned by the Developer in the wells, all severance taxes, royalties,
overriding royalties, operating fees, pipeline gathering charges and
other expenses and liabilities payable and incurred by reason of its
operation of the wells in accordance with this Agreement and shall pay,
in proportion to the share of the Working Interest owned by the
Developer in the wells, on or before the due date any third party
invoices rendered to Operator with respect to such costs and expenses;
provided, however, that Operator shall not be required to pay and
discharge as aforesaid any such costs and expenses which are being
contested in good faith by Operator. Operator shall deduct the foregoing
costs and expenses from the Developer's share of the proceeds of the oil
and/or gas sold from the wells operated hereunder and shall keep an
accurate record of the Developer's account hereunder, showing expenses
incurred and charges and credits made and received with respect to each
well. In the event that such proceeds are insufficient to pay said costs
and expenses, Operator shall promptly and timely pay and discharge the
same, in proportion to the share of the Working Interest owned by the
Developer in the wells, and prepare and submit an invoice to the
Developer each month for said costs and expenses, such invoice to be
accompanied by the form of statement specified in subsection (b) below.
Any such invoice shall be paid by the Developer within ten (10) business
days of its receipt.
(b) Operator shall disburse to the Developer, on a monthly basis,
the Developer's share of the proceeds received from the sale of oil
and/or gas sold from the wells operated hereunder, less (i) the amounts
charged to the Developer under sub-section (a) hereof, and (ii) such
amount, if any, withheld by Operator for future plugging costs pursuant
to sub-section (f) of Section 6. Each such disbursement made and/or
invoice submitted pursuant to sub-section (a) above shall be accompanied
by a statement itemizing with respect to each well (i) the total
production of oil and/or gas since the date of the last disbursement or
invoice billing period, as the case may be, and the Developer's share
thereof, (ii) the total proceeds received from any sale thereof, and the
Developer's share thereof, (iii) the costs and expenses deducted from
said proceeds and/or being billed to the Developer pursuant to sub-
section (a) above, (iv) the amount withheld for future plugging costs,
and (v) such other information as Developer may reasonably request,
including without limitation copies of all third party invoices listed
thereon for such period. Operator agrees to deposit all proceeds from
the sale of oil and/or gas sold from the wells operated hereunder in a
separate checking account maintained by Operator, which account shall be
used solely for the purpose of collecting and disbursing funds
constituting proceeds from the sale of production hereunder.
(c) In addition to the statements required under sub-section (b)
above, Operator, within seventy-five (75) days after the completion of
each well drilled hereunder, shall furnish the Developer with a detailed
statement itemizing with respect to such well the total costs and
charges under Section 4(a) hereof and the Developer's share thereof, and
such information as is necessary to enable the Developer (i) to allocate
any extra costs incurred with respect to such well between tangible and
intangible and (ii) to determine the amount of investment tax credit, if
applicable.
(d) Upon request, Operator shall promptly furnish the Developer with
such additional information as it may reasonably request, including
without limitation geological, technical and financial information, in
such form as may reasonably be requested, pertaining to any phase of the
operations and activities governed by this Agreement. The Developer and
its authorized employees, agents and consultants, including independent
accountants shall, at Developer's sole cost and expense, (i) upon at
least ten (10) days' written notice have access during normal business
hours to all of Operator's records pertaining to operations hereunder,
including without limitation, the right to audit the books of account of
Operator relating to all receipts, costs, charges and expenses under
this Agreement, and (ii) have access, at its sole risk, to any wells
drilled by Operator hereunder at all times to inspect and observe any
machinery, equipment and operations.
8. OPERATOR'S LIEN.
(a) The Developer hereby grants Operator a first and preferred lien
on and security interest in the interest of the Developer covered by
this Agreement, and in the Developer's interest in oil and gas produced
and the proceeds thereof, and upon the Developer's interest in materials
and equipment, to secure the payment of all sums due from Developer to
Operator under the provisions of this Agreement.
(b) In the event that the Developer fails to pay any amount owing
hereunder by it to the Operator within the time limit for payment
thereof, Operator, without prejudice to other existing remedies, is
authorized at its election to collect from any purchaser or purchasers
of oil or gas and retain the proceeds from the sale of the Developer's
share thereof until the amount owed by the Developer, plus twelve
percent (12%) interest on a per annum basis and any additional costs
(including without limitation actual attorneys' fees and costs)
resulting from such delinquency, has been paid. Each purchaser of oil or
gas shall be entitled to rely upon Operator's written statement
concerning the amount of any default.
9. SUCCESSORS AND ASSIGNS; TRANSFERS; APPOINTMENT OF AGENT.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the undersigned parties and their respective successors and
permitted assigns; provided, however, that Operator may not assign,
transfer, pledge, mortgage, hypothecate, sell or otherwise dispose of
any of its interest in this Agreement, or any of the rights or
obligations hereunder, without the prior written consent of the
Developer, except that such consent shall not be required in connection
with (i) the assignment of work to be performed for Operator by
subcontractors, it being understood and agreed, however, that any such
assignment to Operator's subcontractors shall not in any manner relieve
or release Operator from any of its obligations and responsibilities
under this Agreement, or (ii) any lien, assignment, security interest,
pledge or mortgage arising under or pursuant to Operator's present or
future financing arrangements, or (iii) the liquidation, merger,
consolidation or sale of substantially all of the assets of Operator or
other corporate reorganization; and provided, further, that in order to
maintain uniformity of ownership in the wells, production, equipment,
and leasehold interests covered by this Agreement, and notwithstanding
any other provisions to the contrary, the Developer shall not, without
the prior written consent of Operator, sell, assign, transfer, encumber,
mortgage or otherwise dispose of any of its interest in the wells,
production, equipment or leasehold interests covered hereby unless such
disposition encompasses either (i) the entire interest of the Developer
in all wells, production, equipment and leasehold interests subject
hereto or (ii) an equal undivided interest in all such wells,
production, equipment, and leasehold interests.
(b) Subject to the provisions of sub-section (a) above, any sale,
encumbrance, transfer or other disposition made by the Developer of its
interests in the wells, production, equipment, and/or leasehold
interests covered hereby shall be made (i) expressly subject to this
Agreement, (ii) without prejudice to the rights of the other party, and
(iii) in accordance with and subject to the provisions of the Lease.
(c) If at any time the interest of the Developer is divided among or
owned by co-owners, Operator may, at its discretion, require such co-
owners to appoint a single trustee or agent with full authority to
receive notices, reports and distributions of the proceeds from
production, to approve expenditures, to receive billings for and approve
and pay all costs, expenses and liabilities incurred hereunder, to
exercise any rights granted to such co-owners under this Agreement, to
grant any approvals or authorizations required or contemplated by this
Agreement, to sign, execute, certify, acknowledge, file and/or record
any agreements, contracts, instruments, reports, or documents whatsoever
in connection with this Agreement or the activities
contemplated hereby, and to deal generally with, and with power to bind,
such co-owners with respect to all activities and operations
contemplated by this Agreement; provided, however, that all such co
owners shall continue to have the right to enter into and execute all
contracts or agreements for their respective shares of the oil and gas
produced from the wells drilled hereunder in accordance with subsection
(c) of Section 11 hereof.
10. INSURANCE; OPERATOR'S LIABILITY.
(a) Operator shall obtain and maintain at its own expense so long as
it is Operator hereunder all required Workmen's Compensation Insurance
and comprehensive general public liability insurance in amounts and
coverage not less than $1,000,000 per person per occurrence for personal
injury or death and $1,000,000 for property damage per occurrence, which
insurance shall include coverage for blow-outs and total liability
coverage of not less than $10,000,000. Subject to the aforesaid limits,
the Operator's general public liability insurance shall be in all
respects comparable to that generally maintained in the industry with
respect to services of the type to be rendered and activities of the
type to be conducted under this Agreement; Operator's general public
liability insurance shall, if permitted by Operator's insurance carrier,
(i) name the Developer and all of Developer's Investor General Partners
as additional insured parties, and (ii) provide that at least thirty
(30) days' prior notice of cancellation and any other adverse material
change in the policy shall be given to the Developer and its Investor
General Partners; provided, that the Developer shall reimburse Operator
for the additional cost, if any, of including it and its Investor
General Partners as additional insured parties under the Operator's
insurance. Current copies of all policies or certificates thereof shall
be delivered to the Developer upon request. It is understood and agreed
that Operator's insurance coverage may not adequately protect the
interests of the Developer hereunder and that the Developer shall carry
at its expense such excess or additional general public liability,
property damage, and other insurance, if any, as the Developer deems
appropriate.
(b) Operator shall require all of its subcontractors to carry all
required Workmen's Compensation Insurance and to maintain such other
insurance, if any, as Operator in its discretion may require.
(c) Operator's liability to the Developer as Operator hereunder
shall be limited to, and Operator shall indemnify the Developer and hold
it harmless from, claims, penalties, liabilities, obligations, charges,
losses, costs, damages or expenses (including but not limited to
reasonable attorneys' fees) relating to, caused by or arising out of (i)
the noncompliance with or violation by Operator, its employees, agents,
or subcontractors of any local, state or federal law, statute,
regulation, or ordinance; (ii) the negligence or misconduct of Operator,
its employees, agents or subcontractors; or (iii) the breach of or
failure to comply with any provisions of this Agreement.
11. INTERNAL REVENUE CODE ELECTION; RELATIONSHIP OF PARTIES; RIGHT
TO TAKE PRODUCTION IN KIND.
(a) With respect to this Agreement, each of the parties hereto
elects, under the authority of Section 761 (a) of the Internal Revenue
Code of 1986, as amended, to be excluded from the application of all of
the provisions of Subchapter K of Chapter 1 of Sub Title A of the
Internal Revenue Code of 1986, as amended. If the income tax laws of the
state or states in which the property covered hereby is located contain,
or may hereafter contain, provisions similar to those contained in the
Subchapter of the Internal Revenue Code of 1986, as amended, referred to
under which a similar election is permitted, each of the parties agrees
that such election shall be exercised. Beginning with the first taxable
year of operations hereunder, each party agrees
that the deemed election provided by Section 1.761-2(b)(2)(ii) of the
Regulations under the Internal Revenue Code of 1986, as amended, will
apply; and no party will file an application under Section 1.761-2
(b)(3)(i) and (ii) of said Regulations to revoke such election. Each
party hereby agrees to execute such documents and make such filings with
the appropriate governmental authorities as may be necessary to effect
such election.
(b) It is not the intention of the parties hereto to create, nor
shall this Agreement be construed as creating, a mining or other
partnership or association or to render the parties liable as partners
or joint venturers for any purpose. Operator shall be deemed to be an
independent contractor and shall perform its obligations as set forth
herein or as otherwise directed by the Developer.
(c) Subject to the provisions of Section 8 hereof, the Developer
shall have the exclusive right to sell or dispose of its proportionate
share of all oil and gas produced from the wells to be drilled
hereunder, exclusive of production which may be used in development and
producing operations, production unavoidably lost, and production used
to fulfill any free gas obligations under the terms of the applicable
Lease or Leases; and Operator shall not have any right to sell or
otherwise dispose of such oil and gas. The Developer shall have the
exclusive right to execute all contracts relating to the sale or
disposition of its proportionate share of the production from the wells
drilled hereunder. Developer shall have no interest in any gas purchase
agreements of Operator, except the right to receive Developer's share of
the proceeds received from the sale of any gas or oil from wells
developed hereunder. The Developer agrees to designate Operator or
Operator's designated bank agent as the Developer's collection agent in
any such contract. Upon request, Operator shall render assistance in
arranging such sale or disposition and shall promptly provide the
Developer with all relevant information which comes to Operator's
attention regarding opportunities for sale of production. In the event
Developer shall fail to make the arrangements necessary to take in kind
or separately dispose of its proportionate share of the oil and gas
produced hereunder, Operator shall have the right, subject to the
revocation at will by the Developer, but not the obligation, to purchase
such oil and gas or sell it to others at any time and from time to time,
for the account of the Developer at the best price obtainable in the
area for such production, however, Operator shall have no liability to
Developer should Operator fail to market such production. Any such
purchase or sale by Operator shall be subject always to the right of the
Developer to exercise at any time its right to take in kind, or
separately dispose of, its share of oil and gas not previously delivered
to a purchaser. Any purchase or sale by Operator of any other party's
share of oil and gas shall be only for such reasonable periods of time
as are consistent with the minimum needs of the Industry under the
particular circumstance, but in no event for a period in excess of one
(1) year.
12. FORCE MAJEURE.
(a) If Operator is rendered unable, wholly or in part, by force
majeure (as hereinafter defined) to carry out its obligations under this
Agreement, the Operator shall give to the Developer prompt written
notice of the force majeure with reasonably full particulars concerning
it; thereupon, the obligations of the Operator, so far as it is affected
by the force majeure, shall be suspended during but no longer than, the
continuance of the force majeure. Operator shall use all reasonable
diligence to remove the force majeure as quickly as possible to the
extent the same is within reasonable control.
(b) The term "force majeure" shall mean an act of God, strike,
lockout, or other industrial disturbance, act of the public enemy, war,
blockade, public riot, lightning, fire, storm, flood, explosion,
governmental restraint, unavailability of equipment or materials, plant
shut-downs, curtailments by purchasers and any other causes whether of
the kind specifically enumerated above or otherwise, which directly
precludes Operator's performance hereunder and is not reasonably within
the control of the Operator.
(c) The requirement that any force majeure shall be remedied with
all reasonable dispatch shall not require the settlement of strikes,
lockouts, or other labor difficulty affecting the Operator, contrary to
its wishes; the method of handling all such difficulties shall be
entirely within the discretion of the Operator.
13. TERM.
This Agreement shall become effective when executed by Operator and the
Developer and, except as provided in sub-section (c) of Section 3, shall
continue and remain in full force and effect for the productive lives of
the wells being operated hereunder.
14. GOVERNING LAW AND INVALIDITY.
This Agreement shall be governed by, construed and interpreted in
accordance with the laws of the Commonwealth of Pennsylvania. The
invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
15. INTEGRATION.
This Agreement, including the Exhibits hereto, constitutes and
represents the entire understanding and agreement of the parties with
respect to the subject matter hereof and supersedes all prior
negotiations, understandings, agreements, and representations relating
to the subject matter hereof. No change, waiver, modification, or
amendment of this Agreement shall be binding or of any effect unless in
writing duly signed by the party against which such change, waiver,
modification, or amendment is sought to be enforced.
16. WAIVER OF DEFAULT OR BREACH.
No waiver by any party hereto to any default of or breach by any other
party under this Agreement shall operate as a waiver of any future
default or breach, whether of like or different character or nature.
17. NOTICES.
Unless otherwise provided herein, all notices, statements, requests, or
demands which are required or contemplated by this Agreement shall be in
writing and shall be hand-delivered or sent by registered or certified
mail, postage prepaid, to the following addresses until changed by
certified or registered letter so addressed to the other party:
(i) If to Atlas, to:
Atlas Resources, Inc.
311 Rouser Road
Moon Township, Pennsylvania 15108
Attention: President
(ii) If to Developer, to:
Atlas-Energy for the Nineties-Public #6 Ltd.
c/o Atlas Resources, Inc.
311 Rouser Road
Moon Township, Pennsylvania 15108
Notices which are served by registered or certified mail upon the
parties hereto in the manner provided in this Section shall be deemed
sufficiently served or given for all purposes under this Agreement at
the time such notice shall be mailed as provided herein in any post
office or branch post office regularly maintained by the United States
Postal Service or any successor to the functions thereof. All payments
hereunder shall be hand-delivered or sent by United States mail, postage
prepaid to the addresses set forth above until changed by certified or
registered letter so addressed to the other party.
18. INTERPRETATION.
Whenever this Agreement makes reference to "this Agreement" or to any
provision "hereof," or words to similar effect, such reference shall be
construed to refer to the within instrument unless the context clearly
requires otherwise. The titles of the Sections herein have been inserted
as a matter of convenience of reference only and shall not control or
affect the meaning or construction of any of the terms and provisions
hereof. As used in this Agreement, the plural shall include the singular
and the singular shall include the plural whenever appropriate.
19. COUNTERPARTS.
The parties hereto may execute this Agreement in any number of separate
counterparts, each of which, when executed and delivered by the parties
hereto, shall have the force and effect of an original; but all such
counterparts shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
under their respective seals as of the day and year first above written.
Attest
Secretary
[Corporate Seal]
Attest
Secretary
[Corporate Seal]
ATLAS RESOURCES, INC.
By:
President
ATLAS-ENERGY FOR NINETIES-PUBLIC #6 LTD.
By its Managing General Partner:
ATLAS RESOURCES, INC.
By:
President
=====================================================================
DESCRIPTION OF LEASES AND INITIAL WELL LOCATIONS
[To be completed as information becomes available]
1. WELL LOCATION
(a) Oil and Gas Lease from _______________________________________
dated _____________________ and recorded in Deed Book Volume __________,
Page __________ in the Recorder's Office of County, ____________,
covering approximately _________ acres in
________________________________ Township, ___________________ County,
__________________________.
(b) The portion of the leasehold estate constituting the
____________________________________________ No. __________ Well
Location is described on the map attached hereto as Exhibit A-l.
(c) Title Opinion of _________________________________,
_____________________________________,
________________________________________,
________________________________________, dated ___________________,
19_____.
(d) The Developer's interest in the leasehold estate constituting
this Well Location is an undivided % Working Interest to those
oil and gas rights from the surface to the bottom of the
Medina/Whirlpool Formation, subject to the landowner's royalty interest
and Overriding Royalty Interests.
Exhibit A
(Page 1)
INSERT ASSIGNMENT OF OIL AND GAS LEASE (PROVIDED BY CLIENT - 2 PAGES) AS
EXHIBIT B
ADDENDUM NO. __________
TO DRILLING AND OPERATING AGREEMENT
DATED ___________________ , 1997
THIS ADDENDUM NO. __________ made and entered into this ______ day of
________________, 1997, by and between ATLAS RESOURCES, INC., a
Pennsylvania corporation (hereinafter referred to as "Operator"),
and
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD., a Pennsylvania limited
partnership, (hereinafter referred to as the Developer).
WITNESSETH THAT:
WHEREAS, Operator and the Developer have entered into a Drilling and
Operating Agreement dated ___________________, 1997, (the "Agreement"),
which Agreement relates to the drilling and operating of
________________ (______) natural gas wells on the ________________
(______) Initial Well Locations in Mercer County, Pennsylvania,
identified on the maps attached as Exhibits A-l through A-______ to said
Agreement, and provides for the development upon the terms and
conditions therein set forth of such Additional Well Locations as the
parties may from time to time designate; and
WHEREAS, pursuant to Section l(c) of said Agreement, Operator and
Developer presently desire to designate ________________ Additional
Well Locations hereinafter described to be developed in accordance with
the terms and conditions of said Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Pursuant to Section l(c) of the aforesaid Agreement, the
Developer hereby authorizes Operator to drill, complete (or plug) and
operate, upon the terms and conditions set forth in said Agreement and
this Addendum No.__________, ________________ additional natural gas
wells on the ________________ Additional Well Locations described on
Exhibit A hereto and on the maps attached hereto as Exhibits A-______
through A-______.
2. Operator, as Developer's independent contractor, agrees to
drill, complete (or plug) and operate said additional natural gas wells
on said Additional Well Locations in accordance with the terms and
conditions of said Agreement and further agrees to use its best efforts
to commence drilling the first such additional well within thirty (30)
days after the date hereof and to commence drilling all said
________________ additional wells on or before March 31, 1998.
3. Developer hereby acknowledges that Operator has furnished
Developer with the title opinions identified on Exhibit A hereto, and
such other documents and information which Developer or its counsel has
requested in order to determine the adequacy of the title to the
aforesaid Additional Well Locations. The Developer hereby accepts the
title to the aforesaid Additional Well Locations and leased premises in
accordance with the provisions of Section 5 of the Agreement.
4. The drilling and operation of said ________________ additional
natural gas wells on the aforesaid ________________ Additional Well
Locations shall be in accordance with and subject to the terms and
conditions set forth in the aforesaid Agreement as supplemented by this
Addendum No. __________ and except as previously supplemented, all terms
and conditions of the aforesaid Agreement shall remain in full force and
effect as originally written.
5. This Addendum No. __________ shall be legally binding upon, and
shall inure to the benefit of, the parties hereto and their respective
heirs, personal representatives, successors and assigns.
Exhibit C
(Page 1)
WITNESS the due execution hereof on the day and year first above
written.
Attest: ATLAS RESOURCES, INC.
________________________________________ By
___________________________________________
Secretary President
[Corporate Seal]
ATLAS ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By its Managing General Partner:
ATLAS RESOURCES, INC.
Attest:
________________________________________ By
____________________________________________
Secretary President
[Corporate Seal]
Exhibit C
(Page 2)
====================================================================
EXHIBIT (B)
SPECIAL SUITABILITY REQUIREMENTS AND DISCLOSURES TO INVESTORS
SPECIAL SUITABILITY REQUIREMENTS AND DISCLOSURES TO INVESTORS
Prospective investors, if a resident of one of the following states,
must meet that state's qualification and suitability standards as
follows:
SUBSCRIBERS TO LIMITED PARTNER UNITS.
If a Michigan or North Carolina resident (1) a net worth of not less
than $225,000 (exclusive of home, furnishings and automobiles), or (2) a
net worth of not less than $60,000 (exclusive of home, furnishings and
automobiles) and estimated current year taxable income as defined in
Section 63 of the Internal Revenue Code of 1986 of $60,000 or more
without regard to an investment in the Partnership. In addition, a
resident of Michigan or Ohio shall not make an investment in the
Partnership in excess of 10% of his net worth (exclusive of home,
furnishings and automobiles).
If a resident of California (1) a net worth of not less than $250,000
(exclusive of home, furnishings and automobiles) and expects to have
gross income in the current year of $65,000 or more, or (2) a net worth
of not less than $500,000 (exclusive of home, furnishings and
automobiles), or (3) a net worth of not less than $1,000,000, or (4)
expects to have gross income in the current year of not less than
$200,000.
SUBSCRIBERS TO INVESTOR GENERAL PARTNER UNITS.
If a resident of California: (1) a net worth of not less than $250,000
(exclusive of home, furnishings and automobiles) and expects to have
annual gross income in the current year of $120,000 or more; or (2) a
net worth of not less than $500,000 (exclusive of home, furnishings and
automobiles); or (3) a net worth of not less than $1,000,000; or (4)
expects to have gross income in the current year of not less than
$200,000.
If a resident of Alabama, Maine, Massachusetts, Minnesota, Mississippi,
North Carolina, Pennsylvania, Tennessee, or Texas (1) an individual or
joint net worth with my spouse of $225,000 or more, without regard to
the investment in the Partnership, (exclusive of home, home furnishings
and automobiles) and a combined gross income of $100,000 or more for the
current year and for the two previous years; or (2) an individual or
joint net worth with my spouse in excess of $1,000,000, inclusive of
home, home furnishings and automobiles; or (3) an individual or joint
net worth with my spouse in excess of $500,000, exclusive of home, home
furnishings and automobiles; or (4) a combined "gross income" as defined
in Section 61 of the Internal Revenue Code of 1986, as amended, in
excess of $200,000 in the current year and the two previous years.
If a resident of Arizona, Indiana, Iowa, Kentucky, Michigan, Missouri,
New Mexico, Ohio, Oklahoma, South Dakota, Vermont, or Washington: (1) an
individual or joint net worth with my spouse of $225,000 or more,
without regard to the investment in the Partnership, (exclusive of home,
home furnishings and automobiles) and a combined "taxable income" of
$60,000 or more for the previous year and expects to have a combined
"taxable income" of $60,000 or more for the current year and for the
succeeding year; or (2) an individual or joint net worth with my spouse
in excess of $1,000,000, inclusive of home, home furnishings and
automobiles; or (3) an individual or joint net worth with my spouse in
excess of $500,000, exclusive of home, home furnishings and automobiles;
or (4) a combined "gross income" as defined in Section 61
of the Internal Revenue Code of 1986, as amended, in excess of $200,000
in the current year and the two previous years. In addition, a resident
of Michigan or Ohio shall not make an investment in the Partnership in
excess of 10% of his net worth (exclusive of home, furnishings and
automobiles).
If a resident of New Hampshire he must represent that he is an
"accredited investor" as that term is defined in Regulation D
promulgated by the Securities and Exchange Commission, which includes,
but is not limited to: (1) a natural person whose individual net worth,
or joint net worth with that person's spouse, at the time of his
purchase exceeds $1,000,000; and (2) a natural person who had an
individual income in excess of $200,000 in each of the two most recent
years or joint income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of reaching the
same income level in the current year.
If a resident of Missouri, I am aware that:
THESE SECURITIES ARE NOT ELIGIBLE FOR ANY TRANSACTIONAL EXEMPTION UNDER
THE MISSOURI UNIFORM SECURITIES ACT (SECTION 409.402(B), R.S.MO.(1978).
UNLESS THESE SECURITIES ARE AGAIN REGISTERED UNDER THE ACT, THEY MAY NOT
BE REOFFERED FOR SALE OR RESOLD IN THE STATE OF MISSOURI (SECTION
409.301, R.S.MO.(1978)).
If a resident of California, I am aware that:
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE
OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
As a condition of qualification of the Units for sale in the State of
California, the following rule is hereby delivered to each California
purchaser.
CALIFORNIA ADMINISTRATIVE CODE, TITLE 10, CH. 3, RULE 260.141.11.
RESTRICTION ON TRANSFER.
(a) The issuer of any security upon which a restriction on transfer
has been imposed pursuant to Sections 260.102.6, 260.141.10 and 260.534
shall cause a copy of this section to be delivered to each issuee or
transferee of such security at the time the certificate evidencing the
security is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to
consummate a sale or transfer of such security, or any interest therein,
without the prior written consent of the Commissioner (until this
condition is removed pursuant to Section 260.141.12 of these rules),
except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in Subdivision (i) of Section 25102 of
the Code or Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or any
custodian or trustee for the account of the transferor's ancestors,
descendants or spouse, or to a transferee by a trustee or custodian for
the account of the transferee or the transferee's ancestors, descendants
or spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either
acting as such or as a finder) to a resident of a foreign state,
territory or country who is neither domiciled in this state to the
knowledge of the broker-dealer, nor actually present in this state if
the sale of such securities is not in violation of any securities law of
the foreign state, territory or country concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or member of an underwriting syndicate
or selling group;
(9) if the interest sold or transferred is a pledge or other lien
given by the purchaser to the seller upon a sale of the security for
which the Commissioner's written consent is obtained or under this rule
not required;
(10) by way of a sale qualified under Sections 25111, 25112, 25113
or 25121 of the Code, of the securities to be transferred, provided
that no order under Section 25140 or Subdivision (a) of Section 25143 is
in effect with respect to such qualification;
(11) by a corporation or wholly-owned subsidiary of such
corporation, or by a wholly-owned subsidiary of a corporation to such
corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or
25113 of the Code, provided that no order under Section 25140 or
Subdivision (a) of Section 25143 is in effect with respect to such
qualification;
(13) between residents of foreign states, territories or countries
who are neither domiciled nor actually present in this state;
(14) to the State Controller pursuant to the Unclaimed Property Law
or to the administrator of the unclaimed property law of another state;
(15) by the State Controller pursuant to the Unclaimed Property Law
or by the administrator of the unclaimed property law of another state
if, in either such case, such person (i) discloses to potential
purchasers at the sale that transfer of the securities is restricted
under this rule, (ii) delivers to each purchaser a copy of this rule,
and (iii) advises the Commissioner of the name of each purchaser;
(16) by a trustee to a successor trustee when such transfer does
not involve a change in the beneficial ownership of the securities;
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification requirement of
Section 25110 of the Code but exempt from that qualification requirement
by subdivision (f) of Section 25102;
provided that any such transfer is on the condition that any certificate
evidencing the security issued to such transferee shall contain the
legend required by this section.
(c) The certificates representing all such securities subject to
such a restriction on transfer, whether upon initial issuance or upon
any transfer thereof, shall bear on their face a legend, prominently
stamped or printed thereon in capital letters of not less than 10-point
size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE
STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
IF A RESIDENT OF NORTH CAROLINA, I AM AWARE THAT:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE
TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE
SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY
OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
=====================================================================
TABLE OF CONTENTS
Page
Summary of the Offering 1
Risk Factors 8
Capitalization and Source of Funds and Use of
Proceeds 17
Compensation 19
Estimate of Administrative Costs and Direct
Costs to be Borne by the Partnership 20
Terms of the Offering 21
Conflicts of Interest 24
Fiduciary Responsibility of the Managing Gen
eral Partner 31
Prior Activities 32 Management 39
Investment Objectives 44 Proposed
Activities 45
Competition, Markets and Regulation 81
Participation in Costs and Revenues 83
Tax Aspects 86
Definitions 98
Summary of Partnership Agreement 103
Summary of Drilling and Operating Agreement 105
Reports to Investors 106
Repurchase Obligation 107
Transferability of Units 108 Plan of
Distribution 108 Sales Material
109
Legal Opinions 109
Experts 109
Litigation 110
Additional Information 110
Financial Information Concerning the Man
aging General Partner, Atlas Group and the
Partnership 110
EXHIBIT (A) - Amended and Restated Certificate
and Agreement of Limited Partnership
EXHIBIT (I-A) - Managing General Partner Signature
Page
EXHIBIT (I-B) - Subscription Agreement
EXHIBIT (II) - Drilling and Operating Agreement
EXHIBIT (B) - Special Suitability Requirements and
Disclosures to Investors
No dealer, salesman or other person has been authorized to give any
information or make any representations other than those contained in
this Prospectus in connection with this offering, and if given or made,
such information or representations must not be relied upon as having
been authorized by the Managing General Partner. The delivery of this
Prospectus at any time does not imply that the information herein is
correct as of any time subsequent to its date of issue. This Prospectus
does not constitute an offer to buy any of these securities in any
State to any person to whom it is unlawful to make such offer or
solicitation in such State.
ATLAS-ENERGY FOR
THE NINETIES -
PUBLIC #6 LTD.
PROSPECTUS
September ____, 1997
Until December 31, 1997, all dealers effecting transactions in the
registered securities, whether or not participating in this
distribution, may be required to deliver a prospectus. This is in
addition to the obligation of dealers to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
=====================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 22. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1741 et seq. of the Pennsylvania Business Corporation Law
provides for indemnification of officers, directors, employees and
agents by a corporation subject to certain limitations.
Under Section 4.05 of the Amended and Restated Certificate and Agreement
of Limited Partnership, the Participants, within the limits of their
Capital Contributions, and the Partnership, generally agree to indemnify
and exonerate the Managing General Partner, the Operator and their
Affiliates from claims of liability to any third party arising out of
operations of the Partnership provided that they determined in good
faith that the course of conduct which caused the loss or liability was
in the best interest of the Partnership, they were acting on behalf of
or performing services for the Partnership and such course of conduct
was not the result of their negligence or misconduct.
Paragraph 11 of the Dealer-Manager Agreement provides for the
indemnification of Atlas, the Partnership and control persons under
specified conditions by the Dealer-Manager and/or Selling Agent.
ITEM 23. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be incurred in connection with the issuance and
distribution of the securities to be registered, other than underwriting
discounts, commissions and expense allowances, are estimated to be as
follows:
Accounting $
2,000.00 *
Legal Fees (including Blue Sky)
50,000.00 *
Printing
95,000.00 *
SEC Registration Fee
3,030.00
Blue Sky Filing Fees (excluding legal fees)
25,916.00 *
NASD Filing Fee
1,500.00
Miscellaneous
272,554.00 *
Total $450,000.00 *
*Estimated
ITEM 24. RECENT SALES OF UNREGISTERED SECURITIES.
None by the Registrant.
Atlas Resources, Inc. ("Atlas"), an Affiliate of the Registrant, has
made sales of unregistered and registered securities within the last
three years. See the section of the Prospectus captioned "Prior
Activities" regarding the sale of limited and general partner interests.
In the opinion of Atlas, the foregoing unregistered securities in each
case have been and/or are being offered and sold in compliance with
exemptions from registration provided by the Securities Act of 1933, as
amended, including the exemptions provided by Section 4(2) of that Act
and certain rules and regulations promulgated thereunder. The
securities in each case have been and/or are being offered and sold to a
limited number of persons who had the sophistication to understand the
merits and risks of the investment and who had the financial ability to
bear such risks. The units of limited
and general partner interests were sold to persons who were Accredited
Investors, as that term is defined in Regulation D (17 CFR 230.501(a)),
or who had, at the time of purchase, a net worth of at least $225,000
(exclusive of home, furnishings and automobiles) or a net worth
(exclusive of home, furnishings and automobiles) of at least $125,000
and gross income of at least $75,000, or otherwise satisfied Atlas that
the investment was suitable.
ITEM 25. EXHIBITS.
1(a) Proposed form of Dealer-Manager Agreement with Anthem
Securities, Inc.
1(b) Proposed form of Dealer-Manager Agreement with Bryan Funding,
Inc.
3(a) Articles of Incorporation of Atlas Resources, Inc.
3(b) Bylaws of Atlas Resources, Inc.
4(a) Certificate of Limited Partnership for Atlas-Energy for the
Nineties-Public #6 Ltd.
4(b) Amended and Restated Certificate and Agreement of Limited
Partnership for Atlas-Energy for the Nineties-Public #6 Ltd. (See
Exhibit (A) to Prospectus)
4(c) Release from Shareholders
5 Opinion of Kunzman & Bollinger, Inc. as to the legality of the
Units registered hereby
8 Opinion of Kunzman & Bollinger, Inc. as to tax matters
10(a) Proposed Form of Escrow Agreement
10(b) Drilling and Operating Agreement (See Exhibit (II) to the
Amended and Restated Certificate and Agreement of Limited Partnership,
Exhibit (A) to Prospectus)
24(a) Consent of McLaughlin & Courson
24(b) Consent of United Energy Development Consultants, Inc.
24(c) Consent of Kunzman & Bollinger, Inc. (See Exhibits 5 and 8)
25 Power of Attorney
ITEM 26. UNDERTAKINGS.
(a) As required by Item 512(a) of Regulation S-B and Rule 415,
the undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a Post-Effective Amendment to this Registration Statement to:
(i) include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or of the most recent
Post-Effective Amendment thereof) which, individually or together,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such Post-Effective Amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a Post-Effective
Amendment any of the securities being registered which remain unsold at
the termination of the offering.
(e) The undersigned Registrant undertakes:
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to Atlas and its
directors, officers and controlling persons pursuant to the foregoing
provisions, or otherwise, Atlas and the Registrant have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by Atlas and its directors, officers and
controlling persons in the successful defense of any action, suit or
proceeding) is asserted by such party in connection with the securities
being registered, Registrant will unless in the opinion of its counsel
the matter has been settled by controlling precedent submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act, and will be
governed by final adjudication of such issue.
=====================================================================
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form SB-2 and has authorized
this Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized, in Moon Township, Pennsylvania, on
the 16th day of July, 1997.
ATLAS-ENERGY FOR THE NINETIES-
PUBLIC #6 LTD.
(Registrant)
By: Atlas Resources, Inc.,
Managing General Partner
James R. O'Mara and Bruce M. Wolf, By: /S/ JAMES R.
O'MARA
pursuant to the Registration Statement, James R.
O'Mara, President, Chief Executive
have been granted Power of Attorney and are Officer and
Director
signing on behalf of the names shown below,
in the capacities indicated. By: /S/ BRUCE
M. WOLF
Bruce M. Wolf, General Counsel, Secretary
and Director
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE
Charles T. Koval
James R. O'Mara Bruce
M. Wolf Donald P.
Wagner James J.
Kritzo Tony C. Banks
Frank P. Carolas
Barbara J. Krasnicki
Joseph R. Sadowski
TITLE
Chairman of the Board and a Director
President, Chief Executive Officer and a Director
General Counsel, Secretary and a Director
Vice President of Operations
Vice President of the Land Department
Vice President of Finance and Chief Financial Officer
Vice President of Geology
Vice President of Administration
Director
DATE
July 16, 1997
July 16, 1997 July 16, 1997 July 16, 1997 July 16, 1997 July 16, 1997
July 16, 1997 July 16, 1997 July 16, 1997
=====================================================================
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
As filed with the Securities and Exchange Commission on
July 21, 1997
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM SB-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
(Exact name of Registrant as Specified in its Charter)
James R. O'Mara, President
Atlas Resources, Inc.
311 Rouser Road, Moon Township, Pennsylvania 15108
(412) 262-2830
(Name, Address and Telephone Number of Agent
for Service)
Copies to:
Wallace W. Kunzman, Jr., Esq. James R. O'Mara
Kunzman & Bollinger, Inc. Atlas Resources, Inc. 5100 N.
Brookline, Suite 600 311 Rouser Road
Oklahoma City, Oklahoma 73112 Moon Township,
Pennsylvania 15108
ARTICLES OF INCORPORATION
OF ATLAS RESOURCES, INC.
- ----------------------------------------------------------------------
- ---
Exhibit 3(a)
COMMONWEALTH OF PENNSYLVANIA
688825
Department of State
To All to Whom These Presents Shall Come, Greeting:
WHEREAS, Under the provisions of the Business Corporation Law,
approved
the 5th day of May, Anno Domini one thousand nine hundred and
thirty-three, P. L. 364, as amended, the Department of State is
authorized and required to issue a
CERTIFICATE OF INCORPORATION
evidencing the incorporation of a business corporation
organized under the terms of that law, and
WHEREAS, The stipulations and conditions of that law have been
fully complied with by the persons desiring to incorporate as
ATLAS RESOURCES, INC.
THEREFORE, KNOW YE, That subject to the Constitution of this
Commonwealth and under the authority of the Business Corporation Law,
I do by these presents, which I have caused to be sealed with the
Great Seal of the Commonwealth, create, erect, and in-corporate the
incorporators of and subscribers to the shares of the proposed
corporation named above, their associates and successors, and also
those
who may thereafter become subscribers or holders of the shares of
such corporation, into a body politic and corporate in deed and in
law by the name chosen hereinbefore specified, which shall exist
perpetually and shall be invested with and have
and enjoy all the powers, privileges, and franchises incident to a
business corporation and be subject to all the duties,
requirements,
and restrictions specified and enjoined in and by the Business
Corporation Law and all other applicable laws of this Commonwealth.
GIVEN under my Hand and the Great Seal of the
Common-wealth, at the City of Harrisburg, this
9th
day of July in the year of our Lord one thousand nine hundred and
seventy-nine and of the Commonwealth the two hundred and fourth
/s/ Ethel D. Allen, D.O.
Secretary of the Commonwealth
Filed this 9th day of July1979.
Commonwealth of Pennsylvania Department of State
/s/ Ethel D.
Allen, D.O.
Secretary of the
Commonwealth
79:37 617
DSCB:BCL-204(Rev. 8-72)
Filing Fee: $75 AIB-7 688825
Articles of Incorporation-- COMMONWEALTH OF PENNSYLVANIA
Domestic Business Corporation DEPARTMENT OF STATE
CORPORATION BUREAU
In compliance with the requirements of section 204 of the
Business Cor-poration Law, act of May 5, 1933 (P.L. 364) (15
P. S. .1204) the undersigned desiring to be incorporated as a
business corporation, hereby certifies
(certify) that:
1. The name of the corporation is ATLAS RESOURCES, INC.
2. The location and post office address of the initial registered
office of
the corporation in this Commonwealth is: 311 Rouser Road,
Coraopolis,
Pennsylvania 15108
3. The corporation is incorporated under the Business Corporation Law
of
the Commonwealth of Pennsylvania for the following purpose or
purposes:
To engage in and do any lawful act concerning any or all lawful
business
for which corporations may be incorporated under this act.
4. The term for which the corporation is to exist is perpetual.
5. The aggregate number of shares which the corporation shall have
authority
to issue is: Five Hundred (500) shares of capital stock
without
par value.
79:37 618
6. The name and post office address of each incorporator and
the
number
and class of shares subscribed by such incorporator(s) is
(are):
Number and
Name Address Class of Shares
Ira S. Pimm, Jr. 2225 Land Title Building 1
Philadelphia, PA 19110
IN TESTIMONY WHEREOF, the incorporator(s) has (have) signed
and sealed
these Articles of Incorporation this 5th day of July , 1979.
_________________________(SEAL)
/s/ Ira S. Pimm, Jr
______________________(SEAL)
RECEIVED `79 JUL 9 AM 9:09 DEPARTMENT OF STATE
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
Articles of Incorporation
Domestic Business Corporation
In compliance with the requirements of section 204 of
the Business Corporation Law, act of May 5, 1993 (P. L. 364)
( 15 P. S. S1204) the undersigned, desiring to be
incorporated
as a business corporation, hereby certifies that:
1. The name of the corporation is
ATLAS RESOURCES, INC.
2. The location and post office address of the initial
registered office of the corporation in this Commonwealth is:
311 Rouser Road, Coraopolis, Pennsylvania 15108
3. The corporation is incorporated under the Business
Corporation Law of the Commonwealth of Pennsylvania for the
following purpose or purposes: To engage in and do any law-
ful act concerning any or all lawful business for which
cor-
porations may be incorporated under this act.
4. The term for which the corporation is to exist is
perpetual.
5. The aggregate number of shares which the corporation
shall have authority to issue is: Five Hundred (500)
shares
of capital stock without par value.
6. The name and post office address of each incorporator
and the number and class of shares subscribed by such incor-
porator is:
Name Address Number and
Class of shares
Ira S. Pimm, Jr. 2225 Land Title Building 1
Philadelphia, PA 19110
IN TESTIMONY WHEREOF, the incorporator has signed and
sealed these Articles of Incorporation this 5th day
of
July, 1979.
IRA S. PIMM, JR. (SEAL)
Filed this 9th day of July, 1979.
Commonwealth of Pennsylvania
Department of State
ETHEL D. ALLEN, D.O.
Secretary of the Commonwealth
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:
WHEREAS, Under the provisions of the Business Corpora-
tion Law, approved the 5th day of May, Anno Domini one
thou-
sand nine hundred and thirty - three, P. L. 364, as
amended, the
Department of State is authorized and required to issue a
CERTIFICATE OF INCORPORATION
evidencing the incorporation of a business corporation organ-
ized under the terms of that law.
AND WHEREAS, The stipulations and conditions of that law
have been fully complied with by the persons desiring to
incorporate as ATLAS RESOURCES, INC.
THEREFORE, KNOW YE, That subject to the Constitution of
this Commonwealth and under the authority of the Business
Corporation Law, I do by these presents, which I have
caused
to be sealed with the Great Seal of the Commonwealth,
create,
erect, and incorporate the incorporators of and the
subscribers
to the shares of the proposed corporation named above, their
associates and successors, and also those who may thereafter become
subscribers or holders of the shares of such corpora-
tion, into a body politic and corporate in deed and in law
by the name chosen hereinbefore specified, which shall exist
perpetually and shall be invested with and have and enjoy
all the powers, privileges, and franchises incident to a
business corporation and be subject to all the duties, re-
quirements and restrictions specified and enjoined in and by
the Business Corporation Law and all other applicable laws
of this Commonwealth.
GIVEN under my Hand and the Great Seal
of the Commonwealth, at the City
SEAL OF THE STATE OF of Harrisburg, this 9th day of
PENNSYLVANIA July, in the year of our Lord
one thousand nine hundred and
seventy-nine and of the Common-
wealth the two hundred and
fourth.
ETHEL D. ALLEN, D.O.
Secretary of the Commonwealth
Exhibit 3(b)
ATLAS RESOURCES,INC. BY-LAWS
ARTICLE I - OFFICES
1. Registered Office. The registered office of the
Corporation
shall be located within the Commonwealth of Pennsylvania,
at such place as the Board of Directors shall, from time to
time, determine.
2. Other Offices. The Corporation may also have offices at
such
other places as the Board of Directors may from time to
time, determine.
ARTICLE II - SHAREHOLDERS' MEETINGS
1. Place of Shareholders' Meetings. Meetings of
Shareholders shall
be held at such place within or without the Commonwealth of
Pennsylvania as shall be fixed by the Board of Directors
from time to time. If no such place is fixed by the Board
of Directors, meetings of the Shareholders shall be held at
the registered office of the Corporation. 2. Annual Meeting.
A meeting of the Shareholders of the Corporation shall be
held in each calendar year, commencing with the year 1980,
on the
at o'clock M.,
if not a
legal holiday, and if such day is a legal holiday, then such
meeting shall be held on the next business day.
At such annual meeting, there shall be held an election for
a Board
of Directors to serve for the ensuing year and until their
successors shall be duly elected.
Unless the Board of Directors shall deem it advisable,
financial reports of the Corporation's business need not be
sent to the Shareholders and need not be presented at the
annual meeting. If any report is deemed advisable by the
Board of Directors, such report may contain such information
as the Board of Directors shall determine and need not be
certified by a Certified Public Accountant unless the Board
of Directors shall so direct.
3. Special Meetings. Special meetings of the Shareholders
may be called at any time.
(a) By the President of the Corporation; or
(b) By a majority of the Board of Directors; or
(c) By the holders of not less than one-fifth of all the
shares outstanding and entitled to vote.
Upon the written request of any person entitled to call a
special
meeting, which request shall set forth the purpose for which
the meeting is desired, it shall be the duty of the
Secretary to give notice of such meeting to be held at such
time, not less than ten (10) nor more than sixty (60) days
after the receipt of such request, as the Secretary may fix.
If the Secretary shall neglect or refuse to give such notice
within ten (10) days after receipt of such request, the
person or persons making such request may do so.
4. Notices of Shareholders' Meetings. Except as otherwise
specifically provided by law, at least five days' written
notice shall be given of the annual meeting and any special
meeting of the Shareholders. Such notices shall be given in
the name of the Secretary or the Assistant Secretary.
5. Quorum. The presence, in person or by proxy, of the
holders of a majority of the outstanding shares entitled to
vote shall constitute a quorum. The Shareholders present at
a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum. If a meeting
cannot be organized because of the absence of a quorum,
those present may, except as otherwise provided by law,
adjourn the meeting to such time and place as they may
determine. In the case of any meeting for the election of
Directors, those Shareholders who attend the second
of such adjourned meetings, although less than a quorum as
fixed in this section, shall nevertheless constitute a
quorum for the purpose of electing Directors.
6. Voting. The officer or agent having charge of the
transfer books
of the Corporation shall make, at least five days before any
meeting of Shareholders, a complete list of the Shareholders
entitled to vote at such meeting, arranged in alphabetical
order, with the address of and the number of shares held by
each, which list shall be kept on file at the registered
office of the Corporation and shall be subject to inspection
by any Shareholder at any time during usual business hours.
Such list shall also be produced and kept open at the time
and place of the meeting and shall be subject to the
inspection of any Shareholder during the whole time of the
meeting.
At all Shareholders' meetings, Shareholders entitled to vote
may
attend and vote either in person or by proxy. All proxies
shall be in writing and shall be filed with the Secretary of
the Corporation. No unrevoked proxy shall be valid after
eleven months from the date of execution, unless a longer
time is expressly provided therein; but in no event shall a
proxy, unless coupled with an interest, be valid after three
years after the date of its execution.
Except as otherwise specifically provided by law, all
matters coming before the meeting shall be determined by a
vote by shares. Such vote may be taken by voice unless a
Shareholder demands that it be taken by ballot, in which
event the vote shall be taken by written ballot, and the
Judge or Judges of Election or, if none, the Secretary of
the meeting, shall tabulate and certify the results of such
vote.
7. Informal Action by Shareholders. Any action which may be
taken
at a meeting of the Shareholders may be taken without a
meeting, if a consent in writing, setting forth the action
so taken, shall be signed by all of the Shareholders who
would be entitled to vote at a meeting for such purpose and
shall be filed with the Secretary of the Corporation.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The business and affairs of the Corporation
shall be
managed by a Board of two Directors.
2. Place of Meeting. Meetings of the Board of Directors may
be held
at such place within the Commonwealth of Pennsylvania, or
elsewhere, as a majority of the Directors may from time to
time appoint, or as may be designated in the notice calling
the meeting.
3. Regular Meetings. A regular meeting of the Board of
Directors
shall be held annually, immediately following the annual
meeting of Shareholders at the place where such meeting of
the Shareholders is held or at such other place, date and
hour as a majority of the newly elected Directors may
designate. At such meeting the Board of Directors shall
elect officers of the Corporation. In addition to such
regular meeting, the Board of Directors shall have the power
to fix by resolution the place, date and hour of other
regular meetings of the Board.
4. Special Meetings. Special meetings of the Board of
Directors
shall be held whenever ordered by the President or by a
majority of the Directors in office.
5. Notices of Meetings of Board of Directors.
(a) Regular Meetings. No notice shall be required to be
given
of any regular meeting, unless the same be held at other
than the time or place for holding such meetings as fixed in
accordance with Article III, Paragraph 3 of these By-Laws,
in which event one day's notice shall be given of the time
and place of such meeting.
(b) Special Meetings. At least one days notice shall be
given
of the time when, place where, and purpose for which any
special meeting of the Board of Directors is to be held.
6. Quorum. A majority of the Directors in office shall be
necessary
to constitute a quorum for the transaction of business, and
the acts of a majority of the Directors present at a meeting
at which a quorum is present shall be the acts of the Board
of Directors. If there be less than a quorum present, the
majority of those present may adjourn the
meeting from time to time and place to place and shall cause
notice of each such adjourned meeting to be given to all
absent Directors.
7. Informal Action by the Board of Directors. If all the
Directors shall severally or collectively consent in writing
to any action to be taken by the Corporation, such action
shall be as valid corporate action as though it had been
authorized at a meeting of the Board of Directors. 8.
Powers.
(a) General Powers. The Board of Directors shall have all
the
power and authority granted by law to the Board, including
all powers necessary or appropriate to the management of the
business and affairs of the Corporation.
(b) Specific Powers. Without limiting the general powers
conferred by the last preceding clause and the powers
conferred by the Articles and By-Laws of the Corporation, it
is hereby expressly declared that the Board of Directors
shall have the following powers:
(1) To confer upon any officer or officers of the
Corporation,
the power to choose, remove or suspend assistant
officers, agents or servants.
(2) To appoint any person, firm or corporation to accept
and
hold in trust for the Corporation any property belonging
to the Corporation, or in which it is interested, and to
authorize any such person, firm or corporation to
execute any documents and perform any duties that may be
requisite in relation to any such trust.
(3) To appoint a person or persons to vote shares of another
corporation held and owned by the Corporation.
(4) By resolution adopted by a majority of the whole Board
of Directors, to delegate two or more of its number to
constitute an executive committee which, to the extent
provided in such resolution, shall have and exercise the
authority of the Board of Directors in the management of the
business of the corporation.
(5) To fix the place, time and purpose of meetings of
Shareholders.
(6) To determine who shall be authorized on the
Corporation's
behalf to sign bills, notes, receipts, acceptances,
endorsements, checks, releases, contracts and documents.
9. Compensation of Directors. Compensation of Directors, if
any, shall be as determined from time to time by resolution
of the Board of Directors.
10. Removal of Directors by Shareholders. The entire Board
of
Directors or any individual Director may be removed from
office without assigning any cause by a majority vote of the
holders of the outstanding shares entitled to vote at an
election of Directors. In case the Board of Directors or
any one or more Directors be so removed, new Directors may
be elected at the same time. Unless the entire Board of
Directors be removed, no individual Director shall be
removed in case the votes of a sufficient number of shares
are cast against the resolution for his removal which, if
voted at an election of the full Board of Directors, would
be sufficient to elect one or more Directors.
11. Vacancies. Vacancies in the Board of Directors,
including
vacancies resulting from an increase in the number of
Directors, shall be filled by a majority of the remaining
members of the Board of Directors through less than a
quorum, and each person so elected shall be a Director until
his successor is elected by the Shareholders, who may make
such election at the next annual meeting of the Shareholders
or at any special meeting duly called for that purpose and
held prior thereto.
ARTICLE IV - OFFICERS
1. Election and Office. The Corporation shall have a
President, a Secretary and a Treasurer, who shall be elected
by the Board of Directors. The Board of Directors may elect
as additional officers, a Chairman of the Board of
Directors, one or more Vice-Presidents, and one or more
assistant officers. Any two or more offices may be held by
the same person.
2. Term. The President, the Secretary and the Treasurer
shall each
serve for a term of one year and until their respective
successors are duly elected and qualified, unless removed
from office by the Board of Directors during their
respective tenures. The term of office of any other officer
shall be as specified by the Board of Directors.
3. Powers and Duties of the President. Unless otherwise
determined
by the Board of Directors, the President shall have the
usual duties of an executive officer with general
supervision over and direction of the affairs of the
Corporation. In the exercise of these duties and subject to
the limitations of the laws of the Commonwealth of
Pennsylvania, these By-Laws, and the actions of the Board of
Directors, he may appoint, suspend and discharge employees
and agents, shall preside at all meetings of the
Shareholders at which he shall be present, and unless there
is a Chairman of the Board of Directors, shall preside at
all meetings of the Board of Directors and shall be a member
of all committees. He shall also do and perform such other
duties as from time to time may be assigned to him by the
Board of Directors.
Unless otherwise determined by the Board of Directors, the
President shall have full power and authority on behalf of
the Corporation, to attend and to act and to vote at any
meeting of the Shareholders of any corporation in which the
Corporation may hold stock, and, at any such meeting, shall
possess and may exercise any and all the rights and powers
incident to the ownership of such stock and which, as the
owner thereof, the Corporation might have possessed and
exercised.
4. Powers and Duties of the Secretary. Unless otherwise
determined
by the Board of Directors, the Secretary shall keep the
minutes of all meetings of the Board of Directors,
Shareholders and all committees, in books provided for that
purpose, and shall attend to the giving and serving of all
notices for the Corporation. He shall have charge of the
corporate seal, the stock certificate books, transfer books
and stock ledgers, and such other books and papers as the
Board of Directors may direct. He shall perform all other
duties ordinarily incident to the office of Secretary and
shall have such other powers and perform such other duties
as may be assigned to him by the Board of Directors.
5. Powers and Duties of the Treasurer. Unless otherwise
determined
by the Board of Directors, the Treasurer shall have charge
of all the funds and securities of the Corporation which may
come into his hands. When necessary or proper, unless
otherwise ordered by the Board of Directors, he shall
endorse for collection on behalf of the Corporation, checks,
notes and other obligations, and shall deposit the same to
the credit of the Corporation in such banks or depositories
as the Board of Directors may designate and shall sign all
receipts and vouchers for payments made to the Corporation.
He shall enter regularly, in books of the Corporation to be
kept by him for the purpose, full and accurate account of
all moneys received and paid by him on account of the
Corporation. Whenever required by the Board of Directors,
he shall render a statement of the financial condition of
the Corporation. He shall at all reasonable times exhibit
his books and accounts to any Director of the Corporation,
upon application at the office of the Corporation during
business hours. He shall have such other powers and shall
perform such other duties as may be assigned to him from
time to time by the Board of Directors. He shall give such
bond, if any, for the faithful performance of his duties as
shall be required by the Board of Directors and any such
bond shall remain in the custody of the President.
6. Powers and Duties of the Chairman of the Board of
Directors.
Unless otherwise determined by the Board of Directors, the
Chairman of the Board of Directors, if any, shall preside at
all meetings of Directors and shall serve ex officio as a
member of every committee of the Board of Directors. He
shall have such other powers and perform such further duties
as may be assigned to him by the Board of Directors. 7.
Powers and Duties of Vice-Presidents and Assistant Officers.
Unless otherwise determined by the Board of Directors, each
VicePresident and each assistant officer shall have the
powers and perform the duties of his respective superior
officer. Vice-Presidents and Assistant officers shall have
such rank as shall be designated by the Board of Directors
and each, in the order of rank, shall act for such
superior officer in his absence or upon his disability or
when so directed by such superior officer or by the Board
of Directors. The President shall be the superior officer
of the Vice-Presidents. The Treasurer and Secretary shall
be the superior officers of the Assistant Treasurers and
Assistant Secretaries, respectively.
8. Delegation of Office. The Board of Directors may
delegate the powers or duties of any officer of the
Corporation to any other officer or to any Director from
time to time.
9. Vacancies. The Board of Directors shall have the power
to fill
any vacancies in any office occurring from whatever reason.
ARTICLE V - CAPITAL STOCK
1. Share Certificates. Every share certificate shall be
signed by
the President or a Vice-President and by the Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary and
sealed with the corporate seal, which may be a facsimile,
engraved or printed, but where such certificate is signed by
a transfer agent or by a transfer clerk and a registrar, the
signature of any corporate officer upon such certificate may
be a facsimile, engraved or printed.
2. Transfer of Shares. Transfers of shares shall be made on
the
books of the Corporation only upon surrender of the share
certificate, duly endorsed and otherwise in proper form for
transfer, which certificate shall be cancelled at the time
of the transfer.
3. Determination of Shareholders of Record and Closing
Transfer
Books. The Board of Directors may fix a time, not more than
fifty days prior to the date of any meeting of Shareholders,
or the date fixed for the payment of any divided or
distribution, or the date for the allotment of rights, or
the date when any change or conversion or exchange of shares
will be made or go into effect, as a record date for the
determination of the Shareholders entitled to notice of or
to vote at any such meeting, or entitled to receive payment
of any such dividend or distribution, or to receive any such
allotment of rights, or to exercise the rights in respect to
any such change, conversion or exchange of shares or
otherwise. In such case, only such Shareholders as shall be
Shareholders of record on the date so fixed shall be
entitled to notice of or to vote at such meeting, or to
receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any shares on the
books of the Corporation after any record date fixed as
aforesaid. The Board of Directors may close the books of
the Corporation against transfers of shares during the whole
or any part of such period, and in such case written or
printed notice thereof shall be mailed at least ten (10)
days before the closing thereof to each Shareholder of
record at the address appearing on the records of the
Corporation or supplied by him to the Corporation for the
purpose of notice. While the stock transfer books of the
Corporation are closed, no transfer of shares hall be made
thereon. Unless a record date is fixed by the Board of
Directors for the determination of Shareholders entitled to
receive notice of or vote at, a Shareholders' Meeting,
transferees of shares which are transferred on the books of
the corporation within ten (10) days next preceding the date
of such meeting shall not be entitled to notice of or to
vote at such meeting. The Corporation may treat the
registered owner of each share of stock as the person
exclusively entitled to vote, to receive notifications and
otherwise, to exercise all the rights and powers of the
owner thereof. 4. Lost Share Certificates. Unless waived in
whole or in part by
the Board of Directors from time to time, any person
requesting the issuance of a new certificate in lieu of an
alleged lost, destroyed, mislaid or wrongfully taken
certificate, shall (1) make an affidavit or affirmation of
the facts and circumstances surrounding the same; (2)
advertise such facts to the extent and in such manner as the
Board of Directors may require; (3) give the Corporation a
bond of indemnity in form, and with one or more sureties
satisfactory to the Board, in an amount to be determined by
the Board, whereupon the proper officers may issue a new
certificate.
ARTICLE VI - NOTICES
1. Contents of Notice. Whenever any notice of a meeting is
required
to be given pursuant to these By-Laws or the Articles, or
otherwise, the notice shall specify the place, day and hour
of the meeting and, in the case of a special meeting or
where otherwise required by law, the general nature of the
business to be transacted at such meeting.
2. Method of Notice. All notices shall be given to each
person
entitled thereto, either personally or be sending a copy
thereof through the mail or by telegraph, charges prepaid,
to his address appearing on the books of the Corporation, or
supplied by him to the Corporation for the purpose of
notice. If notice is sent by mail or telegraph, it shall be
deemed to have been given to the person entitled thereto
when deposited in the United States Mail or with the
telegraph office for transmission. If no address for a
Shareholder appears on the books of the Corporation and such
Shareholder has not supplied the Corporation with an address
for the purpose of notice, notice deposited in the United
States Mail addressed to such shareholder, care of General
Delivery in the City in which the Registered Office of the
Corporation is located, shall be sufficient.
3. Waiver of Notice. Whenever any written notice is
required to be given by the Articles or these By-Laws, a
waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of
such notice. Except in the case of a special meeting,
neither the business to be transacted at nor the purpose of
the meeting need be specified in the waiver of notice of
such meeting.
ARTICLE VII - INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER PERSONS.
1. Each Director and each officer and former Directors or
officers,
and any person who may have served, at its request, as a
Director or officer of another corporation in which is owns
shares of capital stock or of which it is a creditor, shall
be indemnified by the Corporation against expenses actually
and necessarily incurred by them in connection with the
defense of any action, suit or proceeding in which they, or
any of them are made parties or a party by reason of being
or having been directors or officers or a Director or
officer of the Corporation or of such other corporation,
except in relations to matters as to which any such Director
or officer or former Director or officer or person shall be
adjudged, in such action, suit, or proceeding, to be liable
for negligence or misconduct in the performance of duty.
Such indemnification shall not be deemed exclusive of any
other rights to which those indemnified may be entitled
under any By-Law, Agreement, vote of Shareholders, or
otherwise.
ARTICLE VIII - FISCAL YEAR
1. The Board of Directors shall have the power by resolution
to fix
the fiscal year of the Corporation. If the Board of
Directors shall fail to do so, the President shall fix the
fiscal year.
ARTICLE IX - AMENDMENTS
1. The Shareholders entitled to vote thereon shall have the
power to alter, amend or repeal these By-Laws, by a
majority of those voting, at any regular or special
meeting, duly convened after notice to the Shareholders of
such purpose. The Board of Directors, by a majority vote
of those voting, shall have the power to alter, amend and
repeal these By-Laws, at any regular or special meeting
duly convened after notice of such purpose, subject always
to the power of the Shareholders to change such action.
Certificate of Limited Partnership
for Atlas-Energy for the Nineties-Public #6 Ltd. ------
- ------------------------------------------------------------
- -----Exhibit 4(a)
Microfilm Number
Filed with the
Department of State on July 01, 1996
Entity Number
Secretary of the Commonwealth
CERTIFICATE OF LIMITED PARTNERSHIP
DSCB:15-8511 (Rev 90)
In compliance with the requirements of 15 Pa.C.S. . 8511
(relating
to certificate of limited partnership), the undersigned,
desiring to form a limited partnership, hereby certifies
that:
1. The name of the limited partnership is: Atlas-
Energy for the Nineties-Public #6 Ltd.
2. The (a) address of this limited partnership's initial
registered office in this Commonwealth or (b) name of its
commercial registered office provider and the county of
venue is:
(a) 311 Rouser Road Moon Township
Pennsylvania 15108
Allegheny
Number and Street
City
State
Zip County
(b)c/o N/A
Name of Commercial Registered Office Provider
County
For a limited partnership represented by a commercial
registered office provider, the county in (b) shall be
deemed the county in which the limited partnership is
located for venue and official publication purposes.
3. The name and business address of each general partner
of the partnership is:
Name Address
Atlas Resources, Inc.
311 Rouser Road, Moon Township, Pennsylvania
15108
4. (Check, and if appropriate complete, one of the
following):
X The formation of the limited partnership shall
be be
effective upon filing this Certificate of Limited
Partnership in the Department of State.
The formation of the limited partnership
shall be effective on: at
Date Hour
IN TESTIMONY WHEREOF, the undersigned general partner(s) of
the limited partnership has (have) executed this Certificate
of Limited Partnership this 22nd day of July, 1996.
Atlas Resources, Inc.
/s/ J.R. O'Mara
(Signature) J.R. O'Mara (Signature)
Release from Shareholders
---------------------------------------
--------------------------------RELEASE
FROM SHAREHOLDERS
- ------------------------------------------------------------
- ------------
Exhibit 4(c)
FIRST AMENDMENT
TO
SHARE ACQUISITION AGREEMENT
THIS FIRST AMENDMENT TO SHARE ACQUISITION AGREEMENT
made and entered into as of this 24 day of November, 1992,
by and between ATLAS ENERGY GROUP, INC. (the
"Company"), an Ohio corporation, and JOSEPH R.
SADOWSKI ("Shareholder").
WITNESSETH THAT:
WHEREAS, the Company and the Shareholder executed
that certain Share Acquisition Agreement dated as
of November 14, 1990 (the "Share Acquisition
Agreement"), providing for the purchase by the
Company of certain shares of common stock of the
Company (the "Common Stock") and the grant of
certain options as set forth in Sections 5.3, 5.4
and 5.5 of the Share Acquisition Agreement (the
"Shareholder Put Options") pursuant to which the
Shareholder may require the Company to buy
additional shares of Common Stock, held by
Shareholder in the future; and
WHEREAS, the Company and the Shareholder believe
the
existence of the Shareholder Put Options impairs
the ability of the Company to raise capital for
the Company's oil and gas drilling operations;
and
WHEREAS, the Company and the Shareholder believe
said oil and gas drilling operations are
necessary for the continued growth of the
Company; and
WHEREAS, the Shareholder will benefit from the
Company's continued growth; and
WHEREAS, the parties hereto desire to amend the
provisions of the Share Acquisition Agreement.
NOW THEREFORE, in consideration of the premises
herein and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Shareholder hereby agrees to unconditionally
waive any and all rights under the
Shareholder Put Options and hereby
acknowledges and agrees that the execution of
this First Amendment will extinguish any and
all rights under said Shareholder Put
Options.
2. Sections 5.3, 5.4 and 5.5 of the Share
Acquisition Agreement are deleted.
3. Sections 5.6, 5.7, 5.8 and 5.9 of the
Share Acquisition Agreement are renumbered
5.3, 5.4, 5.5 and 5.6, respectively.
4. The reference to "First Shareholder
Option" in
Section 5.2 of the Share Acquisition
Agreement is deleted.
5. The reference to "Section 5.7(a)" in
Sections 5.1
and 5.2 of the Share Acquisition Agreement
is amended to read "Section 5.4 (a)".
6. The reference to "Sections 5.3, 5.4 or
5.5" in
newly renumbered Sections 5.3 and 5.4 of the Share
Acquisition Agreement is deleted.
7. The reference to "Section 5.7" in newly
renumbered Section 5.5 of the Share Acquisition
Agreement
is amended to read "Section 5.4".
8. Except as expressly amended hereby, the
provisions of the Share Acquisition Agreement are
hereby affirmed in all respects.
WITNESS the due execution hereof as of the date
first
above written.
ATLAS ENERGY GROUP, INC.
By: /s/ J. R.
O'Mara
J.R. O'Mara,
Executive Vice
President
/s/ Joseph R.
Sadowski Joseph
R. Sadowski
FIRST AMENDMENT
TO
SHARE ACQUISITION AGREEMENT
THIS FIRST AMENDMENT TO SHARE ACQUISITION
AGREEMENT
made and entered into as of this 24 day of
November, 1992, by and between ATLAS ENERGY GROUP,
INC. (the "Company"), an Ohio corporation, and
CHARLES KOVAL ("Shareholder").
WITNESSETH THAT:
WHEREAS, the Company and the Shareholder executed
that certain Share Acquisition Agreement dated as
of November 14, 1990 (the "Share Acquisition
Agreement"), providing for the purchase by the
Company of certain shares of common stock of the
Company (the "Common Stock") and the grant of
certain options as set forth in Sections 5.3, 5.4
and 5.5 of the Share Acquisition Agreement (the
"Shareholder Put Options") pursuant to which the
Shareholder may require the Company to buy
additional shares of Common Stock, held by
Shareholder in the future; and
WHEREAS, the Company and the Shareholder believe
the
existence of the Shareholder Put Options impairs
the ability of the Company to raise capital for
the Company's oil and gas drilling operations;
and
WHEREAS, the Company and the Shareholder believe
said oil and gas drilling operations are
necessary for the continued growth of the
Company; and
WHEREAS, the Shareholder will benefit from the
Company's continued growth; and
WHEREAS, the parties hereto desire to amend the
provisions of the Share Acquisition Agreement.
NOW THEREFORE, in consideration of the premises
herein and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Shareholder hereby agrees to unconditionally
waive any and all rights under the
Shareholder Put Options and hereby
acknowledges and agrees that the execution of
this First Amendment will extinguish any and
all rights under said Shareholder Put
Options.
2. Sections 5.3, 5.4 and 5.5 of the Share
Acquisition Agreement are deleted.
3. Sections 5.6, 5.7, 5.8 and 5.9 of the
Share Acquisition Agreement are renumbered
5.3, 5.4, 5.5 and 5.6, respectively.
4. The reference to "First Shareholder
Option" in
Section 5.2 of the Share Acquisition
Agreement is deleted.
5. The reference to "Section 5.7(a)" in
Sections 5.1
and 5.2 of the Share Acquisition Agreement
is amended to read "Section 5.4 (a)".
6. The reference to "Sections 5.3, 5.4 or
5.5" in
newly renumbered Sections 5.3 and 5.4 of the
Share Acquisition Agreement is deleted.
7. The reference to "Section 5.7" in newly
renumbered Section 5.5 of the Share
Acquisition Agreement is amended to read
"Section 5.4".
8. Except as expressly amended hereby, the
provisions of the Share Acquisition Agreement
are hereby affirmed in all respects.
WITNESS the due execution hereof as of the date first
above written.
ATLAS ENERGY GROUP, INC.
By: /s/ J. R. O'Mara
J.R. O'Mara, Executive
Vice President
/s/ Charles Koval
Charles Koval
CONSENT OF INDEPENDENT AUDITOR
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
The firm, as Independent Certified Public Accountants,
hereby consents to the use of the audit report dated July
11, 1997 on the balance sheet of Atlas-Energy for the
Nineties-Public #6 Ltd. as of July 1, 1997, the audit report
dated November 11, 1996, on the consolidated statements of
financial position for the years ending July 31, 1996 and
1995, of AEG Holdings, Inc. and subsidiaries and the
related consolidated statements of income and cash flows
for the years then ended; and the audit report dated
November 11, 1996, on the audited balance sheets as of July
31, 1996 and 1995 of Atlas Resources, Inc. in the
Registration Statement, and any supplements thereto,
including post-effective amendments, for Atlas-Energy for
the Nineties-Public #6 Ltd. In addition, the firm hereby
consents to all references to it as having prepared such
reports and to the reference to the firm under the caption
"Experts".
McLaughlin & Courson
Certified Public
Accountants
July 16, 1997
Pittsburgh, Pennsylvania
Consent of United Energy Development
Consultants, Inc.
EXHIBIT INDEX
Exhibi Description Page
t No.
1(a) Proposed form of Dealer-Manager
Agreement for
Anthem Securities, Inc.
1(b) Proposed form of Dealer-Manager
Agreement for
Bryan Funding, Inc.
3(a) Articles of Incorporation of Atlas
Resources,
Inc.
3(b) Bylaws of Atlas Resources, Inc.
4(a) Certificate of Limited Partnership for
Atlas-
Energy for the Nineties-
Public #6 Ltd.
4(b) Amended and Restated Certificate and
Agreement
of Limited
Partnership for Atlas-Energy for the
Nineties- Public #6 Ltd.
(See Exhibit (A) to Prospectus)
4(c) Release from Shareholders
5 Opinion of Kunzman & Bollinger, Inc. as
to the
legality of the Units
registered hereby
8 Opinion of Kunzman & Bollinger, Inc. as
to tax
matters
10(a) Escrow Agreement
10(b) Proposed form of Drilling and
Operating
Agreement
(See Exhibit (II) to the Amended and
Restated Certificate and
Agreement of Limited Partnership,
Exhibit (A)
to Prospectus)
24(a) Consent of McLaughlin & Courson
24(b) Consent of United Energy
Development
Consultants, Inc.
24(c) Consent of Kunzman & Bollinger, Inc.
(See
Exhibits 5 and 8)
25 Power of Attorney
Exhibit 1(a) ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS-ENERGY FOR THE NINETIES-
PUBLIC #6 LTD.
Anthem Securities, Inc.
P.O. Box 926
Coraopolis, Pennsylvania 15108-0926
Gentlemen:
The undersigned, Atlas Resources, Inc. ("Atlas"), on
behalf of ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.,
hereby confirms its agreement with you as Dealer-Manager as
follows:
1. Description of Units. Atlas, as Managing General
Partner, has
formed a limited partnership known as Atlas-Energy for the
Nineties-Public #6 Ltd. (the "Partnership"), and will issue and
sell Units of Participation in the Partnership (the "Units")
at a price of $10,000 per Unit. No subscriptions to the
Partnership will be accepted after receipt of the maximum
Partnership Subscription of $8,000,000 (which may be
increased to $10,000,000 in Atlas' discretion) or
December 31, 1997, whichever event occurs first (the
"Offering Termination Date").
2. Representations. Warranties and Agreements of Atlas.
Atlas
represents and warrants to and agrees with you that:
(a) The Units have been or will be registered
with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as
amended (the "Act").
(b) Atlas shall provide to you for delivery to all
offerees and
purchasers and their representatives such information and
documents as Atlas deems appropriate to comply with the Act and
applicable state securities ("blue sky") laws.
(c) The Units when issued will be duly authorized and validly
issued as set forth in the Amended and Restated Certificate
and Agreement of Limited Partnership of the Partnership
("Partnership Agreement") set forth as Exhibit (A) to the
offering circular (the "Prospectus") and subject only to
the rights and obligations set forth in the Partnership
Agreement or imposed by the laws of the state of formation
of the Partnership or of any jurisdiction to the laws of
which the Partnership is subject.
(d) The Partnership was duly formed pursuant to the laws
of the Commonwealth of Pennsylvania and is validly
existing as a limited partnership in good standing under
the laws of Pennsylvania with full power and authority to
own its properties and conduct its business as described in
the Prospectus. The Partnership will be qualified to do
business as a limited partnership or similar entity
offering limited liability in those jurisdictions where
Atlas deems such qualification necessary to assure limited
liability of the limited partners.
(e) The Prospectus, as heretofore or hereafter supplemented or
amended,
does not contain an untrue statement of a material fact or
omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they are made, not misleading.
3. Grant of Authority to the Dealer-Manager. On the basis of
the
representations and warranties herein contained, and subject to
the
terms and conditions herein set forth, Atlas, as Managing
General
Partner of the Partnership, hereby appoints you as the
DealerManager for the Partnership and gives you the exclusive
right to solicit subscriptions for the Units in all
states other than
Minnesota and New Hampshire, on a "best efforts" basis,
subject to the terms and conditions set forth herein. In all
states other than Minnesota and New Hampshire you agree to
use your best efforts to effect such sales and to form and
manage a selling group composed of soliciting broker-dealers
("Selling Agents"), each of which shall be a member of the
National Association of Securities Dealers, Inc. ("NASD"),
pursuant to "Selling Agent Agreements" in substantially the
form attached hereto as Exhibit "B." The Managing General
Partner shall have three business days after the receipt
of an executed Selling Agent Agreement to refuse that
Selling Agent's participation.
4. Compensation and Fees.
(a) As Dealer-Manager you will receive from the Partnership
the
following fees on each Unit sold to investors who are situated
and/or residents in states other than Minnesota and New Hampshire:
a 2.5%
Dealer-Manager fee, a 7.5% Sales Commission, and a .5%
reimbursement of the Selling Agents' bona fide accountable
due diligence expenses based on the amount of the Agreed
Subscription. The 7.5% Sales Commission and the .5%
reimbursement of bona fide accountable due diligence
expenses will be reallowed to the Selling Agents. The 2.5%
Dealer-Manager fee will be reallowed to the wholesalers for
Agreed Subscriptions obtained through such wholesalers'
effort.
(b) Pending receipt and acceptance by Atlas of the minimum
Partnership Subscription ($1,000,000 excluding any optional
subscription by the Managing General Partner and its
Affiliates), all proceeds received by you from the sale of
Units will be held in a separate interest bearing escrow
account as provided in Section 15. Unless at least the
minimum Partnership Subscription of $1,000,000 is received
on or before December 31, 1997, the offering shall be
terminated, in which event no fee shall be payable to you
and all funds advanced by purchasers shall be returned to
them with interest earned. In addition, you shall deliver
a termination letter in the form provided to you by Atlas to
each such subscriber and to each of the offerees previously
solicited by you and the Selling Agents in connection with
the offering of the Units. The fees set forth in Section
4(a), which shall be reallowed by you to the Selling Agents
which made the sale and the wholesalers, will be paid within
five business days after at least the minimum Partnership
Subscription ($1,000,000) has been received and accepted by
Atlas and the subscription proceeds have been released to
Atlas from the escrow account. Thereafter, such fees will be
paid to you and reallowed to the Selling Agents and
wholesalers as described in the previous sentence
approximately every two weeks until the Offering Termination
Date and all of your remaining fees shall be paid by Atlas
no later than 14 business days after the Offering
Termination Date.
5. Covenants of Atlas. Atlas covenants and agrees that:
(a) Atlas will deliver to you ample copies of the Prospectus
and
of all amendments or supplements thereto, heretofore or
hereafter
made, including all exhibits and other
documents included therein.
(b) If any event affecting the Partnership or Atlas
shall occur which in the opinion of Atlas should be
set forth in a supplement to or an amendment of the
Prospectus, Atlas will forthwith at its own expense
prepare and furnish to you a sufficient number of
copies of a supplement or amendment to the Prospectus
so that it, as so supplemented or amended, will
not contain an untrue statement of a material
fact or omit to state any material fact necessary
in order to make the statements therein, in the
light of the circumstances under which they are made,
not misleading.
6. Representations and Warranties of Dealer-Manager.
You, as the
Dealer-Manager, represent and warrant to Atlas that:
(a) You are a corporation duly organized, validly
existing and
in good standing under the laws of the state of your
formation or of any jurisdiction to the laws of
which you are subject, with all requisite power
and authority to enter into this Agreement and to
carry out your obligations hereunder.
(b) This Agreement when accepted and approved
will be duly
authorized, executed and delivered by you and will be
a valid and binding agreement on your part in
accordance with its terms.
(c) The consummation of the transactions
contemplated by this
Agreement and the Prospectus will not result in any
breach of any of the terms or conditions of, or
constitute a default under your Articles of
Incorporation, Bylaws, any indenture, agreement or
other instrument to which you are a party, or
violate any order applicable to you of any court or
any federal or state regulatory body or
administrative agency having jurisdiction over you
or over your affiliates.
(d) You are duly registered pursuant to the
provisions of the
Securities Exchange Act of 1934 (the "Act of 1934")
as a dealer and you are a member in good standing
of the NASD, and are duly registered as a broker-
dealer in such states as you are required to be
registered in order to carry out your obligations
as contemplated by this Agreement and the Prospectus.
You agree to maintain all of the foregoing
registrations in good standing throughout the term
of the offer and sale of the Units and you agree
to comply with all statutes and other
requirements applicable to you as a broker-
dealer pursuant to those registrations.
(e) Pursuant to your appointment as Dealer-Manager,
you shall
use your best efforts to exercise such supervision
and control as you deem necessary and appropriate to
the activities of you and the Selling Agents to
comply with all of the provisions of the Act,
insofar as the Act applies to your and their
activities hereunder, and you and the Selling Agents
shall not engage in any activity which would cause
the offer and/or sale of Units not to comply with
the Act, the Act of 1934 and the applicable rules and
regulations of the Commission, the applicable state
securities laws and regulations, this Agreement and
the NASD Conduct Rules including Rules 2730, 2740,
2420 and 2750, and also including, but not limited
to, Rule 2810(b)(2) and (b)(3) of the NASD
Conduct Rules, which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a
member shall not underwrite or participate
in a public offering of a direct
participation program unless standards
of suitability have been established by
the program for participants therein
and such standards are fully disclosed
in the prospectus and are consistent
with the provisions of subsection (B) of
this section.
(B) In recommending to a participant the
purchase, sale or exchange of an
interest in a direct participation
program, a member or person associated
with a member shall:
(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment objectives,
other investments, financial situation and needs,
and any other information known by the member or
associated person, that:
(a) the participant is or will be in a
financial position appropriate to enable him
to realize to a significant extent the
benefits described in the prospectus,
including the tax benefits where they are a
significant aspect of the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss of
investment and lack of liquidity; and
(c) the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the determination
of suitability was reached as to each
participant.
(C) Notwithstanding the provisions of subsections (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable grounds
to believe, based on information made available to him
by the sponsor through a prospectus or other
materials, that all material facts are adequately and
accurately disclosed and provide a basis for
evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subsection (A) hereof, a member or person
associated with a member shall obtain information on
material facts relating at a minimum to the following,
if relevant in view of the nature of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subsections (A) and (B) hereof, a
member or person associated with a member may rely upon
the results of an inquiry conducted by another member or
members, provided that:
(i) the member or person associated with a member has
reasonable grounds to believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were provided to the
member or person associated with a member with the
consent of the member or members conducting or
directing the inquiry; and
(iii) no member that participated in the inquiry is a
sponsor of the program or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the prospective
participant of all pertinent facts relating to the
liquidity and marketability of the program during the term of
investment.
(f) You and the Selling Agents have received copies of the Prospectus
relating to the Units and you and the Selling Agents have relied only on the
statements contained in such Prospectus and not on any other statements
whatsoever, either written or oral, with respect to the details of the
offering of Units.
(g) You and the Selling Agents agree that you and the Selling Agents
shall not place any advertisement or other solicitation with respect to
the Units (including without limitation any material for use in any
newspaper, magazine, radio or television commercial, telephone
recording, motion picture, or other public media) without the prior
written approval of Atlas, and without the prior written approval of the
form and content thereof by the Commission, the NASD and the securities
authorities of the states where such advertisement or solicitation is to
be circulated. Any such advertisements or solicitations shall be at your
expense.
(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by Atlas, you agree and shall require any Selling Agent
to agree to distribute each such supplement or amendment to the
Prospectus to every person who has previously received a copy of the
Prospectus from you and/or the Selling Agent and you further agree and
shall require any Selling Agent to further agree to include such
supplement or amendment in all future deliveries of any Prospectus.
(i) You agree to advise Atlas in writing of each state in which you and
the Selling Agents propose to offer or sell the Units and you shall not
nor shall you permit any Selling Agent to offer or sell Units in any
state until such time as you shall have been advised in writing by Atlas,
or Atlas' special counsel, that such offer or sale has been qualified in
such state or is exempt from the qualification requirements imposed by
such state or such qualification is otherwise not required.
(j) In connection with any offer or sale of the Units, you agree and
shall require any Selling Agent to agree to comply in all respects with
statements set forth in the Prospectus and the Partnership Agreement and
you agree and shall require any Selling Agent to agree not to make any
statement inconsistent with the statements in the Prospectus or the
Partnership Agreement and you further agree and shall require any Selling
Agent to further agree that you shall not provide and shall require any
Selling Agent not to provide any written information, statements or sales
literature other than the Prospectus, The Atlas Group, Inc.'s corporate
profile and a brochure entitled "Atlas-Energy for the Nineties-Public #6
Ltd." (the corporate profile and the brochure collectively referred to
herein as the "Brochure"), and any supplements or amendments thereto
unless approved in writing by Atlas; and you agree and shall require any
Selling Agent to agree not to make any untrue or misleading statements of
a material fact in connection with the Units.
(k) You agree to use your best efforts in the solicitation and sale of
said Units and to coordinate and supervise the efforts of the Selling
Agents and you shall require any Selling Agent to agree to use its best
efforts in the solicitation and sale of said Units, including insuring
that the prospective purchasers meet the suitability requirements set
forth in the Prospectus and the Subscription Agreement and properly
execute the Subscription Agreement, which has been provided as Exhibit (I
B) to the Partnership Agreement, Exhibit (A) of the Prospectus, together
with any additional forms provided in any supplement or amendment to the
Prospectus, or otherwise provided to you by Atlas to be completed by
prospective purchasers. Executed Subscription Agreements shall be
delivered or mailed immediately to Atlas and must be received by Atlas at
or prior to the Offering Termination Date. Atlas shall have the right to
reject any subscription at any time for any reason without liability to
it. Investor funds shall be transmitted as set forth in Section 16.
(l) Although not anticipated, in the event you assist in any transfers
of the Units, you shall comply, and you shall require any Selling Agent
to comply, with the requirements of Rule 2810(b)(2)(B) and (b)(3)(D) of
the NASD Conduct Rules.
7. State Securities Registration. Incident to the offer and sale of
the Units, Atlas will either use its best efforts in taking all
necessary action and filing all necessary forms and documents deemed
reasonable by it in order to qualify or register Units for sale
under the securities laws of the states requested by you pursuant to
Section 6 (i) hereof or use its best efforts in taking any necessary
action and filing any necessary forms deemed reasonable by it which
are required to obtain an exemption from qualification or
registration in such states; provided Atlas may elect not to qualify
or register Units in any state in which it deems such qualification
or registration is not warranted for any reason in its sole
discretion. Atlas and its counsel will inform you as to the
jurisdictions in which the Partnership Units have been qualified for
sale or are exempt under the respective securities or blue sky laws
of such jurisdictions; but Atlas has not assumed and will not assume
any obligation or responsibility as to your right or any Selling
Agent's right to act as a broker-dealer with respect to the Units in
any such jurisdiction.
Atlas will provide to you and the Selling Agents for delivery to
all offerees and purchasers and their representatives, any
additional information, documents and instruments which Atlas deems
necessary to comply with the rules, regulations and judicial and
administrative interpretations in those states and jurisdictions for
the offer and sale of the Units in such states. Atlas will file all
post-offering forms, documents or materials and take all other
actions required by the states in which the offer and sale of Units
have been qualified or are exempt or in which the Units have been
registered; provided, Atlas shall not be required to take any
actions, make any filings or prepare any documents necessary or
required in connection with your status or any Selling Agent's
status as a broker-dealer under the laws of such states.
Atlas shall promptly provide you with copies of all applications,
filings, correspondence, orders or other documents or instruments
relating to any application for qualification, registration or other
approval under applicable state or Federal securities laws for the
offering.
8. Expense of Sale. The expenses in connection with the offer and
sale of the Units shall be payable as set forth below.
(a) Atlas shall pay all expenses incident to the performance of its
obligations hereunder, including the fees and expenses of Atlas'
attorneys and accountants and all fees and expenses of registering or
qualifying the Units for offer and sale in the states as set forth in
Section 7 hereof, or obtaining exemptions therefrom, even in the event
this offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the formation and management of the
selling group and the fees and expenses of your own counsel and
accountants, even in the event this offering is not successfully
completed.
9. Conditions of Your Duties. Your obligations provided herein shall
be subject to the accuracy, as of the date hereof and at the
applicable closing date (as if made at the applicable closing date),
of the representations and warranties of Atlas herein and to the
performance by Atlas of its obligations hereunder.
10. Condition of Atlas' Duties. Atlas' obligations provided herein,
including the duty to pay compensation as set forth in Section 4
hereof, shall be subject to the accuracy, as of the date hereof and
at the applicable closing date (as if made at the applicable closing
date) of your representations and warranties made herein, and to the
performance by you of your obligations hereunder, and to the
additional condition that Atlas shall have received, at or prior to
the applicable closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to Atlas that you and each Selling Agent are
registered as required by Section 6(d) and that such registrations were,
during the term of the offering and through the applicable closing date,
in full force and effect; and
(c) a certificate from you, dated at the applicable closing date, to
the effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you have
fulfilled all your obligations hereunder.
11. Indemnification.
(a) You and the Selling Agents shall indemnify and hold harmless Atlas,
the Partnership and its attorneys, against any losses, claims, damages or
liabilities, joint or several, to which such parties may become subject,
under the Act, the Act of 1934 or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon your agreements with the Selling Agents or your
breach of any of your duties and obligations, representations, or
warranties under the terms or provisions of this Agreement and you and
the Selling Agents shall reimburse such parties for any legal or other
expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) Atlas shall indemnify and hold you and the Selling Agents harmless
against any losses, claims, damages or liabilities, joint or several, to
which you and the Selling Agents may become subject, under the Act, the
Act of 1934 or otherwise insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon Atlas' breach of any of its duties and obligations,
representations, or warranties under the terms or provisions of this
Agreement and Atlas shall reimburse you and the Selling Agents for any
legal or other expenses reasonably incurred in connection with
investigating or defending such loss, claim, damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same terms
and conditions to, and shall inure to the benefit of, each person, if
any, who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party.
In case any such action shall be brought against such indemnified party,
it shall notify the indemnifying party of the commencement thereof, and
the indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties, and after the
indemnified party shall have received notice from the agreed upon counsel
that the defense under such paragraph has been so assumed, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
12. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of Atlas and you herein
or in certificates delivered pursuant hereto, and the indemnity
agreements contained in Section 11 hereof, shall survive the
delivery, execution and closing hereof, and shall remain operative
and in full force and effect regardless of any investigation made by
or on behalf of you or any person who controls you within the
meaning of the Act, or by Atlas, or any of its officers, directors
or any person who controls Atlas within the meaning of the Act, or
any other indemnified party, and shall survive delivery of the Units
hereunder.
13. Termination. You shall have the right to terminate this
agreement other than the indemnification provisions of Section 11 by
giving notice as hereinafter specified any time at or prior to a
closing date:
(a) if Atlas shall have failed, refused, or been unable at or
prior to the closing date, to perform any of its obligations
hereunder; or
(b) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement other than the
indemnification provisions of Section 11, Atlas shall be promptly
notified by you by telephone, telecopier or telegram, confirmed by
letter.
Atlas may terminate this Agreement other than the indemnification
provisions of Section 11 for any reason by promptly giving notice to
you by telephone, telecopier or telegram, confirmed by letter as
hereinafter specified at or prior to a closing date.
14. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing, and if
sent to you shall be mailed, delivered or telegraphed and confirmed
to you at the address set forth below your signature hereto or if
sent to Atlas or on behalf of the Partnership, at 311 Rouser Road,
Moon Township, Pennsylvania 15108.
15. Format of Checks/Escrow Agent. Pending receipt of the minimum
Partnership Subscription, Atlas and you and the Selling Agents agree
that all subscribers shall be instructed to make their checks,
drafts, or money orders payable solely to "National City Bank of
Pennsylvania, Escrow Agent, Atlas Public #6 Ltd." as agent for the
Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money
order to the Selling Agent not later than the end of the next
business day following its receipt by you and the Selling Agent
shall then return such check, draft, or money order directly to the
subscriber not later than the end of the next business day following
its receipt from you. Checks, drafts, or money orders received by
you or a Selling Agent which conform to the foregoing instructions
shall be transmitted by you pursuant to Section 16 "Transmittal
Procedures," below.
You represent that you have executed the Escrow Agreement and agree
that you are bound by the terms of the Escrow Agreement executed by
you, the Partnership and Atlas, a copy of which is attached hereto
as Exhibit "A".
16. Transmittal Procedures. You and each Selling Agent shall
transmit received investor funds in accordance with the following
procedures. For purposes of the following, the term Selling Agent
shall also include you as Dealer-Manager where you receive
subscriptions from investors.
(a) Pending receipt of the minimum subscription of $1,000,000,
the Selling Agents shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to you, as Dealer-Manager by the
end of the next business day following receipt of the check,
draft, or money order by the Selling Agent. By the end of the
next business day following receipt of the check, draft, or money
order and Subscription Agreement by you as Dealer-Manager, you as
Dealer-Manager shall transmit the check, draft or money order and
a copy of the executed Subscription Agreement to the Escrow
Agent, and the original Subscription Agreement and a copy of the
check, draft or money order to Atlas.
(b) Upon receipt by you as Dealer-Manager of notice from Atlas
that the minimum Partnership Subscription has been received,
Atlas, you and the Selling Agent agree that all subscribers
thereafter may be instructed, in Atlas' sole discretion, to make
their checks, drafts, or money orders payable solely to "Atlas
Public #6 Ltd.". Thereafter, Selling Agents shall promptly, upon
receipt of any and all checks, drafts, and money orders received
from prospective purchasers of Units, transmit same together with
the original Subscription Agreement to you as Dealer-Manager by
the end of the next business day following receipt of the check,
draft, or money order by the Selling Agent. By the end of the
next business day following receipt of the check, draft, or money
order and Subscription Agreement by you as Dealer-Manager, you as
Dealer-Manager shall transmit the check, draft or money order and
the original Subscription Agreement to Atlas.
17. Parties. This Agreement shall inure to the benefit of and be
binding upon you, Atlas, and any respective successors and assigns
and shall also inure to the benefit of the indemnified parties,
their successors and assigns. This Agreement is intended to be and
is for the sole and exclusive benefit of the parties hereto,
including the Partnership, and their respective successors and
assigns, and the indemnified parties and their successors and
assigns, and for the benefit of no other person, and no other person
shall have any legal or equitable right, remedy or claim under or in
respect of this Agreement. No purchaser of any of the Units from you
shall be construed a successor or assign merely by reason of such
purchase
18. Relationship. This Agreement shall not constitute you a partner
of Atlas or the Partnership or any general partner thereof, nor
render Atlas, the Partnership, or the Managing General Partner
thereof liable for any of your obligations except as otherwise
provided herein.
19. Effective Date. This Agreement is made effective between the
parties as of the date accepted by you as indicated by your
signature hereto.
20. Entire Agreement Waiver. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in
writing, and no party shall be liable or bound to the other by any
agreement, except as specifically set forth herein. Any party hereto
may waive, but only in writing, any term, condition, or requirement
under this Agreement which is intended for its own benefit, and
written waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition,
nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or any other provision hereof.
If the foregoing correctly sets forth our understanding please so
indicate in the space provided below for the purpose whereupon this
letter shall constitute a binding agreement between us.
Very truly yours,
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 1997 By:
Date J.R. O'Mara, President
ATTEST:
(SEAL) Secretary
PARTNERSHIP
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
, 1997 By:
Date J.R. O'Mara, President
ATTEST:
(SEAL) Secretary
DEALER-MANAGER
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
, 1997 By:
Date Eric D. Koval, President
ATTEST:
(SEAL) Secretary
EXHIBIT "A"
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the _____ day of
_________, 1997, by and between Atlas Resources, Inc., a Pennsylvania
corporation ("Atlas"), Anthem Securities, Inc., a Pennsylvania
corporation ("Anthem"), Bryan Funding, Inc., a Pennsylvania corporation
("Bryan Funding"), collectively Anthem and Bryan Funding are referred to as
the "Dealer-Manager", Atlas-Energy for the Nineties-Public #6 Ltd., a
Pennsylvania limited partnership (the "Partnership") and National City
Bank of Pennsylvania, Pittsburgh, Pennsylvania, as escrow agent (the
"Escrow Agent").
WITNESSETH:
WHEREAS, Atlas, as Managing General Partner, intends to offer
publicly for sale to qualified investors (the "Investors") up to 1,000
limited partnership interests in the Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in
full upon subscribing ($10,000 per Unit, however, the Managing General
Partner, in its discretion, may accept one-half Unit [$5,000]
subscriptions, with larger subscriptions permitted in $1,000
increments), by check, draft or money order except that the
broker-dealers and Atlas and its officers and directors may purchase
Units net of the Dealer-Manager Fee, the commissions and accountable due
diligence fees set forth below (the "Subscription Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") pursuant to which Anthem
will solicit subscriptions for Units in all states other than Minnesota and
New Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on
a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and pursuant to which Anthem has
been authorized to select certain members in good standing of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
offering of the Units ("Selling Agents"); and
WHEREAS, the Managing General Partner and Bryan Funding have
executed an agreement ("Bryan Funding Dealer-Manager Agreement")
pursuant to which Bryan Funding will solicit subscriptions for Units in the
states of Minnesota and New Hampshire on a "best efforts" "all or none"
basis for $1,000,000 and on a "best efforts" basis for the remaining
Units on behalf of the Managing General Partner and the
Partnership and pursuant to which Bryan Funding has been authorized to
select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the
Units ("Selling Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the Bryan Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer
Manager Agreement", provide for compensation to the Dealer-Manager which
includes, but is not limited to, a 2.5% Dealer-Manager Fee, a 7.5% sales
commission, and reimbursement of the Selling Agents' bona fide
accountable due diligence expenses of .5% per Unit to participate in the
offering of the Units, which compensation will be reallowed to the
Selling Agents and wholesalers; and
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the
receipt and acceptance by Atlas of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General
Partner, its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after
receipt of the maximum Subscription Proceeds of $8,000,000 (which may be
increased to $10,000,000 in Atlas' discretion) or December 31, 1997,
whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer
Manager Agreement, Atlas and the Dealer-Manager desire to have the
Subscription Proceeds deposited with the Escrow Agent and the Escrow
Agent desires to hold the Subscription Proceeds pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Appointment of Escrow Agent. Atlas, the Partnership and the
Dealer-Manager hereby appoint Escrow Agent as the escrow agent to
receive and to hold the Subscription Proceeds deposited with Escrow
Agent by the Dealer-Manager and the Selling Agents pursuant hereto and
Escrow Agent hereby agrees to serve in such capacity during the term and
based upon the provisions hereof.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall
deposit the Subscription Proceeds of each Investor with the Escrow
Agent and shall deliver to the Escrow Agent a copy of the
Subscription Agreement of such Investor. Payment for each
subscription for Units shall be in the form of a check made payable to
"National City Bank of Pennsylvania, Escrow Agent, Atlas Public #6
Ltd." The Escrow Agent shall deliver a receipt to Anthem and Atlas
for each deposit of Subscription Proceeds made pursuant hereto by
Anthem, and to Bryan Funding and Atlas for each deposit of
subscription proceeds made pursuant hereto by Bryan Funding.
3. Investment of Subscription Proceeds. The Subscription Proceeds
shall be deposited in an interest bearing account maintained by the
Escrow Agent entitled "Armada Government Fund." Subscription
Proceeds may be temporarily invested by the Escrow Agent only in
income producing short-term, highly liquid investments secured by the
United States government where there is appropriate safety of
principal, such as U.S. Treasury Bills. The interest earned shall be
added to the Subscription Proceeds and disbursed in accordance with the
provisions of paragraph 4 or 5, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent (a)
receives written notice from an authorized officer of Atlas that at
least the minimum aggregate subscriptions of $1,000,000 have been
received and accepted by Atlas, and (b) determines that Subscription
Proceeds for at least $1,000,000 as determined by Atlas have cleared the
banking system and are good, the Escrow Agent shall promptly release
and distribute to Atlas such escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on such Subscription Proceeds while held
by the Escrow Agent in an escrow account. Any remaining Subscription
Proceeds, plus any interest paid and investment income earned on such
Subscription Proceeds while held by the Escrow Agent in an escrow
account shall be promptly released and distributed to Atlas by the
Escrow Agent as such Subscription Proceeds clear the banking system and
become good.
5. Separate Partnership Account. During the continuation of the
offering after the Partnership is funded with cleared Subscription
Proceeds of at least $1,000,000 and the Escrow Agent receives the notice
described in Paragraph 4 of this Agreement, and prior to the Offering
Termination Date, any additional Subscription Proceeds may be deposited by
the Dealer-Manager directly in a separate Partnership account which shall
not be subject to the terms of this Agreement.
6. Distributions to Subscribers.
(a) In the event that the Partnership will not be funded as
contemplated because less than the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
Atlas by twelve p.m. (noon), local time, on December 31, 1997, or for
any other reason, Atlas shall so notify the Escrow Agent,
whereupon the Escrow Agent promptly shall distribute to each
Investor a refund check made payable to such Investor in an
amount equal to the Subscription Proceeds of such Investor, plus any
interest paid or investment income earned thereon while held
by the Escrow Agent in an escrow account as calculated by Atlas.
(b) In the event that a subscription for Units submitted by an
Investor is rejected by Atlas for any reason after the
Subscription Proceeds relating to such subscription have been
deposited with the Escrow Agent, then Atlas promptly shall notify
the Escrow Agent of such rejection, and the Escrow Agent shall
promptly distribute to such Investor a refund check made payable
to such Investor in an amount equal to the Subscription Proceeds
of such Investor, plus any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow
account as calculated by Atlas.
7. Compensation and Expenses of Escrow Agent. Atlas shall be solely
responsible for and shall pay the compensation of the Escrow Agent
for its services hereunder, as provided in Appendix 1 to this
Agreement and made a part hereof, and the charges, expenses
(including any reasonable attorneys' fees), and other out-of-pocket
expenses incurred by the Escrow Agent in connection with the
administration of the provisions of this Agreement. The Escrow Agent
shall have no lien on the Subscription Proceeds deposited in an
escrow account unless and until the Partnership is funded with
cleared Subscription Proceeds of at least $1,000,000 and the Escrow
Agent receives the notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is hereby
granted, a prior lien upon any property, cash, or assets held
hereunder, with respect to its unpaid compensation and nonreimbursed
expenses, superior to the interests of any other persons or
entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated
to accept any notice, make any delivery, or take any other action
under this Escrow Agreement unless the notice or request or demand
for delivery or other action is in writing and given or made by the
party given the right or charged with the obligation under this
Escrow Agreement to give the notice or to make the request or
demand. In no event shall the Escrow Agent be obligated to accept
any notice, request, or demand from anyone other than Atlas or the
Dealer-Manager.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable
for any damages, or have any obligations other than the duties
prescribed herein in carrying out or executing the purposes and
intent of this Escrow Agreement; provided, however, that nothing
herein contained shall relieve the Escrow Agent from liability
arising out of its own willful misconduct or gross negligence.
Escrow Agent's duties and obligations under this Agreement shall be
entirely administrative and not discretionary. Escrow Agent shall
not be liable to any party hereto or to any third party as a result
of any action or omission taken or made by Escrow Agent in good
faith. The parties to this Agreement will indemnify Escrow Agent,
hold Escrow Agent harmless, and reimburse Escrow Agent from, against
and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) Escrow Agent may suffer or
incur by reason of its execution and performance of this Agreement.
In the event any legal questions arise concerning Escrow Agent's
duties and obligations hereunder, Escrow Agent may consult with its
counsel and rely without liability upon written opinions given to it
by such counsel.
The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, authorization, or other paper or
document which the Escrow Agent, in good faith, believes to be
genuine and what it purports to be.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any
other person, resulting in adverse claims or demands being made in
connection with this Agreement, or in the event that Escrow Agent,
in good faith, shall be in doubt as to what action it should take
hereunder, Escrow Agent may, at its option, refuse to comply with
any claims or demands on it or refuse to take any other action
hereunder, so long as such disagreement continues or such doubt
exists; and in any such event, Escrow Agent shall not be or become
liable in any way or to any person for its failure or refusal to act
and Escrow Agent shall be entitled to continue to so refrain from
acting until the dispute is resolved by the parties involved.
National City Bank of Pennsylvania is acting solely as Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement
or matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the
authority of the individuals executing this Agreement to be so
authorized on behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may
resign as such following the giving of thirty days' prior written
notice to the other parties hereto. Similarly, the Escrow Agent may
be removed and replaced following the giving of thirty days' prior
written notice to the Escrow Agent by the other parties hereto. In
either event, the duties of the Escrow Agent shall terminate thirty
days after the date of such notice (or as of such earlier date as
may be mutually agreeable); and the Escrow Agent shall then deliver
the balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in
an escrow account) in its possession to a successor escrow agent as
shall be appointed by the other parties hereto as evidenced by a
written notice filed with the Escrow Agent. If the other parties
hereto are unable to agree upon a successor or shall have failed to
appoint a successor prior to the expiration of thirty days following
the date of the notice of resignation or removal, the then acting
Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor escrow agent or other appropriate
relief; and any such resulting appointment shall be binding upon all
of the parties hereto. Upon acknowledgment by any successor escrow
agent of the receipt of the then remaining balance of the
Subscription Proceeds (and any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow account),
the then acting Escrow Agent shall be fully released and relieved of
all duties, responsibilities, and obligations under this Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent
shall have no further obligation with respect hereto upon the
occurrence of the distribution of all Subscription Proceeds (and any
interest paid or investment income earned thereon while held by the
Escrow Agent in an escrow account) as contemplated hereby or upon
the written consent of all the parties hereto.
12. Notice. Any notices or instructions, or both, to be given
hereunder shall be validly given if set forth in writing and mailed
by certified mail, return receipt requested, as follows:
If to the Escrow Agent:
National City Bank of Pennsylvania
Attention: Mr. Robert Mialki, Vice President
Corporate Trust Department 300
Fourth Avenue
Pittsburgh, Pennsylvania 15278-2331
Phone: (412) 644-8401
Facsimile: (412) 644-7971
If to Atlas:
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: J. R. O'Mara
Phone: (412) 262-2830
Facsimile: (412) 262-2820
If to Anthem:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Coraopolis, Pennsylvania 15108
Attention: Eric D. Koval
Phone: (412) 262-1680
Facsimile: (412) 262-7430
If to Bryan Funding:
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Attention: Richard G. Bryan, Jr.
Phone: (412) 276-9393
Facsimile: (412) 276-9396
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance herewith.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the
benefit of the undersigned and their respective heirs, successors
and assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
ATTEST: As Escrow Agent
By: By:
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.
ATTEST: A Pennsylvania corporation
By: By:
Secretary J.R. O'Mara, President
ANTHEM SECURITIES, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Eric D. Koval, President
BRYAN FUNDING, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Richard G. Bryan, Jr., President
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By: ATLAS RESOURCES, INC.
ATTEST: Managing General Partner
By: By: ______________________________________
Secretary J. R. O'Mara, President
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
Escrow Agent annual fee per year or any part thereof $3,000.00
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO:
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Gentlemen:
Atlas Resources, Inc. ("Atlas"), is the Managing General Partner in
a Pennsylvania limited partnership named Atlas-Energy for the Nineties-
Public #6 Ltd. (the "Partnership"). The Units of Participation (the
"Units") and the offering are described in the enclosed Prospectus dated
_________, 1997 (the "Prospectus"). Prospectuses relating to the Units
have been furnished to you with this Agreement. Our firm, Anthem
Securities, Inc. (the "Dealer-Manager"), has entered into a Dealer
Manager Agreement for sales in all states other than Minnesota and New
Hampshire, a copy of which has been furnished to you and is incorporated
herein by reference, with the Managing General Partner and the
Partnership under which the Dealer-Manager has agreed to form a group of
National Association of Securities Dealers, Inc. (the "NASD") member
firms (the "Selling Agents"), who will obtain subscriptions to the
Partnership in all states other than Minnesota and New Hampshire on a
"best efforts" basis pursuant to the Securities Act of 1933, as amended
(the "Act"), and the provisions of the Prospectus.
You are invited to become one of the Selling Agents, on a non
exclusive basis, and by your acceptance below you will have agreed to
act in that capacity and to use your best efforts, in accordance with
the following terms and conditions, to solicit such subscriptions in all
states other than Minnesota and New Hampshire. This Agreement shall not
be construed to prohibit your participation as a selling agent in
Minnesota and New Hampshire pursuant to a duly executed selling agent
agreement entered into by you and any other authorized "Dealer-Manager"
for the Partnership.
1. Representations and Warranties of Selling Agent. You, as a
Selling Agent, represent and warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing and
in good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations hereunder.
(b) This Agreement when accepted and approved will be duly
authorized, executed and delivered by you and will be a valid and
binding agreement on your part in accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in any breach of any
of the terms or conditions of, or constitute a default under your
Articles of Incorporation, Bylaws, any indenture, agreement or
other instrument to which you are a party, or violate any order
applicable to you of any court or any federal or state regulatory
body or administrative agency having jurisdiction over you or
over your affiliates.
(d) You are duly registered pursuant to the provisions of the
Securities Exchange Act of 1934 (the "Act of 1934") as a dealer
and you are a member in good standing of the NASD, and are duly
registered as a broker-dealer in such states as you are required
to be registered in order to carry out your obligations as
contemplated by this Agreement and the Prospectus. You agree to
maintain all of the foregoing registrations in good standing
throughout the term of the offer and sale of the Units and you
agree to comply with all statutes and other requirements
applicable to you as a broker-dealer pursuant to those
registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall
comply with all of the provisions of the Act, insofar as the Act
applies to your activities hereunder, and you shall not engage in
any activity which would cause the offer and/or sale of Units not
to comply with the Act, the Act of 1934 and the applicable rules
and regulations of the Securities and Exchange Commission (the
"Commission"), the applicable state securities laws and
regulations, this Agreement and the NASD Conduct Rules including
Rules 2730, 2740, 2420 and 2750, and also including, but not
limited to, Rule 2810(b)(2) and (b)(3) of the NASD Conduct Rules,
which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall
not underwrite or participate in a public offering of
a direct participation program unless standards of
suitability have been established by the program for
participants therein and such standards are fully
disclosed in the prospectus and are consistent with
the provisions of subsection (B) of this section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment objectives,
other investments, financial situation and needs,
and any other information known by the member or
associated person, that:
(a) the participant is or will be in a
financial position appropriate to enable him
to realize to a significant extent the
benefits described in the prospectus,
including the tax benefits where they are a
significant aspect of the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss of
investment and lack of liquidity; and
(c) the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the determination
of suitability was reached as to each
participant.
(C) Notwithstanding the provisions of subsections (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable grounds
to believe, based on information made available to him
by the sponsor through a prospectus or other
materials, that all material facts are adequately and
accurately disclosed and provide a basis for
evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subsection (A) hereof, a member or person
associated with a member shall obtain information on
material facts relating at a minimum to the following,
if relevant in view of the nature of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subsections (A) and (B) hereof, a
member or person associated with a member may rely
upon the results of an inquiry conducted by another
member or members, provided that:
(i) the member or person associated with a member
has reasonable grounds to believe that such
inquiry was conducted with due care;
(ii) the results of the inquiry were provided to
the member or person associated with a member
with the consent of the member or members
conducting or directing the inquiry; and
(iii) no member that participated in the inquiry
is a sponsor of the program or an affiliate of
such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the prospective
participant of all pertinent facts relating to the
liquidity and marketability of the program during the
term of investment.
(f) You have received copies of the Prospectus relating to the Units
and you have relied only on the statements contained in such Prospectus
and not on any other statements whatsoever, either written or oral, with
respect to the details of the offering of Units.
(g) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without limitation any
material for use in any newspaper, magazine, radio or television
commercial, telephone recording, motion picture, or other public media)
without the prior written approval of Atlas, and without the prior
written approval of the form and content thereof by the Commission, the
NASD and the securities authorities of the states where such
advertisement or solicitation is to be circulated. Any such
advertisements or solicitations shall be at your expense.
(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by Atlas or the Dealer-Manager, you agree to distribute
each such supplement or amendment to the Prospectus to every person who
has previously received a copy of the Prospectus from you and you further
agree to include such supplement or amendment in all future deliveries of
any Prospectus.
(i) In connection with any offer or sale of the Units, you agree to
comply in all respects with statements set forth in the Prospectus and
the Partnership Agreement and you agree not to make any statement
inconsistent with the statements in the Prospectus or the Partnership
Agreement and you further agree that you shall not provide any written
information, statements or sales literature other than the Prospectus,
The Atlas Group, Inc.'s corporate profile and a brochure entitled "AtlasEnergy
for the Nineties-Public #6 Ltd." (the corporate profile and the brochure
collectively referred to herein as the "Brochure"), and any supplements or
amendments thereto unless approved in writing by Atlas; and you agree not to
make any untrue or misleading statements of a material fact in connection with
the Units.
(j) You agree to use your best efforts in the solicitation and sale of
said Units, including insuring that the prospective purchasers meet the
suitability requirements set forth in the Prospectus and the Subscription
Agreement and properly execute the Subscription Agreement, which has been
provided as Exhibit (I-B) to the Partnership Agreement, Exhibit (A) to the
Prospectus, together with any additional forms provided in any supplement
or amendment to the Prospectus, or otherwise provided to you by Atlas or
the Dealer-Manager to be completed by prospective purchasers. Atlas shall
have the right to reject any subscription at any time for any reason
without liability to it. Investor funds and executed Subscription
Agreements shall be transmitted as set forth in Section 11.
(k) Although not anticipated, in the event you assist in any transfers
of the Units, you shall comply with the requirements of Sections
(b)(2)(B) and (b)(3)(D) of Rule 2810 of the NASD Conduct Rules.
2. Commissions.
(a) Subject to the receipt of the minimum required Partnership
Subscription of $1,000,000, the Dealer-Manager is entitled to receive
from the Partnership a 7.5% Sales Commission and a .5% reimbursement of
the Selling Agents' bona fide accountable due diligence expenses based on
the aggregate amount of all Unit subscriptions to the Partnership secured
by the Dealer-Manager or the selling group formed by the DealerManager
and accepted by Atlas. Subject to the terms and conditions herein set
forth, including the Dealer-Manager's receipt from you of the
documentation required of you in Section 1 of this Agreement, the DealerManager
agrees to pay you a 7.5% cash commission, and a .5% reimbursement of your
bona fide accountable due diligence expenses, of
subscriptions sold by you and accepted by Atlas, within seven business
days after the Dealer-Manager has received the commissions and
reimbursements on such subscriptions. The Dealer-Manager is entitled to
receive its commissions and reimbursements within five business days
after at least the minimum Partnership Subscription ($1,000,000) has been
received and accepted by Atlas and the subscription proceeds have been
released to Atlas from the escrow account, and approximately every two
weeks thereafter until the Offering Termination Date, which is December
31, 1997, or when the maximum Partnership Subscription of $10,000,000 is
received if earlier. The balance will be paid to the Dealer-Manager
within 14 business days after the Offering Termination Date.
(b) Notwithstanding anything herein to the contrary, you agree to waive
payment of your commissions and reimbursements as set forth above in (a)
until the Dealer-Manager is in receipt of the related amounts owed to it
pursuant to the Dealer-Manager Agreement, and the Dealer-Manager's
liability for such amounts hereunder is limited solely to the proceeds of
the related amounts owed to it pursuant to the Dealer-Manager Agreement.
(c) The Partnership will not commence operations unless subscriptions
for at least $1,000,000 have been secured by December 31, 1997. In the
event this amount is not secured, nothing will be payable to you and all
funds advanced by purchasers will be returned to them with interest
earned, if any.
3. State Securities Registration. Atlas may elect not to qualify or
register Units in any state in which it deems such qualification or
registration is not warranted for any reason in its sole discretion.
Upon application to the Dealer-Manager you will be informed as to
the jurisdictions in which the Units have been qualified for sale or
are exempt under the respective securities or "Blue Sky" laws of
such jurisdictions; but the Dealer-Manager, the Partnership and the
Managing General Partner have not assumed and will not assume any
obligation or responsibility as to your right to act as a broker
dealer with respect to the Units in any such jurisdiction.
4. Expense of Sale. The expenses in connection with the offer and
sale of the Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the
performance of its obligations hereunder, including the fees and
expenses of its attorneys and accountants, even in the event this
offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the fees and expenses of your own
counsel and accountants, even in the event this offering is not
successfully completed.
5. Conditions of Your Duties. Your obligations provided herein, as
of the date hereof and at the applicable closing date, shall be
subject to the performance by the Dealer-Manager of its obligations
hereunder and to the performance by Atlas of its obligations under
the Dealer-Manager Agreement.
6. Conditions of Dealer-Manager's Duties. The Dealer-Manager's
obligations provided herein, including the duty to pay compensation
as set forth in Section 2 hereof, shall be subject to the accuracy,
as of the date hereof and at the applicable closing date (as if made
at the applicable closing date) of your representations and
warranties made herein, and to the performance by you of your
obligations hereunder, and to the additional condition that the
Dealer-Manager shall have received, at or prior to the applicable
closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser ;
(b) certification to the Dealer-Manager that you are registered as
required by Section 1(d) and that such registrations were, during the
term of the offering and through the applicable closing date, in full
force and effect; and
(c) a certificate from you, dated at the applicable closing date, to
the effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you have
fulfilled all your obligations hereunder.
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, Atlas,
the Partnership and its attorneys, against any losses, claims, damages or
liabilities, joint or several, to which such parties may become subject,
under the Act, the Act of 1934 or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon your breach of any of your duties and obligations,
representations, or warranties under the terms or provisions of this
Agreement and you shall reimburse such parties for any legal or other
expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) The Dealer-Manager shall indemnify and hold you harmless against
any losses, claims, damages or liabilities, joint or several, to which
you may become subject, under the Act, the Act of 1934 or otherwise
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon the Dealer-Manager's
breach of any of its duties and obligations, representations, or
warranties under the terms or provisions of this Agreement and the Dealer
Manager shall reimburse you for any legal or other expenses reasonably
incurred in connection with investigating or defending such loss, claim,
damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same terms
and conditions to, and shall inure to the benefit of, each person, if
any, who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party.
In case any such action shall be brought against such indemnified party,
it shall notify the indemnifying party of the commencement thereof, and
the indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties, and after the
indemnified party shall have received notice from the agreed upon counsel
that the defense under such paragraph has been so assumed, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
8. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Dealer-Manager and
you herein or in certificates delivered pursuant hereto, and the
indemnity agreements contained in Section 7 hereof, shall survive
the delivery, execution and closing hereof, and shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of you or any person who controls
you within the meaning of the Act, or by the Dealer-Manager, or any
of its officers, directors or any person who controls the Dealer-
Manager within the meaning of the Act, or any other indemnified
party, and shall survive delivery of the Units hereunder.
9. Termination. You shall have the right to terminate this
Agreement, other than the indemnification provisions of Section 7,
by giving notice as hereinafter specified any time at or prior to a
closing date:
(a) if the Dealer-Manager shall have failed, refused, or been
unable at or prior to the closing date, to perform any of its
obligations hereunder; or
(b) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement, other than the
indemnification provisions of Section 7, the Dealer-Manager shall be
promptly notified by you by telephone, telecopier or telegram,
confirmed by letter.
The Dealer-Manager may terminate this Agreement, other than the
indemnification provisions of Section 7, for any reason and at any
time by promptly giving notice to you by telephone, telecopier or
telegram, confirmed by letter.
10. Format of Checks/Escrow Agent. Pending receipt of the minimum
Partnership Subscription of $1,000,000 (100 Units), the Dealer
Manager and you agree that all subscribers shall be instructed to
make their checks, drafts, or money orders payable solely to
"National City Bank of Pennsylvania, Escrow Agent, Atlas Public #6
Ltd." as agent for the Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money
order directly to the subscriber not later than the end of the next
business day following its receipt from the subscriber. If the
Dealer-Manager receives a check, draft, or money order not
conforming to the foregoing instructions the Dealer-Manager shall
return such check, draft, or money order to you not later than the
end of the next business day following its receipt by the Dealer
Manager and you shall then return such check, draft, or money order
directly to the subscriber not later than the end of the next
business day following its receipt from the Dealer-Manager. Checks,
drafts, or money orders received by you which conform to the
foregoing instructions shall be transmitted by you pursuant to
Section 11 "Transmittal Procedures," below.
You agree that you are bound by the terms of the Escrow Agreement,
a copy of which is attached to the Dealer-Manager Agreement as
Exhibit "A".
11. Transmittal Procedures. You shall transmit received investor
funds in accordance with the following procedures.
(a) Pending receipt of the minimum Partnership Subscription of
$1,000,000, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to the Dealer-Manager by the end
of the next business day following receipt of the check, draft,
or money order by you. By the end of the next business day
following receipt of the check, draft, or money order and
Subscription Agreement by the Dealer-Manager, the Dealer-Manager
shall transmit the check, draft, or money order and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original Subscription Agreement and a copy of the check, draft,
or money order to Atlas.
(b) Upon receipt by you of notice from Atlas or the Dealer
Manager that the minimum Partnership Subscription has been
received, you agree that all subscribers thereafter may be
instructed, in Atlas' sole discretion, to make their checks,
drafts, or money orders payable solely to "Atlas Public #6 Ltd.".
Thereafter, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
Subscription Agreement to the Dealer-Manager by the end of the
next business day following receipt of the check, draft, or money
order by you. By the end of the next business day following
receipt of the check, draft, or money order and subscription
documents by the Dealer-Manager, the Dealer-Manager shall
transmit the check, draft, or money order and the original
Subscription Agreement to Atlas.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon you, the Dealer-Manager, and any respective successors
and assigns and shall also inure to the benefit of the indemnified
parties, their successors and assigns. This Agreement is intended to
be and is for the sole and exclusive benefit of the parties hereto,
and their respective successors and assigns, and the indemnified
parties and their successors and assigns, and for the benefit of no
other person, and no other person shall have any legal or equitable
right, remedy or claim under or in respect of this Agreement. No
purchaser of any of the Units from you shall be construed a
successor or assign merely by reason of such purchase
13. Relationship. You are not authorized to hold yourself out as
agent of the Dealer-Manager, the Managing General Partner, the
Partnership or of any other Selling Agent, nor shall this Agreement
constitute you a partner of the Managing General Partner, the Dealer
Manager, the Partnership or of any other Selling Agent, or render
the Managing General Partner, the Dealer-Manager, the Partnership or
any general partner thereof , or any other Selling Agent liable for
any of your obligations.
14. Effective Date. This Agreement is made effective between the
parties as of the date accepted by you as indicated by your
signature hereto.
15. Entire Agreement, Waiver. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in
writing, and no party shall be liable or bound to the other by any
agreement, except as specifically set forth herein. Any party hereto
may waive, but only in writing, any term, condition, or requirement
under this Agreement which is intended for its own benefit, and
written waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition,
nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or any other provision hereof.
16. Notices. Any communications from you shall be in writing
addressed to the Dealer-Manager at P.O. Box 926, Coraopolis,
Pennsylvania 15108-0926. Any notice from the Dealer-Manager to you
shall be deemed to have been duly given if mailed, faxed or
telegraphed to you at your address shown below.
17. Acceptance. Please confirm your agreement to become a Selling
Agent under the terms and conditions set forth above by signing and
returning the enclosed duplicate copy of this Agreement to us at the
address set forth above.
Sincerely,
, 1997 ANTHEM SECURITIES, INC.
ATTEST:
By:
(SEAL) Secretary Eric D.
Koval, President
ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the
terms and conditions stated in the above Agreement and confirm that all
the statements set forth in the above Agreement are true and correct. We
hereby acknowledge receipt of the Prospectuses and Brochures and a copy
of the Dealer-Manager Agreement referred to above.
, 1997 ,
a(n)
corporation,
ATTEST:
By:
(SEAL) Secretary _____________________________, President
(Address)
WHOLESALER AGREEMENT
(Best Efforts)
ADDENDUM TO SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
1. Addendum and Grant of Authority. The terms and conditions of
this Wholesaler Agreement are in addition to the terms and conditions of
the Selling Agent Agreement entered into between the undersigned
parties hereto. Anthem Securities, Inc., the "Dealer-Manager" for sales in
all states other than Minnesota and New Hampshire, hereby appoints you a
Wholesaler for Atlas-Energy for the Nineties-Public #6 Ltd. (the
"Partnership") in the territory agreed upon by us (the "Territory") and
gives you the non-exclusive right on a best efforts basis to locate
registered broker-dealers that are members in good standing of the
National Association of Securities Dealers, Inc. that will enter into a
Selling Agent Agreement with the Dealer-Manager to effect subscriptions
for the Units.
2. Compensation and Fees. As compensation for services
rendered hereunder, except as otherwise agreed, you shall receive a fee
in an amount equal to 2.5% of each Unit sold by a registered
representative who is located in the Territory and is associated with a
Selling Agent that entered into a Selling Agent Agreement as a result of
your efforts and which subscription is accepted by Atlas Resources, Inc.
("Atlas") as Managing General Partner of the Partnership. The payment
of the foregoing compensation shall be reallowed in its entirety to your
registered representative who actually performs said wholesaling
services and shall only be made if subscriptions for at least the
minimum required Partnership Subscription of $1,000,000 have been
received and accepted by Atlas.
Your fees under this Wholesaler Agreement shall be paid by the
Dealer-Manager no later than seven business days after the Dealer
Manager has received the commissions and fees on such subscriptions.
The Dealer-Manager is entitled to receive its commissions and fees
within five business days after at least the minimum Partnership
Subscription ($1,000,000) has been received and accepted by Atlas and
the subscription proceeds have been released to Atlas from the escrow
account, and approximately every two weeks thereafter until the Offering
Termination Date, which is December 31, 1997, or when the maximum
Partnership Subscription of $10,000,000 is received if earlier. The
balance will be paid to the Dealer-Manager within 14 business days after
the Offering Termination Date.
Compensation paid to you pursuant to this Wholesaler Agreement is
in addition to the compensation paid to you and any other Selling Agent
pursuant to the Selling Agent Agreement.
Notwithstanding anything herein to the contrary, you agree to waive
payment of your commissions and fees as set forth above until the Dealer
Manager is in receipt of the related amounts owed to it pursuant to the
Dealer-Manager Agreement, and the Dealer-Manager's liability for such
amounts hereunder is limited solely to the proceeds of the related
amounts owed to it pursuant to the Dealer-Manager Agreement.
3. Termination of Wholesaler Agreement. Notwithstanding
anything herein to the contrary, the parties agree that this Wholesaler
Agreement may be terminated at any time, with or without cause, by
either party hereto by giving written notice of such termination to the
other party at its address designated in the Selling Agent Agreement.
DEALER-MANAGER
Anthem Securities, Inc.,
a Pennsylvania corporation
_________________________,1997 By:
Date Eric D. Koval, President
WHOLESALER
a___________________
corporation,
_________________________,1997 By:
Date
ATTEST:
__________________________
( S E A L ) Secretary
[Print Name, Title and Address]
Exhibit 1(b)
BRYAN FUNDING, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Gentlemen:
The undersigned, Atlas Resources, Inc. ("Atlas"), on behalf of ATLAS-
ENERGY FOR THE NINETIES-PUBLIC #6 LTD., hereby confirms its agreement
with you as Dealer-Manager as follows:
1. Description of Units. Atlas, as Managing General Partner, has
formed a limited partnership known as Atlas-Energy for the
Nineties-Public #6 Ltd. (the "Partnership"), and will issue and sell Units
of Participation in the Partnership (the "Units") at a price of $10,000
per Unit. No subscriptions to the Partnership will be accepted after
receipt of the maximum Partnership Subscription of $8,000,000 (which may
be increased to $10,000,000 in Atlas' discretion) or December 31,
1997, whichever event occurs first (the "Offering Termination Date").
2. Representations. Warranties and Agreements of Atlas. Atlas
represents and warrants to and agrees with you that:
(a) The Units have been or will be registered with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933
(the "Act"), as amended (the "Act").
(b) Atlas shall provide to you for delivery to all offerees and
purchasers and their representatives such information and documents as
Atlas deems appropriate to comply with the Act and applicable state
securities ("blue sky") laws.
(c) The Units when issued will be duly authorized and validly issued as
set forth in the Amended and Restated Certificate and Agreement of
Limited Partnership of the Partnership ("Partnership Agreement") set
forth as Exhibit (A) to the offering circular (the "Prospectus") and
subject only to the rights and obligations set forth in the Partnership
Agreement or imposed by the laws of the state of formation of the
Partnership or of any jurisdiction to the laws of which the Partnership
is subject.
(d) The Partnership was duly formed pursuant to the laws of the
Commonwealth of Pennsylvania and is validly existing as a limited partnership in
good standing under the laws of Pennsylvania with full power and authority to
own its properties and conduct its business as described in the Prospectus. The
Partnership will be qualified to do business as a limited partnership or similar
entity offering limited liability in those jurisdictions where Atlas deems such
qualification necessary to assure limited liability of the limited partners.
(e) The Prospectus, as heretofore or hereafter supplemented or amended,
does not contain an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading.
3. Grant of Authority to the Dealer-Manager. On the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, Atlas, as Managing General
Partner of the Partnership, hereby appoints you as the Dealer-
Manager for the Partnership and gives you the exclusive right to
solicit subscriptions for the Units in the states of Minnesota and
New Hampshire only, on a "best efforts" basis, subject to the terms
and conditions set forth herein. In the states of Minnesota and New
Hampshire only you agree to use your best efforts to effect such
sales and to form and manage a selling group composed of soliciting
broker-dealers ("Selling Agents"), each of which shall be a member
of the National Association of Securities Dealers, Inc. ("NASD"),
pursuant to "Selling Agent Agreements" in substantially the form
attached hereto as Exhibit "B." The Managing General Partner shall
have three business days after the receipt of an executed Selling
Agent Agreement to refuse that Selling Agent's participation.
4. Compensation and Fees.
(a) As Dealer-Manager you will receive from the Partnership the
following fees on each Unit sold to investors who are situated
and/or residents in the states of Minnesota and New Hampshire: a
2.5% Dealer-Manager fee, a 7.5% Sales Commission and a .5%
reimbursement of the Selling Agents' bona fide accountable due
diligence expenses based on the amount of the Agreed
Subscription. The 7.5% Sales Commission and the .5% reimbursement
of bona fide accountable due diligence expenses will be reallowed
to the Selling Agents. The 2.5% Dealer-Manager fee will be
reallowed to the wholesalers for Agreed Subscriptions obtained
through such wholesalers' effort.
(b) Pending receipt and acceptance by Atlas of the minimum
Partnership Subscription ($1,000,000 excluding any optional
subscription by the Managing General Partner and its Affiliates),
all proceeds received by you from the sale of Units will be held
in a separate interest bearing escrow account as provided in
Section 15. Unless at least the minimum Partnership Subscription
of $1,000,000 is received on or before December 31, 1997, the
offering shall be terminated, in which event no fee shall be
payable to you and all funds advanced by purchasers shall be
returned to them with interest earned. In addition, you shall
deliver a termination letter in the form provided to you by Atlas
to each such subscriber and to each of the offerees previously
solicited by you and the Selling Agents in connection with the
offering of the Units. The fees set forth in Section 4(a), which
shall be reallowed by you to the Selling Agents which made the
sale and the wholesalers, will be paid within five business days
after at least the minimum Partnership Subscription ($1,000,000)
has been received and accepted by Atlas and the subscription
proceeds have been released to Atlas from the escrow account.
Thereafter, such fees will be paid to you and reallowed to the
Selling Agents and wholesalers as described in the previous
sentence approximately every two weeks until the Offering
Termination Date and all of your remaining fees shall be paid by
Atlas no later than 14 business days after the Offering
Termination Date.
5. Covenants of Atlas. Atlas covenants and agrees that:
(a) Atlas will deliver to you ample copies of the Prospectus and
of all amendments or supplements thereto, heretofore or hereafter
made, including all exhibits and other documents included
therein.
(b) If any event affecting the Partnership or Atlas shall occur
which in the opinion of Atlas should be set forth in a supplement
to or an amendment of the Prospectus, Atlas will forthwith at its
own expense prepare and furnish to you a sufficient number of
copies of a supplement or amendment to the Prospectus so that it,
as so supplemented or amended, will not contain an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
6. Representations and Warranties of Dealer-Manager. You, as the
Dealer-Manager, represent and warrant to Atlas that:
(a) You are a corporation duly organized, validly existing and
in good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations hereunder.
(b) This Agreement when accepted and approved will be duly
authorized, executed and delivered by you and will be a valid and
binding agreement on your part in accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in any breach of any
of the terms or conditions of, or constitute a default under your
Articles of Incorporation, Bylaws, any indenture, agreement or
other instrument to which you are a party, or violate any order
applicable to you of any court or any federal or state regulatory
body or administrative agency having jurisdiction over you or
over your affiliates.
(d) You are duly registered pursuant to the provisions of the
Securities Exchange Act of 1934 (the "Act of 1934") as a dealer
and you are a member in good standing of the NASD, and are duly
registered as a broker-dealer in such states as you are required
to be registered in order to carry out your obligations as
contemplated by this Agreement and the Prospectus. You agree to
maintain all of the foregoing registrations in good standing
throughout the term of the offer and sale of the Units and you
agree to comply with all statutes and other requirements
applicable to you as a broker-dealer pursuant to those
registrations.
(e) Pursuant to your appointment as Dealer-Manager, you shall
use your best efforts to exercise such supervision and control as
you deem necessary and appropriate to the activities of you and
the Selling Agents to comply with all of the provisions of the
Act, insofar as the Act applies to your and their activities
hereunder, and you and the Selling Agents shall not engage in any
activity which would cause the offer and/or sale of Units not to
comply with the Act, the Act of 1934 and the applicable rules and
regulations of the Commission, the applicable state securities
laws and regulations, this Agreement and the NASD Conduct Rules
including Rules 2730, 2740, 2420 and 2750, and also including,
but not limited to, Rule 2810(b)(2) and (b)(3) of the NASD
Conduct Rules, which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall
not underwrite or participate in a public offering of
a direct participation program unless standards of
suitability have been established by the program for
participants therein and such standards are fully
disclosed in the prospectus and are consistent with
the provisions of subsection (B) of this section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment objectives,
other investments, financial situation and needs,
and any other information known by the member or
associated person, that:
(a) the participant is or will be in a
financial position appropriate to enable him
to realize to a significant extent the
benefits described in the prospectus,
including the tax benefits where they are a
significant aspect of the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss of
investment and lack of liquidity; and
(c) the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the determination
of suitability was reached as to each
participant.
(C) Notwithstanding the provisions of subsections (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable grounds
to believe, based on information made available to him
by the sponsor through a prospectus or other
materials, that all material facts are adequately and
accurately disclosed and provide a basis for
evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subsection (A) hereof, a member or person
associated with a member shall obtain information on
material facts relating at a minimum to the following,
if relevant in view of the nature of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subsections (A) and (B) hereof, a
member or person associated with a member may rely upon
the results of an inquiry conducted by another member or
members, provided that:
(i) the member or person associated with a member has
reasonable grounds to believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were provided to the
member or person associated with a member with the
consent of the member or members conducting or
directing the inquiry; and
(iii) no member that participated in the inquiry is a
sponsor of the program or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the prospective
participant of all pertinent facts relating to the
liquidity and marketability of the program during the term of
investment.
(f) You and the Selling Agents have received copies of the Prospectus
relating to the Units and you and the Selling Agents have relied only on the
statements contained in such Prospectus and not on any other statements
whatsoever, either written or oral, with respect to the details of the offering
of Units.
(g) You and the Selling Agents agree that you and the Selling Agents
shall not place any advertisement or other solicitation with respect to
the Units (including without limitation any material for use in any
newspaper, magazine, radio or television commercial, telephone
recording, motion picture, or other public media) without the prior
written approval of Atlas, and without the prior written approval of the
form and content thereof by the Commission, the NASD and the securities
authorities of the states where such advertisement or solicitation is to
be circulated. Any such advertisements or solicitations shall be at your
expense.
(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by Atlas, you agree and shall require any Selling Agent
to agree to distribute each such supplement or amendment to the
Prospectus to every person who has previously received a copy of the
Prospectus from you and/or the Selling Agent and you further agree and
shall require any Selling Agent to further agree to include such
supplement or amendment in all future deliveries of any Prospectus.
(i) You agree to advise Atlas in writing of each state in which you and
the Selling Agents propose to offer or sell the Units and you shall not
nor shall you permit any Selling Agent to offer or sell Units in any
state until such time as you shall have been advised in writing by Atlas,
or Atlas' special counsel, that such offer or sale has been qualified in
such state or is exempt from the qualification requirements imposed by
such state or such qualification is otherwise not required.
(j) In connection with any offer or sale of the Units, you agree and
shall require any Selling Agent to agree to comply in all respects with
statements set forth in the Prospectus and the Partnership Agreement and
you agree and shall require any Selling Agent to agree not to make any
statement inconsistent with the statements in the Prospectus or the
Partnership Agreement and you further agree and shall require any Selling
Agent to further agree that you shall not provide and shall require any
Selling Agent not to provide any written information, statements or sales
literature other than the Prospectus, The Atlas Group, Inc.'s corporate
profile and a brochure entitled "Atlas-Energy for the Nineties-Public #6
Ltd." (the corporate profile and the brochure collectively referred to
herein as the "Brochure"), and any supplements or amendments thereto
unless approved in writing by Atlas; and you agree and shall require any
Selling Agent to agree not to make any untrue or misleading statements of
a material fact in connection with the Units.
(k) You agree to use your best efforts in the solicitation and sale of
said Units and to coordinate and supervise the efforts of the Selling
Agents and you shall require any Selling Agent to agree to use its best
efforts in the solicitation and sale of said Units, including insuring
that the prospective purchasers meet the suitability requirements set
forth in the Prospectus and the Subscription Agreement and properly
execute the Subscription Agreement, which has been provided as Exhibit (I
- -
B) to the Partnership Agreement, Exhibit (A) of the Prospectus, together
with any additional forms provided in any supplement or amendment to the
Prospectus, or otherwise provided to you by Atlas to be completed by
prospective purchasers. Executed Subscription Agreements shall be
delivered or mailed immediately to Atlas and must be received by Atlas at
or prior to the Offering Termination Date. Atlas shall have the right to
reject any subscription at any time for any reason without liability to
it. Investor funds shall be transmitted as set forth in Section 16.
(l) Although not anticipated, in the event you assist in any transfers
of the Units, you shall comply, and you shall require any Selling Agent
to comply, with the requirements of Rule 2810(b)(2)(B) and (b)(3)(D) of
the NASD Conduct Rules.
7. State Securities Registration. Incident to the offer and sale of
the Units, Atlas will either use its best efforts in taking all
necessary action and filing all necessary forms and documents deemed
reasonable by it in order to qualify or register Units for sale
under the securities laws of the states requested by you pursuant to
Section 6 (i) hereof or use its best efforts in taking any necessary
action and filing any necessary forms deemed reasonable by it which
are required to obtain an exemption from qualification or
registration in such states; provided Atlas may elect not to qualify
or register Units in any state in which it deems such qualification
or registration is not warranted for any reason in its sole
discretion. Atlas and its counsel will inform you as to the
jurisdictions in which the Partnership Units have been qualified for
sale or are exempt under the respective securities or blue sky laws
of such jurisdictions; but Atlas has not assumed and will not assume
any obligation or responsibility as to your right or any Selling
Agent's right to act as a broker-dealer with respect to the Units in
any such jurisdiction.
Atlas will provide to you and the Selling Agents for delivery to
all offerees and purchasers and their representatives, any
additional information, documents and instruments which Atlas deems
necessary to comply with the rules, regulations and judicial and
administrative interpretations in those states and jurisdictions for
the offer and sale of the Units in such states. Atlas will file all
post-offering forms, documents or materials and take all other
actions required by the states in which the offer and sale of Units
have been qualified or are exempt or in which the Units have been
registered; provided, Atlas shall not be required to take any
actions, make any filings or prepare any documents necessary or
required in connection with your status or any Selling Agent's
status as a broker-dealer under the laws of such states.
Atlas shall promptly provide you with copies of all applications,
filings, correspondence, orders or other documents or instruments
relating to any application for qualification, registration or other
approval under applicable state or Federal securities laws for the
offering.
8. Expense of Sale. The expenses in connection with the offer and
sale of the Units shall be payable as set forth below.
(a) Atlas shall pay all expenses incident to the performance of its
obligations hereunder, including the fees and expenses of Atlas'
attorneys and accountants and all fees and expenses of registering or
qualifying the Units for offer and sale in the states as set forth in
Section 7 hereof, or obtaining exemptions therefrom, even in the event
this offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the formation and management of the
selling group and the fees and expenses of your own counsel and
accountants, even in the event this offering is not successfully
completed.
9. Conditions of Your Duties. Your obligations provided herein shall
be subject to the accuracy, as of the date hereof and at the
applicable closing date (as if made at the applicable closing date),
of the representations and warranties of Atlas herein and to the
performance by Atlas of its obligations hereunder.
10. Condition of Atlas' Duties. Atlas' obligations provided herein,
including the duty to pay compensation as set forth in Section 4
hereof, shall be subject to the accuracy, as of the date hereof and
at the applicable closing date (as if made at the applicable closing
date) of your representations and warranties made herein, and to the
performance by you of your obligations hereunder, and to the
additional condition that Atlas shall have received, at or prior to
the applicable closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser as required by Section 6(e)(x);
(b) certification to Atlas that you and each Selling Agent are
registered as required by Section 6(d) and that such registrations were,
during the term of the offering and through the applicable closing date,
in full force and effect; and
(c) a certificate from you, dated at the applicable closing date, to
the effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you have
fulfilled all your obligations hereunder.
11. Indemnification.
(a) You and the Selling Agents shall indemnify and hold harmless Atlas,
the Partnership and its attorneys, against any losses, claims, damages
or liabilities, joint or several, to which such parties may become
subject, under the Act, the Act of 1934 or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon your agreements with the Selling Agents
or your breach of any of your duties and obligations, representations,
or warranties under the terms or provisions of this Agreement and you
and the Selling Agents shall reimburse such parties for any legal or
other expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) Atlas shall indemnify and hold you and the Selling Agents harmless
against any losses, claims, damages or liabilities, joint or several, to
which you and the Selling Agents may become subject, under the Act, the
Act of 1934 or otherwise insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon Atlas' breach of any of its duties and obligations,
representations, or warranties under the terms or provisions of this
Agreement and Atlas shall reimburse you and the Selling Agents for any
legal or other expenses reasonably incurred in connection with
investigating or defending such loss, claim, damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same terms
and conditions to, and shall inure to the benefit of, each person, if
any, who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party.
In case any such action shall be brought against such indemnified party,
it shall notify the indemnifying party of the commencement thereof, and
the indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties, and after the
indemnified party shall have received notice from the agreed upon counsel
that the defense under such paragraph has been so assumed, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
12. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of Atlas and you herein
or in certificates delivered pursuant hereto, and the indemnity
agreements contained in Section 11 hereof, shall survive the
delivery, execution and closing hereof, and shall remain operative
and in full force and effect regardless of any investigation made by
or on behalf of you or any person who controls you within the
meaning of the Act, or by Atlas, or any of its officers, directors
or any person who controls Atlas within the meaning of the Act, or
any other indemnified party, and shall survive delivery of the Units
hereunder.
13. Termination. You shall have the right to terminate this
agreement other than the indemnification provisions of Section 11 by
giving notice as hereinafter specified any time at or prior to a
closing date:
(a) if Atlas shall have failed, refused, or been unable at or
prior to the closing date, to perform any of its obligations
hereunder; or
(b) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement other than the
indemnification provisions of Section 11, Atlas shall be promptly
notified by you by telephone, telecopier or telegram, confirmed by
letter.
Atlas may terminate this Agreement other than the indemnification
provisions of Section 11 for any reason by promptly giving notice to
you by telephone, telecopier or telegram, confirmed by letter as
hereinafter specified at or prior to a closing date.
14. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing, and if
sent to you shall be mailed, delivered or telegraphed and confirmed
to you at the address set forth below your signature hereto or if
sent to Atlas or on behalf of the Partnership, at 311 Rouser Road,
Moon Township, Pennsylvania 15108.
15. Format of Checks/Escrow Agent. Pending receipt of the minimum
Partnership Subscription, Atlas and you and the Selling Agents agree
that all subscribers shall be instructed to make their checks,
drafts, or money orders payable solely to "National City Bank of
Pennsylvania, Escrow Agent, Atlas Public #6 Ltd." as agent for the
Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money
order to the Selling Agent not later than the end of the next
business day following its receipt by you and the Selling Agent
shall then return such check, draft, or money order directly to the
subscriber not later than the end of the next business day following
its receipt from you. Checks, drafts, or money orders received by
you or a Selling Agent which conform to the foregoing instructions
shall be transmitted by you pursuant to Section 16 "Transmittal
Procedures," below.
You represent that you have executed the Escrow Agreement and agree
that you are bound by the terms of the Escrow Agreement executed by
you, the Partnership and Atlas, a copy of which is attached hereto
as Exhibit "A".
16. Transmittal Procedures. You and each Selling Agent shall
transmit received investor funds in accordance with the following
procedures. For purposes of the following, the term Selling Agent
shall also include you as Dealer-Manager where you receive
subscriptions from investors.
(a) Pending receipt of the minimum subscription of $1,000,000,
the Selling Agents shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to you, as Dealer-Manager by the
end of the next business day following receipt of the check,
draft, or money order by the Selling Agent. By the end of the
next business day following receipt of the check, draft, or money
order and Subscription Agreement by you as Dealer-Manager, you as
Dealer-Manager shall transmit the check, draft or money order and
a copy of the executed Subscription Agreement to the Escrow
Agent, and the original Subscription Agreement and a copy of the
check, draft or money order to Atlas.
(b) Upon receipt by you as Dealer-Manager of notice from Atlas
that the minimum Partnership Subscription has been received,
Atlas, you and the Selling Agent agree that all subscribers
thereafter may be instructed, in Atlas' sole discretion, to make
their checks, drafts, or money orders payable solely to "Atlas
Public #6 Ltd.". Thereafter, Selling Agents shall promptly, upon
receipt of any and all checks, drafts, and money orders received
from prospective purchasers of Units, transmit same together with
the original Subscription Agreement to you as Dealer-Manager by
the end of the next business day following receipt of the check,
draft, or money order by the Selling Agent. By the end of the
next business day following receipt of the check, draft, or money
order and Subscription Agreement by you as Dealer-Manager, you as
Dealer-Manager shall transmit the check, draft or money order and
the original Subscription Agreement to Atlas.
17. Parties. This Agreement shall inure to the benefit of and be
binding upon you, Atlas, and any respective successors and assigns
and shall also inure to the benefit of the indemnified parties,
their successors and assigns. This Agreement is intended to be and
is for the sole and exclusive benefit of the parties hereto,
including the Partnership, and their respective successors and
assigns, and the indemnified parties and their successors and
assigns, and for the benefit of no other person, and no other person
shall have any legal or equitable right, remedy or claim under or in
respect of this Agreement. No purchaser of any of the Units from you
shall be construed a successor or assign merely by reason of such
purchase
18. Relationship. This Agreement shall not constitute you a partner
of Atlas or the Partnership or any general partner thereof, nor
render Atlas, the Partnership, or the Managing General Partner
thereof liable for any of your obligations except as otherwise
provided herein.
19. Effective Date. This Agreement is made effective between the
parties as of the date accepted by you as indicated by your
signature hereto.
20. Entire Agreement Waiver. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in
writing, and no party shall be liable or bound to the other by any
agreement, except as specifically set forth herein. Any party hereto
may waive, but only in writing, any term, condition, or requirement
under this Agreement which is intended for its own benefit, and
written waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition,
nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or any other provision hereof.
If the foregoing correctly sets forth our understanding please so
indicate in the space provided below for the purpose whereupon this
letter shall constitute a binding agreement between us.
Very truly yours,
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 1997 By:
Date J.R. O'Mara, President
ATTEST:
(SEAL) Secretary
PARTNERSHIP
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
, 1997 By:
Date J.R. O'Mara, President
ATTEST:
(SEAL) Secretary
DEALER-MANAGER
BRYAN FUNDING, INC.,
a Pennsylvania corporation
, 1997 By:
Date Richard G. Bryan, Jr., President
ATTEST:
(SEAL) Secretary
EXHIBIT "A"
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the _____ day of
_________, 1997, by and between Atlas Resources, Inc., a Pennsylvania
corporation ("Atlas"), Anthem Securities, Inc., a Pennsylvania
corporation ("Anthem"), Bryan Funding, Inc., a Pennsylvania corporation
("Bryan Funding"), collectively Anthem and Bryan Funding are referred to as
the "Dealer-Manager", Atlas-Energy for the Nineties-Public #6 Ltd., a
Pennsylvania limited partnership (the "Partnership") and National City
Bank of Pennsylvania, Pittsburgh, Pennsylvania, as escrow agent (the
"Escrow Agent").
WITNESSETH:
WHEREAS, Atlas, as Managing General Partner, intends to offer
publicly for sale to qualified investors (the "Investors") up to 1,000
limited partnership interests in the Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in
full upon subscribing ($10,000 per Unit, however, the Managing General
Partner, in its discretion, may accept one-half Unit [$5,000]
subscriptions, with larger subscriptions permitted in $1,000
increments), by check, draft or money order except that the
broker-dealers and Atlas and its officers and directors may purchase
Units net of the Dealer-Manager Fee, the commissions and accountable due
diligence fees set forth below (the "Subscription Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") pursuant to which Anthem
will solicit subscriptions for Units in all states other than Minnesota and
New Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on
a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and pursuant to which Anthem has
been authorized to select certain members in good standing of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
offering of the Units ("Selling Agents"); and
WHEREAS, the Managing General Partner and Bryan Funding have
executed an agreement ("Bryan Funding Dealer-Manager Agreement")
pursuant to which Bryan Funding will solicit subscriptions for Units in the
states of Minnesota and New Hampshire on a "best efforts" "all or none"
basis for $1,000,000 and on a "best efforts" basis for the remaining
Units on behalf of the Managing General Partner and the Partnership
and pursuant to which Bryan Funding has been authorized to
select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the
Units ("Selling Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the Bryan Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer
Manager Agreement", provide for compensation to the Dealer-Manager which
includes, but is not limited to, a 2.5% Dealer-Manager Fee, a 7.5% sales
commission, and reimbursement of the Selling Agents' bona fide
accountable due diligence expenses of .5% per Unit to participate in the
offering of the Units, which compensation will be reallowed to the
Selling Agents and wholesalers; and
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the
receipt and acceptance by Atlas of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General
Partner, its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after
receipt of the maximum Subscription Proceeds of $8,000,000 (which may be
increased to $10,000,000 in Atlas' discretion) or December 31, 1997,
whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer
Manager Agreement, Atlas and the Dealer-Manager desire to have the
Subscription Proceeds deposited with the Escrow Agent and the Escrow
Agent desires to hold the Subscription Proceeds pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Appointment of Escrow Agent. Atlas, the Partnership and the
Dealer-Manager hereby appoint Escrow Agent as the escrow agent to
receive and to hold the Subscription Proceeds deposited with Escrow
Agent by the Dealer-Manager and the Selling Agents pursuant hereto and
Escrow Agent hereby agrees to serve in such capacity during the term and
based upon the provisions hereof.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall
deposit the Subscription Proceeds of each Investor with the Escrow
Agent and shall deliver to the Escrow Agent a copy of the
Subscription Agreement of such Investor. Payment for each
subscription for Units shall be in the form of a check made payable to
"National City Bank of Pennsylvania, Escrow Agent, Atlas Public #6
Ltd." The Escrow Agent shall deliver a receipt to Anthem and Atlas
for each deposit of Subscription Proceeds made pursuant hereto by
Anthem, and to Bryan Funding and Atlas for each deposit of
subscription proceeds made pursuant hereto by Bryan Funding.
3. Investment of Subscription Proceeds. The Subscription Proceeds
shall be deposited in an interest bearing account maintained by the
Escrow Agent entitled "Armada Government Fund." Subscription
Proceeds may be temporarily invested by the Escrow Agent only in
income producing short-term, highly liquid investments secured by the
United States government where there is appropriate safety of
principal, such as U.S. Treasury Bills. The interest earned shall be
added to the Subscription Proceeds and disbursed in accordance with the
provisions of paragraph 4 or 5, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent (a)
receives written notice from an authorized officer of Atlas that at
least the minimum aggregate subscriptions of $1,000,000 have been
received and accepted by Atlas, and (b) determines that Subscription
Proceeds for at least $1,000,000 as determined by Atlas have cleared the
banking system and are good, the Escrow Agent shall promptly release
and distribute to Atlas such escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on such Subscription Proceeds while held
by the Escrow Agent in an escrow account. Any remaining Subscription
Proceeds, plus any interest paid and investment income earned on such
Subscription Proceeds while held by the Escrow Agent in an escrow
account shall be promptly released and distributed to Atlas by the
Escrow Agent as such Subscription Proceeds clear the banking system and
become good.
5. Separate Partnership Account. During the continuation of the
offering after the Partnership is funded with cleared Subscription
Proceeds of at least $1,000,000 and the Escrow Agent receives the notice
described in Paragraph 4 of this Agreement, and prior to the Offering
Termination Date, any additional Subscription Proceeds may be deposited by
the Dealer-Manager directly in a separate Partnership account which shall
not be subject to the terms of this Agreement.
6. Distributions to Subscribers.
(a) In the event that the Partnership will not be funded as
contemplated because less than the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
Atlas by twelve p.m. (noon), local time, on December 31, 1997, or for
any other reason, Atlas shall so notify the Escrow Agent,
whereupon the Escrow Agent promptly shall distribute to each
Investor a refund check made payable to such Investor in an
amount equal to the Subscription Proceeds of such Investor, plus any
interest paid or investment income earned thereon while held
by the Escrow Agent in an escrow account as calculated by Atlas.
(b) In the event that a subscription for Units submitted by an
Investor is rejected by Atlas for any reason after the
Subscription Proceeds relating to such subscription have been
deposited with the Escrow Agent, then Atlas promptly shall notify
the Escrow Agent of such rejection, and the Escrow Agent shall
promptly distribute to such Investor a refund check made payable
to such Investor in an amount equal to the Subscription Proceeds
of such Investor, plus any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow
account as calculated by Atlas.
7. Compensation and Expenses of Escrow Agent. Atlas shall be solely
responsible for and shall pay the compensation of the Escrow Agent
for its services hereunder, as provided in Appendix 1 to this
Agreement and made a part hereof, and the charges, expenses
(including any reasonable attorneys' fees), and other out-of-pocket
expenses incurred by the Escrow Agent in connection with the
administration of the provisions of this Agreement. The Escrow Agent
shall have no lien on the Subscription Proceeds deposited in an
escrow account unless and until the Partnership is funded with
cleared Subscription Proceeds of at least $1,000,000 and the Escrow
Agent receives the notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is hereby
granted, a prior lien upon any property, cash, or assets held
hereunder, with respect to its unpaid compensation and nonreimbursed
expenses, superior to the interests of any other persons or
entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated
to accept any notice, make any delivery, or take any other action
under this Escrow Agreement unless the notice or request or demand
for delivery or other action is in writing and given or made by the
party given the right or charged with the obligation under this
Escrow Agreement to give the notice or to make the request or
demand. In no event shall the Escrow Agent be obligated to accept
any notice, request, or demand from anyone other than Atlas or the
Dealer-Manager.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable
for any damages, or have any obligations other than the duties
prescribed herein in carrying out or executing the purposes and
intent of this Escrow Agreement; provided, however, that nothing
herein contained shall relieve the Escrow Agent from liability
arising out of its own willful misconduct or gross negligence.
Escrow Agent's duties and obligations under this Agreement shall be
entirely administrative and not discretionary. Escrow Agent shall
not be liable to any party hereto or to any third party as a result
of any action or omission taken or made by Escrow Agent in good
faith. The parties to this Agreement will indemnify Escrow Agent,
hold Escrow Agent harmless, and reimburse Escrow Agent from, against
and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) Escrow Agent may suffer or
incur by reason of its execution and performance of this Agreement.
In the event any legal questions arise concerning Escrow Agent's
duties and obligations hereunder, Escrow Agent may consult with its
counsel and rely without liability upon written opinions given to it
by such counsel.
The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, authorization, or other paper or
document which the Escrow Agent, in good faith, believes to be
genuine and what it purports to be.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any
other person, resulting in adverse claims or demands being made in
connection with this Agreement, or in the event that Escrow Agent,
in good faith, shall be in doubt as to what action it should take
hereunder, Escrow Agent may, at its option, refuse to comply with
any claims or demands on it or refuse to take any other action
hereunder, so long as such disagreement continues or such doubt
exists; and in any such event, Escrow Agent shall not be or become
liable in any way or to any person for its failure or refusal to act
and Escrow Agent shall be entitled to continue to so refrain from
acting until the dispute is resolved by the parties involved.
National City Bank of Pennsylvania is acting solely as Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement
or matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the
authority of the individuals executing this Agreement to be so
authorized on behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may
resign as such following the giving of thirty days' prior written
notice to the other parties hereto. Similarly, the Escrow Agent may
be removed and replaced following the giving of thirty days' prior
written notice to the Escrow Agent by the other parties hereto. In
either event, the duties of the Escrow Agent shall terminate thirty
days after the date of such notice (or as of such earlier date as
may be mutually agreeable); and the Escrow Agent shall then deliver
the balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in
an escrow account) in its possession to a successor escrow agent as
shall be appointed by the other parties hereto as evidenced by a
written notice filed with the Escrow Agent. If the other parties
hereto are unable to agree upon a successor or shall have failed to
appoint a successor prior to the expiration of thirty days following
the date of the notice of resignation or removal, the then acting
Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor escrow agent or other appropriate
relief; and any such resulting appointment shall be binding upon all
of the parties hereto. Upon acknowledgment by any successor escrow
agent of the receipt of the then remaining balance of the
Subscription Proceeds (and any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow account),
the then acting Escrow Agent shall be fully released and relieved of
all duties, responsibilities, and obligations under this Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent
shall have no further obligation with respect hereto upon the
occurrence of the distribution of all Subscription Proceeds (and any
interest paid or investment income earned thereon while held by the
Escrow Agent in an escrow account) as contemplated hereby or upon
the written consent of all the parties hereto.
12. Notice. Any notices or instructions, or both, to be given
hereunder shall be validly given if set forth in writing and mailed
by certified mail, return receipt requested, as follows:
If to the Escrow Agent:
National City Bank of Pennsylvania
Attention: Mr. Robert Mialki, Vice President
Corporate Trust Department 300
Fourth Avenue
Pittsburgh, Pennsylvania 15278-2331
Phone: (412) 644-8401
Facsimile: (412) 644-7971
If to Atlas:
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: J. R. O'Mara
Phone: (412) 262-2830
Facsimile: (412) 262-2820
If to Anthem:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Coraopolis, Pennsylvania 15108
Attention: Eric D. Koval
Phone: (412) 262-1680
Facsimile: (412) 262-7430
If to Bryan Funding:
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Attention: Richard G. Bryan, Jr.
Phone: (412) 276-9393
Facsimile: (412) 276-9396
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance herewith.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the
benefit of the undersigned and their respective heirs, successors
and assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
ATTEST: As Escrow Agent
By: By:
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.
ATTEST: A Pennsylvania corporation
By: By:
Secretary J.R. O'Mara, President
ANTHEM SECURITIES, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Eric D. Koval, President
BRYAN FUNDING, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Richard G. Bryan, Jr., President
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By: ATLAS RESOURCES, INC.
ATTEST: Managing General Partner
By: By: ______________________________________
Secretary J. R. O'Mara, President
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
Escrow Agent annual fee per year or any part thereof $3,000.00
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH BRYAN FUNDING, INC.
TO:
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Gentlemen:
Atlas Resources, Inc. ("Atlas"), is the Managing General Partner in
a Pennsylvania limited partnership named Atlas-Energy for the Nineties-
Public #6 Ltd. (the "Partnership"). The Units of Participation (the
"Units") and the offering are described in the enclosed Prospectus dated
__________, 1997 (the "Prospectus"). Prospectuses relating to the Units
have been furnished to you with this Agreement. Our firm, Bryan Funding,
Inc. (the "Dealer-Manager"), has entered into a Dealer-Manager Agreement
for sales in the states of Minnesota and New Hampshire, a copy of which
has been furnished to you and is incorporated herein by reference, with
the Managing General Partner and the Partnership under which the Dealer
Manager has agreed to form a group of National Association of Securities
Dealers, Inc. (the "NASD") member firms (the "Selling Agents"), who will
obtain subscriptions to the Partnership in the states of Minnesota and
New Hampshire on a "best efforts" basis pursuant to the Securities Act
of 1933, as amended (the "Act"), and the provisions of the Prospectus.
You are invited to become one of the Selling Agents, on a non
exclusive basis, and by your acceptance below you will have agreed to
act in that capacity and to use your best efforts, in accordance with
the following terms and conditions, to solicit such subscriptions in the
states of Minnesota and New Hampshire. This Agreement shall not be
construed to prohibit your participation as a selling agent in other
states in addition to Minnesota and New Hampshire pursuant to a duly
executed selling agent agreement entered into by you and any other
authorized "Dealer-Manager" for the Partnership.
1. Representations and Warranties of Selling Agent. You, as a
Selling Agent, represent and warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing and
in good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations hereunder.
(b) This Agreement when accepted and approved will be duly
authorized, executed and delivered by you and will be a valid and
binding agreement on your part in accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in any breach of any
of the terms or conditions of, or constitute a default under your
Articles of Incorporation, Bylaws, any indenture, agreement or
other instrument to which you are a party, or violate any order
applicable to you of any court or any federal or state regulatory
body or administrative agency having jurisdiction over you or
over your affiliates.
(d) You are duly registered pursuant to the provisions of the
Securities Exchange Act of 1934 (the "Act of 1934") as a dealer
and you are a member in good standing of the NASD, and are duly
registered as a broker-dealer in such states as you are required
to be registered in order to carry out your obligations as
contemplated by this Agreement and the Prospectus. You agree to
maintain all of the foregoing registrations in good standing
throughout the term of the offer and sale of the Units and you
agree to comply with all statutes and other requirements
applicable to you as a broker-dealer pursuant to those
registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall
comply with all of the provisions of the Act, insofar as the Act
applies to your activities hereunder, and you shall not engage in
any activity which would cause the offer and/or sale of Units not
to comply with the Act, the Act of 1934 and the applicable rules
and regulations of the Securities and Exchange Commission (the
"Commission"), the applicable state securities laws and
regulations, this Agreement and the NASD Conduct Rules including
Rules 2730, 2740, 2420 and 2750, and also including, but not
limited to, Rule 2810(b)(2) and (b)(3) of the NASD Conduct Rules,
which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall
not underwrite or participate in a public offering of
a direct participation program unless standards of
suitability have been established by the program for
participants therein and such standards are fully
disclosed in the prospectus and are consistent with
the provisions of subsection (B) of this section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment objectives,
other investments, financial situation and needs,
and any other information known by the member or
associated person, that:
(a) the participant is or will be in a
financial position appropriate to enable him
to realize to a significant extent the
benefits described in the prospectus,
including the tax benefits where they are a
significant aspect of the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss of
investment and lack of liquidity; and
(c) the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the determination
of suitability was reached as to each
participant.
(C) Notwithstanding the provisions of subsections (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable grounds
to believe, based on information made available to him
by the sponsor through a prospectus or other
materials, that all material facts are adequately and
accurately disclosed and provide a basis for
evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subsection (A) hereof, a member or person
associated with a member shall obtain information on
material facts relating at a minimum to the following,
if relevant in view of the nature of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subsections (A) and (B) hereof, a
member or person associated with a member may rely
upon the results of an inquiry conducted by another
member or members, provided that:
(i) the member or person associated with a member
has reasonable grounds to believe that such
inquiry was conducted with due care;
(ii) the results of the inquiry were provided to
the member or person associated with a member
with the consent of the member or members
conducting or directing the inquiry; and
(iii) no member that participated in the inquiry
is a sponsor of the program or an affiliate of
such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the prospective
participant of all pertinent facts relating to the
liquidity and marketability of the program during the
term of investment.
(f) You have received copies of the Prospectus relating to the Units
and you have relied only on the statements contained in such Prospectus
and not on any other statements whatsoever, either written or oral, with
respect to the details of the offering of Units.
(g) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without limitation any
material for use in any newspaper, magazine, radio or television
commercial, telephone recording, motion picture, or other public media)
without the prior written approval of Atlas, and without the prior
written approval of the form and content thereof by the Commission, the
NASD and the securities authorities of the states where such
advertisement or solicitation is to be circulated. Any such
advertisements or solicitations shall be at your expense.
(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by Atlas or the Dealer-Manager, you agree to distribute
each such supplement or amendment to the Prospectus to every person who
has previously received a copy of the Prospectus from you and you further
agree to include such supplement or amendment in all future deliveries of
any Prospectus.
(i) In connection with any offer or sale of the Units, you agree to
comply in all respects with statements set forth in the Prospectus and
the Partnership Agreement and you agree not to make any statement
inconsistent with the statements in the Prospectus or the Partnership
Agreement and you further agree that you shall not provide any written
information, statements or sales literature other than the Prospectus,
The Atlas Group, Inc.'s corporate profile and a brochure entitled "AtlasEnergy
for the Nineties-Public #6 Ltd." (the corporate profile and the brochure
collectively referred to herein as the "Brochure"), and any supplements or
amendments thereto unless approved in writing by Atlas; and you agree not to
make any untrue or misleading statements of a material fact in connection with
the Units.
(j) You agree to use your best efforts in the solicitation and sale of
said Units, including insuring that the prospective purchasers meet the
suitability requirements set forth in the Prospectus and the
Subscription Agreement and properly execute the Subscription Agreement,
which has been provided as Exhibit (I-B) to the Partnership Agreement,
Exhibit (A) to the Prospectus, together with any additional forms
provided in any supplement or amendment to the Prospectus, or otherwise
provided to you by Atlas or the Dealer-Manager to be completed by
prospective purchasers. Atlas shall have the right to reject any
subscription at any time for any reason without liability to it.
Investor funds and executed Subscription Agreements shall be transmitted
as set forth in Section 11.
(k) Although not anticipated, in the event you assist in any transfers
of the Units, you shall comply with the requirements of Sections
(b)(2)(B) and (b)(3)(D) of Rule 2810 of the NASD Conduct Rules.
2. Commissions.
(a) Subject to the receipt of the minimum required Partnership
Subscription of $1,000,000, the Dealer-Manager is entitled to receive from the
Partnership a 7.5% Sales Commission and a .5% reimbursement of the Selling
Agents' bona fide accountable due diligence expenses based on the aggregate
amount of all Unit subscriptions to the Partnership secured by the Dealer-
Manager or the selling group formed by the DealerManager and accepted by Atlas.
Subject to the terms and conditions herein set forth, including the Dealer-
Manager's receipt from you of the
documentation required of you in Section 1 of this Agreement, the DealerManager
agrees to pay you a 7.5% cash commission and a .5% reimbursement of your
bona fide accountable due diligence expenses, of
subscriptions sold by you and accepted by Atlas, within seven business
days after the Dealer-Manager has received the commissions and
reimbursements on such subscriptions. The Dealer-Manager is entitled to
receive its commissions and reimbursements within five business days
after at least the minimum Partnership Subscription ($1,000,000) has been
received and accepted by Atlas and the subscription proceeds have been
released to Atlas from the escrow account, and approximately every two
weeks thereafter until the Offering Termination Date, which is December
31, 1997, or when the maximum Partnership Subscription of $10,000,000 is
received if earlier. The balance will be paid to the Dealer-Manager
within 14 business days after the Offering Termination Date.
(b) Notwithstanding anything herein to the contrary, you agree to waive
payment of your commissions and reimbursements as set forth above in (a)
until the Dealer-Manager is in receipt of the related amounts owed to it
pursuant to the Dealer-Manager Agreement, and the Dealer-Manager's
liability for such amounts hereunder is limited solely to the proceeds of
the related amounts owed to it pursuant to the Dealer-Manager Agreement.
(c) The Partnership will not commence operations unless subscriptions
for at least $1,000,000 have been secured by December 31, 1997. In the
event this amount is not secured, nothing will be payable to you and all
funds advanced by purchasers will be returned to them with interest
earned, if any.
3. State Securities Registration. Atlas may elect not to qualify or
register Units in any state in which it deems such qualification or
registration is not warranted for any reason in its sole discretion.
Upon application to the Dealer-Manager you will be informed as to
the jurisdictions in which the Units have been qualified for sale or
are exempt under the respective securities or "Blue Sky" laws of
such jurisdictions; but the Dealer-Manager, the Partnership and the
Managing General Partner have not assumed and will not assume any
obligation or responsibility as to your right to act as a broker
dealer with respect to the Units in any such jurisdiction.
4. Expense of Sale. The expenses in connection with the offer and
sale of the Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the
performance of its obligations hereunder, including the fees and
expenses of its attorneys and accountants, even in the event this
offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the fees and expenses of your own
counsel and accountants, even in the event this offering is not
successfully completed.
5. Conditions of Your Duties. Your obligations provided herein, as
of the date hereof and at the applicable closing date, shall be
subject to the performance by the Dealer-Manager of its obligations
hereunder and to the performance by Atlas of its obligations under
the Dealer-Manager Agreement.
6. Conditions of Dealer-Manager's Duties. The Dealer-Manager's
obligations provided herein, including the duty to pay compensation
as set forth in Section 2 hereof, shall be subject to the accuracy,
as of the date hereof and at the applicable closing date (as if made
at the applicable closing date) of your representations and
warranties made herein, and to the performance by you of your
obligations hereunder, and to the additional condition that the
Dealer-Manager shall have received, at or prior to the applicable
closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to the Dealer-Manager that you are registered as
required by Section 1(d) and that such registrations were, during the
term of the offering and through the applicable closing date, in full
force and effect; and
(c) a certificate from you, dated at the applicable closing date, to
the effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you have
fulfilled all your obligations hereunder.
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, Atlas,
the Partnership and its attorneys, against any losses, claims, damages
or liabilities, joint or several, to which such parties may become
subject, under the Act, the Act of 1934 or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon your breach of any of your duties and
obligations, representations, or warranties under the terms or
provisions of this Agreement and you shall reimburse such parties for
any legal or other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage, liability or
action.
(b) The Dealer-Manager shall indemnify and hold you harmless against
any losses, claims, damages or liabilities, joint or several, to which you may
become subject, under the Act, the Act of 1934 or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon the Dealer-Manager's breach of any of its duties and
obligations, representations, or warranties under the terms or provisions of
this Agreement and the Dealer-Manager shall reimburse you for any legal or other
expenses reasonably incurred in connection with investigating or defending such
loss, claim, damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same terms
and conditions to, and shall inure to the benefit of, each person, if
any, who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party.
In case any such action shall be brought against such indemnified party,
it shall notify the indemnifying party of the commencement thereof, and
the indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties, and after the
indemnified party shall have received notice from the agreed upon counsel
that the defense under such paragraph has been so assumed, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
8. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Dealer-Manager and
you herein or in certificates delivered pursuant hereto, and the
indemnity agreements contained in Section 7 hereof, shall survive
the delivery, execution and closing hereof, and shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of you or any person who controls
you within the meaning of the Act, or by the Dealer-Manager, or any
of its officers, directors or any person who controls the Dealer
Manager within the meaning of the Act, or any other indemnified
party, and shall survive delivery of the Units hereunder.
9. Termination. You shall have the right to terminate this
Agreement, other than the indemnification provisions of Section 7,
by giving notice as hereinafter specified any time at or prior to a
closing date:
(a) if the Dealer-Manager shall have failed, refused, or been
unable at or prior to the closing date, to perform any of its
obligations hereunder; or
(b) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement, other than the
indemnification provisions of Section 7, the Dealer-Manager shall be
promptly notified by you by telephone, telecopier or telegram,
confirmed by letter.
The Dealer-Manager may terminate this Agreement, other than the
indemnification provisions of Section 7, for any reason and at any
time by promptly giving notice to you by telephone, telecopier or
telegram, confirmed by letter.
10. Format of Checks/Escrow Agent. Pending receipt of the minimum
Partnership Subscription of $1,000,000 (100 Units), the Dealer
Manager and you agree that all subscribers shall be instructed to
make their checks, drafts, or money orders payable solely to
"National City Bank of Pennsylvania, Escrow Agent, Atlas Public #6
Ltd." as agent for the Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money
order directly to the subscriber not later than the end of the next
business day following its receipt from the subscriber. If the
Dealer-Manager receives a check, draft, or money order not
conforming to the foregoing instructions the Dealer-Manager shall
return such check, draft, or money order to you not later than the
end of the next business day following its receipt by the Dealer
Manager and you shall then return such check, draft, or money order
directly to the subscriber not later than the end of the next
business day following its receipt from the Dealer-Manager. Checks,
drafts, or money orders received by you which conform to the
foregoing instructions shall be transmitted by you pursuant to
Section 11 "Transmittal Procedures," below.
You agree that you are bound by the terms of the Escrow Agreement,
a copy of which is attached to the Dealer-Manager Agreement as
Exhibit "A".
11. Transmittal Procedures. You shall transmit received investor
funds in accordance with the following procedures.
(a) Pending receipt of the minimum Partnership Subscription of
$1,000,000, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to the Dealer-Manager by the end
of the next business day following receipt of the check, draft,
or money order by you. By the end of the next business day
following receipt of the check, draft, or money order and
Subscription Agreement by the Dealer-Manager, the Dealer-Manager
shall transmit the check, draft, or money order and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original Subscription Agreement and a copy of the check, draft,
or money order to Atlas.
(b) Upon receipt by you of notice from Atlas or the Dealer
Manager that the minimum Partnership Subscription has been
received, you agree that all subscribers thereafter may be
instructed, in Atlas' sole discretion, to make their checks,
drafts, or money orders payable solely to "Atlas Public #6 Ltd.".
Thereafter, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
Subscription Agreement to the Dealer-Manager by the end of the
next business day following receipt of the check, draft, or money
order by you. By the end of the next business day following
receipt of the check, draft, or money order and subscription
documents by the Dealer-Manager, the Dealer-Manager shall
transmit the check, draft, or money order and the original
Subscription Agreement to Atlas.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon you, the Dealer-Manager, and any respective successors
and assigns and shall also inure to the benefit of the indemnified
parties, their successors and assigns. This Agreement is intended to
be and is for the sole and exclusive benefit of the parties hereto,
and their respective successors and assigns, and the indemnified
parties and their successors and assigns, and for the benefit of no
other person, and no other person shall have any legal or equitable
right, remedy or claim under or in respect of this Agreement. No
purchaser of any of the Units from you shall be construed a
successor or assign merely by reason of such purchase
13. Relationship. You are not authorized to hold yourself out as
agent of the Dealer-Manager, the Managing General Partner, the
Partnership or of any other Selling Agent, nor shall this Agreement
constitute you a partner of the Managing General Partner, the Dealer
Manager, the Partnership or of any other Selling Agent, or render
the Managing General Partner, the Dealer-Manager, the Partnership or
any general partner thereof , or any other Selling Agent liable for
any of your obligations.
14. Effective Date. This Agreement is made effective between the
parties as of the date accepted by you as indicated by your
signature hereto.
15. Entire Agreement, Waiver. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in
writing, and no party shall be liable or bound to the other by any
agreement, except as specifically set forth herein. Any party hereto
may waive, but only in writing, any term, condition, or requirement
under this Agreement which is intended for its own benefit, and
written waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition,
nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or any other provision hereof.
16. Notices. Any communications from you shall be in writing
addressed to the Dealer-Manager at P.O. Box 926, Coraopolis,
Pennsylvania 15108-0926. Any notice from the Dealer-Manager to you
shall be deemed to have been duly given if mailed, faxed or
telegraphed to you at your address shown below.
17. Acceptance. Please confirm your agreement to become a Selling
Agent under the terms and conditions set forth above by signing and
returning the enclosed duplicate copy of this Agreement to us at the
address set forth above.
Sincerely,
, 1997 BRYAN FUNDING, INC.
ATTEST:
By:
(SEAL) Secretary Richard
G. Bryan, Jr., President
ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the
terms and conditions stated in the above Agreement and confirm that all
the statements set forth in the above Agreement are true and correct. We
hereby acknowledge receipt of the Prospectuses and Brochures and a copy
of the Dealer-Manager Agreement referred to above.
, 1997 ,
a(n)
corporation,
ATTEST:
By:
(SEAL) Secretary _____________________________, President
(Address)
WHOLESALER AGREEMENT
(Best Efforts)
ADDENDUM TO SELLING AGENT AGREEMENT
WITH BRYAN FUNDING, INC.
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
1. Addendum and Grant of Authority. The terms and conditions
of this Wholesaler Agreement are in addition to the terms and conditions
of the Selling Agent Agreement entered into between the undersigned
parties hereto. Bryan Funding, Inc., the "Dealer-Manager", for sales in
the states of Minnesota and New Hampshire hereby appoints you a
Wholesaler for Atlas-Energy for the Nineties-Public #6 Ltd. (the
"Partnership") in the territory agreed upon by us (the "Territory") and
gives you the non-exclusive right on a best efforts basis to locate
registered broker-dealers that are members in good standing of the
National Association of Securities Dealers, Inc. that will enter into a
Selling Agent Agreement with the Dealer-Manager to effect subscriptions
for the Units.
2. Compensation and Fees. As compensation for services
rendered hereunder, except as otherwise agreed, you shall receive a fee
in an amount equal to 2.5% of each Unit sold by a registered
representative who is located in the Territory and is associated with a
Selling Agent that entered into a Selling Agent Agreement as a result of
your efforts and which subscription is accepted by Atlas Resources, Inc.
("Atlas") as Managing General Partner of the Partnership. The payment
of the foregoing compensation shall be reallowed in its entirety to your
registered representative who actually performs said wholesaling
services and shall only be made if subscriptions for at least the
minimum required Partnership Subscription of $1,000,000 have been
received and accepted by Atlas.
Your fees under this Wholesaler Agreement shall be paid by the
Dealer-Manager no later than seven business days after the Dealer
Manager has received the commissions and fees on such subscriptions.
The Dealer-Manager is entitled to receive its commissions and fees
within five business days after at least the minimum Partnership
Subscription ($1,000,000) has been received and accepted by Atlas and
the subscription proceeds have been released to Atlas from the escrow
account, and approximately every two weeks thereafter until the Offering
Termination Date, which is December 31, 1997, or when the maximum
Partnership Subscription of $10,000,000 is received if earlier. The
balance will be paid to the Dealer-Manager within 14 business days after
the Offering Termination Date.
Compensation paid to you pursuant to this Wholesaler Agreement is
in addition to the compensation paid to you and any other Selling Agent
pursuant to the Selling Agent Agreement.
Notwithstanding anything herein to the contrary, you agree to waive
payment of your commissions and fees as set forth above until the Dealer
Manager is in receipt of the related amounts owed to it pursuant to the
Dealer-Manager Agreement, and the Dealer-Manager's liability for such
amounts hereunder is limited solely to the proceeds of the related
amounts owed to it pursuant to the Dealer-Manager Agreement.
3. Termination of Wholesaler Agreement. Notwithstanding
anything herein to the contrary, the parties agree that this Wholesaler
Agreement may be terminated at any time, with or without cause, by
either party hereto by giving written notice of such termination to the
other party at its address designated in the Selling Agent Agreement.
DEALER-MANAGER
Bryan Funding, Inc.,
a Pennsylvania corporation
_________________________,1997 By:
Date Richard G. Bryan, Jr., President
WHOLESALER
a___________________
corporation,
_________________________,1997 By:
Date
ATTEST:
__________________________
( S E A L ) Secretary
[Print Name, Title and Address]
Exhibit 5
July 21, 1997
Atlas Resources, Inc.
311 Rouser Road
Moon Township, Pennsylvania 15108
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Gentlemen:
You have requested our opinion on certain issues pertaining to Atlas
Energy for the Nineties-Public #6 Ltd. (the "Partnership") formed under
the Limited Partnership Laws of Pennsylvania. Atlas Resources, Inc.
("Atlas"), a Pennsylvania corporation, is the Managing General Partner
of the Partnership.
Basis of Opinion
Our opinion is based on our review of a certain Registration
Statement on Form SB-2 and any amendments thereto, including any post
effective amendments, for the Partnership (the "Registration Statement")
as filed with the Securities and Exchange Commission (the "Commission"),
including the Certificate of Limited Partnership for the Partnership,
the Prospectus and the Amended and Restated Certificate and Agreement of
Limited Partnership for the Partnership (the "Partnership Agreement"),
the Subscription Agreement and the Drilling and Operating Agreement
contained therein, and on our review of such other documents and records
as we have deemed necessary to review for purposes of rendering our
opinion. As to various questions of fact material to our opinion which
we have not independently verified, we have relied on certain
representations made to us by officers and directors of Atlas.
In rendering the opinion herein provided, we have assumed the due
authorization, execution and delivery of all relevant documents by all
parties thereto.
Opinion
Based upon the foregoing, we are of the opinion that:
The Units, when sold in accordance with the Registration Statement
as amended at the time it becomes effective
with the Commission, will be legally issued pursuant to
Pennsylvania partnership law, fully paid and
nonassessable except as described in the Registration
Statement with respect to the Investor General Partner Units.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm in the
Prospectus included in the Registration Statement.
Yours very truly,
KUNZMAN & BOLLINGER, INC. Kunzman
& Bollinger, Inc.
ATTORNEYS-AT-LAW
5100 N. BROOKLINE, SUITE 600
OKLAHOMA CITY, OKLAHOMA 73112
Telephone (405) 942-3501
Fax (405) 942-3527
Exhibit 8
July 21, 1997
Atlas Resources, Inc.
311 Rouser Road
Moon Township, Pennsylvania 15108
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Gentlemen:
You have requested our opinions on the material federal income tax
issues pertaining to Atlas-Energy for the Nineties-Public #6 Ltd. (the
"Partnership"), a limited partnership formed under the Revised Uniform
Limited Partnership Act of Pennsylvania. We have acted as Special
Counsel to the Partnership with respect to the offering of interests in
the Partnership. Atlas Resources, Inc. ("Atlas") will be the Managing
General Partner of the Partnership. Terms used and not otherwise defined
herein have the respective meanings assigned to them in the Prospectus
under the caption "DEFINITIONS."
Basis of Opinion
Our opinions are based upon our review of: (1) a certain Registration
Statement on Form SB-2 for Atlas-Energy for the Nineties-Public #6 Ltd.,
as originally filed with the United States Securities and Exchange
Commission, and amendments thereto, including the Prospectus, the
Drilling and Operating Agreement and the Amended and Restated
Certificate and Agreement of Limited Partnership for the Partnership
(the "Partnership Agreement") included as exhibits to the Prospectus;
and (2) such corporate records, certificates, agreements, instruments
and other documents as we have deemed relevant and necessary to review
as a basis for the opinions herein provided.
Our opinions also are based upon our interpretation of existing
statutes, rulings and regulations, as presently interpreted by judicial
and administrative bodies. Such statutes, rulings, regulations and
interpretations are subject to change; and such changes could result in
different tax consequences than those set forth herein and could render
our opinions inapplicable.
In rendering our opinions, we have obtained from you certain
representations with respect to the Partnership. Any material inaccuracy
in such representations may render our opinions inapplicable. Included
among such representations are the following:
(1) The Partnership Agreement to be entered into by and
among Atlas, as Managing General Partner, and the
Participants will be duly executed by all parties
thereto. The Partnership Agreement will be duly recorded
in all places required under the Revised Uniform Limited
Partnership Act of Pennsylvania for the due formation of
the Partnership and for the continuation thereof in
accordance with the terms of the Partnership Agreement.
The Partnership will at all times be operated in
accordance with the terms of the Partnership Agreement,
the Prospectus, and the Revised Uniform Limited
Partnership Act of Pennsylvania.
(2) No election will be made by the Partnership or any
Partner for the Partnership to be excluded from the
application of the provisions of Subchapter K of the
Code or classified as a corporation for tax purposes.
(3) The Partnership will own record or legal title to the Working
Interest in all of its Prospects.
(4) The respective amounts that will be paid to Atlas or its Affiliates
pursuant to the Partnership Agreement and the Drilling and Operating
Agreement are amounts that would ordinarily be paid for similar services
in similar transactions between Persons having no affiliation and
dealing with each other "at arms' length."
(5) The Partnership will elect to deduct currently all intangible
drilling and development costs.
(6) The Partnership will have a calendar year taxable year.
(7) The Drilling and Operating Agreement and any amendments thereto
entered into by and between Atlas and the Partnership will be duly
executed and will govern the drilling and, if warranted, the completion
and operation of the wells in accordance with its terms.
(8) Based upon Atlas' review of its previous drilling programs for the
past several years and upon the intended operations of the Partnership,
Atlas reasonably believes that the aggregate deductions, including
depletion deductions, and 350% of the aggregate credits, if any, which
will be claimed by Atlas and the Participants, will not during the first
five tax years following the funding of the Partnership exceed twice the
amounts invested by Atlas and the Participants, respectively.
(9) The Investor General Partner Units will not be converted to Limited
Partner interests before substantially all of the Partnership Wells have
been drilled and completed.
(10) The Units will not be traded on an established securities
market.
In rendering our opinions we have further assumed that (1) each of
the Participants has an objective to carry on the business of the
Partnership for profit; (2) any amount borrowed by a Participant and
contributed to the Partnership will not be borrowed from a Person who
has an interest in the Partnership (other than as a creditor) or a
related person, as defined in 465 of the Code, to a person (other than
the Participant) having such interest and such Participant will be
severally, primarily, and personally liable for such amount; and (3) no
Participant will have protected himself from loss for amounts
contributed to the Partnership through nonrecourse financing,
guarantees, stop loss agreements or other similar arrangements.
We have considered the provisions of the American Bar Association's
Revised Formal Opinion 346 on Tax Law Opinions ("ABA Opinion 346") and
31 CFR, Part 10, 10.33 (Treasury Department Circular No. 230) on tax
law opinions and we believe that this opinion letter addresses all
material federal income tax issues associated with an investment in the
Units by an individual Participant who is a resident citizen of the
United States. We consider material those issues which would affect
significantly a Participant's deductions, credits or losses arising from
his investment in the Units and with respect to which, under present
law, there is a reasonable possibility of challenge by the IRS, or those
issues which are expected to be of fundamental importance to a
Participant but as to which a challenge by the IRS is unlikely. The
issues which involve a reasonable possibility of challenge by the IRS
have not been definitely resolved by statute, rulings or regulations, as
interpreted by judicial or administrative bodies.
Subject to the foregoing, however, in our opinion it is more likely
than not that the following tax treatment will be upheld if challenged
by the IRS and litigated:
Partnership Classification. The Partnership will be classified as a
partnership for federal income tax purposes, and not as an association
taxable as a corporation; the Partnership, as such, will not pay any
federal income taxes, and all items of income, gain, loss, deduction,
and credit of the Partnership will be reportable by the Partners in the
Partnership. (See "- Partnership Classification.")
Intangible Drilling and Development Costs. Intangible drilling and
development costs paid by the Partnership under the terms of bona fide
drilling contracts for the Partnership's wells will be deductible in the
taxable year in which the payments are made and the drilling services
are rendered, assuming such amounts are fair and reasonable
consideration and subject to certain restrictions summarized below
(including basis and "at risk" limitations and the passive activity loss
limitation with respect to the Limited Partners). (See "- Intangible
Drilling and Development Costs" and "- Drilling Contracts.")
Prepayments of Intangible Drilling and Development Costs. Depending
primarily on when the Partnership Subscription is received, it is
anticipated that the Partnership will prepay in 1997 most, if not all,
of the intangible drilling and development costs related to Partnership
Wells the drilling of which will be commenced in 1998. Assuming that
such amounts are fair and reasonable, and based in part on the factual
assumptions set forth below, in our opinion such prepayments of
intangible drilling and development costs will be deductible for the
1997 taxable year even though all Working Interest owners in the well
may not be required to prepay such amounts, subject to certain
restrictions summarized in "Tax Aspects" (including basis and "at risk"
limitations, and the passive activity loss limitation with respect to
the Limited Partners). (See "- Drilling Contracts", below.)
The foregoing opinion is based in part on the assumptions that: (1)
such costs will be required to be prepaid in 1997 for specified wells
pursuant to the Drilling and Operating Agreement; (2) pursuant to the
Drilling and Operating Agreement the wells are required to be, and
actually are, Spudded on or before March 31, 1998, and continuously
drilled thereafter until completed, if warranted, or abandoned; and (3)
the required prepayments are not refundable to the Partnership and any
excess prepayments are applied to intangible drilling and development
costs of substitute wells.
Not a Publicly Traded Partnership. Assuming that no more than 10% of
the Units are transferred in any taxable year of the Partnership (other
than in private transfers described in Treas. Reg. 1.7704-1(e)), it is
more likely than not that the Partnership will not be treated as a
"publicly traded partnership" under the Code. (See "- Limitations on
Passive Activities".)
Passive Activity Classification. Oil and gas production income
generated by the Partnership's oil and gas properties held as Working
Interests, together with gain, if any, from the disposition of such
properties and allocable to Limited Partners who are individuals,
estates, trusts, closely held corporations or personal service
corporations more likely than not will be characterized as income from a
passive activity which may be offset by passive activity losses (as
defined in 469(d) of the Code). Income or gain attributable to
investments of working capital of the Partnership will be characterized
as portfolio income, which cannot be offset by passive activity losses.
To the extent the Partnership's oil and gas properties are held as
Working Interests, it is more likely than not that the passive activity
limitations on losses under 469 will not be applicable to Investor
General Partners prior to the conversion of Investor General Partner
Units to Limited Partner interests. (See "- Limitations on Passive
Activities.")
Tax Basis of Participant's Interest. Each Participant's adjusted tax
basis in his Partnership interest will be increased by his total Agreed
Subscription. (See "- Tax Basis of Participants' Interests.")
At Risk Limitation on Losses. Each Participant initially will be "at
risk" to the full extent of his Agreed Subscription. (See "- `At Risk'
Limitation For Losses.")
Depletion Allowance. The greater of cost depletion or percentage
depletion will be available to qualified Participants as a current
deduction against Partnership income from oil and gas production
revenues on properties of the Partnership, subject to certain
restrictions summarized below. (See "- Depletion Allowance.")
ACRS. The Partnership's reasonable costs for recovery property
(tangible depreciable property used in a trade or business or held for
the production of income) which cannot currently be deducted but must be
capitalized will be eligible for cost recovery deductions under the
modified Accelerated Cost Recovery System, generally over a seven year
"cost recovery period", subject to certain restrictions summarized below
(including basis and "at risk" limitations and the passive activity loss
limitation in the case of Limited Partners). (See "- Depreciation
Accelerated Cost Recovery System.")
Availability of Certain Deductions. Business expenses, including
payments for personal services actually rendered in the taxable year in
which accrued, which are reasonable, ordinary and necessary and do not
include amounts for items such as Lease acquisition costs, organization
and syndication fees and other items which are required to be
capitalized, are currently deductible. (See "- 1997 Expenditures", "
Availability of Certain Deductions" and "- Partnership Organization and
Syndication Fees.")
Allocations. Assuming the effect of the allocations of income, gain,
loss, deduction and credit (or items thereof) set forth in the
Partnership Agreement, including the allocations of basis and amount
realized with respect to oil and gas properties, is substantial in light
of a Participant's tax attributes that are unrelated to the Partnership,
it is more likely than not that such allocations will have "substantial
economic effect" and will govern each Participant's distributive share
of such items to the extent such allocations do not cause or increase
deficit balances in the Participants' Capital Accounts. (See "-
Allocations.")
Agreed Subscription. No gain or loss will be recognized by the
Participants on payment of their Agreed Subscriptions.
Profit Motive. Based on the Managing General Partner's representation
that the Partnership will be conducted as described in the Prospectus,
it is more likely than not that the Partnership will possess the
requisite profit motive and will not be properly characterized as a tax
shelter for purposes of the tax shelter registration requirement and the
substantial understatement of income tax liability penalty. (See "
Disallowance of Deductions Under Section 183 of the Code" and "
Penalties and Interest.")
IRS Anti-Abuse Rule. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in
the Prospectus, it is more likely than not that the Partnership will not
be subject to the anti-abuse rule set forth in Treas. Reg. 1.701-2.
(See "- Penalties and Interest - IRS Anti-Abuse Rule.")
Overall Evaluation of Tax Benefits. Based on our conclusion that
substantially more than half of the material tax benefits of the
Partnership, in terms of their financial impact on a typical
Participant, more likely than not will be realized if challenged by the
IRS, it is our opinion that the tax benefits of the Partnership, in the
aggregate, which are a significant feature of an investment in the
Partnership by a typical original Participant more likely than not will
be realized as contemplated by the Prospectus. Special Counsel intends
that the foregoing "more likely than not" opinion also is a "probably
will" opinion under the standard set forth in ABA Opinion 346. The
discussion in the Prospectus under the caption "TAX ASPECTS," insofar as
it contains statements of federal income tax law, is correct in all
material respects. (See "Tax Aspects" in the Prospectus.)
* * * * * * * * * * * * *
Our opinion is limited to the opinions expressed above. With respect
to some of the matters discussed in this opinion, existing law provides
little guidance. Although our opinions express what we believe a court
would probably conclude if presented with the applicable issues, there
is no assurance that the IRS will not challenge our interpretations or
that such a challenge would not be sustained in the courts and cause
adverse tax consequences to the Participants. It should be noted that
taxpayers bear the burden of proof to support claimed deductions and
opinions of counsel are not binding on the IRS or the courts.
In General
The following is a summary of some of the principal features under
present federal income tax law which will apply to the Partnership and
typical Participants. However, there is no assurance that the present
laws or regulations will not be changed and adversely affect a
Participant. The IRS may challenge the deductions claimed by the
Partnership or a Participant, or the taxable year in which such
deductions are claimed, and no guaranty can be given that any such
challenge would not be upheld if litigated. The practical utility of the
tax aspects of any investment depends largely on the income tax position
of the particular Participant in the year in which items of income,
gain, loss, deduction or credit are properly taken into account in
computing his federal income tax liability. In addition, except as
otherwise noted, different tax considerations may apply to foreign
persons, corporations partnerships, trusts and other prospective
Participants which are not treated as individuals for federal income tax
purposes. EACH PROSPECTIVE PARTICIPANT SHOULD SATISFY HIMSELF AS TO THE
TAX CONSEQUENCES OF PARTICIPATING IN THE PARTNERSHIP BY OBTAINING ADVICE
FROM HIS OWN TAX ADVISOR.
Partnership Classification
For federal income tax purposes, a partnership is not a taxable
entity but rather a conduit through which all items of income, gain,
loss, deduction, credit and tax preference are passed through to the
partners and are required to be reported on their federal income tax
returns for the taxable years in which or with which the partnership's
taxable year ends. I.R.C. 706(a). Thus, the partners, rather than the
partnership, receive any tax deductions and credits, as well as the
income, from the operations engaged in by the partnership. It is the
opinion of Special Counsel that, under currently existing laws, rules
and regulations, all of which are subject to change with or without
retroactive application, the Partnership will be treated as a
partnership for federal income tax purposes and not as an association
taxable as a corporation. Under new regulations a business entity with
two or more members is classified for federal tax purposes as either a
corporation or a partnership. Treas. Reg. 301.7701-2(a). The term
corporation includes a business entity organized under a State statute
which describes the entity as a corporation, body corporate, body
politic, joint-stock company or joint-stock association. Treas. Reg.
301.7701-2(b). The Partnership was formed under the Pennsylvania
Revised Uniform Limited Partnership Act which describes the Partnership
as a "partnership". Consequently, the Partnership is not required to be
classified as a corporation under Treas. Reg. 301.7701-2(b) and will be
automatically classified as a partnership unless it affirmatively elects
to be classified as a corporation. In this regard, the Managing General
Partner has represented that no election for the Partnership to be
classified as a corporation will be filed with the IRS.
Limitations on Passive Activities
Under the passive activity rules, all income of a taxpayer who is
subject to the rules is categorized as: (i) income from passive
activities such as limited partners' interests in a business; (ii)
active income (e.g., salary, bonuses, etc.); or (iii) portfolio income
(e.g., dividends, royalties and interest not derived in the ordinary
course of a trade or business). Losses generated by "passive activities"
can offset only passive income and cannot be applied against active
income or portfolio income.
The passive activity rules apply to individuals, estates, trusts,
closely held C corporations (generally, if five or fewer individuals own
directly or indirectly more than 50% of the stock) and personal service
corporations (other than corporations where the owner-employees together
own less than 10% of the stock). However, a closely held C corporation
(other than a personal service corporation) may use passive losses and
credits to offset taxable income of the company figured without regard
to passive income or loss or portfolio income. Passive activities
include: (i) any trade or business in which the taxpayer does not
materially participate; and (ii) any rental activity, whether or not the
taxpayer materially participates, subject to certain exceptions.
Material participation is defined as involvement in the operations of
the activity on a regular, continuous, and substantial basis. Under the
Partnership Agreement, Limited Partners will not have material
participation in the Partnership and generally will be subject to the
passive activity rules.
A taxpayer who holds a working interest in an oil and gas property
that is burdened with the cost of developing and operating the property
is excepted from the passive activity rules, whether or not he
materially participates in the activity. However, a taxpayer who holds a
working interest directly or indirectly through an entity (e.g., a
limited partnership interest or S corporation shares) which limits the
liability of the taxpayer with respect to such interest is not treated
as owning a working interest. Consequently, the exception is not
available to Limited Partners in the Partnership, but in the opinion of
Special Counsel it is more likely than not that the exception will be
available to Investor General Partners prior to their conversion to
Limited Partners to the extent the Partnership acquires Working
Interests in its Leases, except as noted above. Contractual limitations
on the liability of Investor General Partners under the Partnership
Agreement (e.g. insurance, limited indemnification, etc.) will not
prevent Investor General Partners from claiming deductions under the
working interest exception to the passive activity loss rules.
Overriding royalties, production payments and contract rights to extract
or share in oil and gas profits without liability for a share of
production costs are excluded from the definition of a working interest.
Deductions disallowed by the at-risk limitation on losses under 465
of the Code become subject to the passive loss limitation only if the
taxpayer's at-risk amount increases in future years. A taxpayer's
at-risk amount is reduced by losses allowed under 465 even if the
losses are suspended by the passive loss limitation. (See "- `At Risk'
Limitation For Losses," below.) Similarly, a taxpayer's basis is reduced
by deductions even if the deductions are disallowed under the passive
loss limitation. (See "- Tax Basis of Participants' Interests," below.)
Suspended losses and credits may be carried forward (but not back)
and used to offset future years' passive activity income. A suspended
loss (but not a credit) is allowed in full when the entire interest is
sold to an unrelated third party in a taxable transaction and in part
upon the disposition of substantially all of the passive activity if the
suspended loss as well as current gross income and deductions can be
allocated to the part disposed of with reasonable certainty. Upon such
disposition the excess of suspended losses and any loss from the
activity for the tax year (plus any loss on the sale) over net income or
gain for the tax year from all passive activities (determined without
regard to such losses) is not treated as a passive loss. Capital losses
are limited to the amount of capital gain, plus $3,000 (in the case of
married individuals filing joint returns). I.R.C. 1211. The
capital-loss limit is applied before the determination is made of the
amount of passive losses made available by a disposition. In an
installment sale, passive losses become available in the same ratio that
gain recognized each year bears to the total gain on the sale.
Any suspended losses remaining at a taxpayer's death are allowed as
deductions on his final return, subject to a reduction to the extent the
basis of the property in the hands of the transferee exceeds the
property's adjusted basis immediately prior to the decedent's death. If
a taxpayer makes a gift of his entire interest in a passive activity,
the donee's basis is increased by any suspended losses and no deductions
are allowed. If the interest is later sold at a loss, the donee's basis
is limited to the fair market value on the date the gift was made.
Net losses and credits of a partner from each publicly traded
partnership are suspended and carried forward to be netted against
income from that publicly traded partnership only. In addition, net
losses from other passive activities may not be used to offset net
income from a publicly traded partnership. I.R.C. 469(k)(2) and 7704.
However, it is more likely than not that the Partnership will not be
characterized as a publicly traded partnership under the Code, so long
as no more than 10% of the Units are transferred in any taxable year of
the Partnership (other than in private transactions described in Treas.
Reg. 1.7704-1(e)).
Characterization of the Partnership's Income. Income (e.g., interest)
earned on working capital is treated as portfolio income which cannot be
offset with passive losses by Limited Partners. "Portfolio income"
consists of (i) interest, dividends and royalties (unless earned in the
ordinary course of a trade or business); and (ii) gain or loss not
derived in the ordinary course of a trade or business on the sale of
property that generates portfolio income or is held for investment.
In the opinion of Special Counsel, it is more likely than not that
the Partnership's income from the Leases (excluding income attributable
to investment of working capital), held as Working Interests, together
with gain, if any, from the disposition of such property, will be
characterized as passive income rather than portfolio income with
respect to Limited Partners subject to the passive activity limitations.
Conversion from Investor General Partner to Limited Partner. Investor
General Partner Units will be converted to Limited Partner interests
after substantially all of the Partnership Wells have been drilled and
completed, which is anticipated to be in the late summer of 1998.
Thereafter, each Investor General Partner will be deemed a Limited
Partner in the Partnership and will enjoy the limited liability provided
to limited partners under the Revised Uniform Limited Partnership Act of
Pennsylvania with respect to his interest in the Partnership's oil and
gas properties. Concurrently, the Investor General Partner will lose the
availability of the working interest exception to the passive activity
limitations. Except as provided below, an Investor General Partner's
conversion of his Partnership interest into a Limited Partner interest
should not have adverse tax consequences unless the Investor General
Partner's share of any Partnership liabilities is reduced as a result of
the conversion. Rev. Rul. 84-52, 1984-1 C.B. 157 and Prop. Reg.
1.1254-2. A reduction in a partner's share of liabilities is treated as
a constructive distribution of cash to such partner, which reduces the
basis of the partner's interest in the partnership and is taxable to the
extent it exceeds such basis. In addition, if a taxpayer has a loss for
a taxable year from a working interest in an oil and gas property which
is treated as a loss which is not from a passive activity, then any net
income from such property for any succeeding taxable year will be
treated as income of the taxpayer which is not from a passive activity.
Consequently, if an Investor General Partner has a non-passive loss in
1997 with respect to the Partnership's Working Interests in the Leases,
which is anticipated, any net income from a Partnership Well allocable
to such Investor General Partner in any subsequent taxable year (even
though he may then be a Limited Partner) will be characterized as
non-passive income which cannot be offset with passive losses. For this
purpose the Partnership's Wells will be deemed to include any property
the value of which is directly enhanced by any drilling, logging, or
other activities any part of the costs of which were borne by the
Investor General Partners as a result of holding the Working Interests
in the Wells (and any property the basis of which is determined in whole
or in part by reference to the basis of the property receiving the
increase in value).
Taxable Year
The Partnership intends to adopt a calendar year taxable year. I.R.C.
706(b). The taxable year of the Partnership is important to a
prospective Participant because the Partnership's deductions, income and
other items of tax significance must be taken into account in computing
the Participant's taxable income for his taxable year within or with
which the Partnership's taxable year ends. The tax year of a partnership
generally must be the tax year of one or more of its partners who have
an aggregate interest in partnership profits and capital of greater than
50%.
1997 Expenditures
It is anticipated that all of the Partnership's subscription proceeds
will be expended in 1997 and that the income and deductions generated
pursuant thereto will be reflected on the Participants' federal income
tax returns for that period. (See "Capitalization and Source of Funds
and Use of Proceeds" and "Participation in Costs and Revenues" in the
Prospectus.) Depending primarily on when the Partnership Subscription is
received, it is anticipated that the Partnership will prepay in 1997
most, if not all, of its intangible drilling and development costs for
wells the drilling of which will be commenced in 1998. The deductibility
in 1997 of such advance payments cannot be guaranteed. (See "- Drilling
Contracts", below.)
Availability of Certain Deductions
The ordinary and necessary expenses of carrying on any trade or
business, including a reasonable allowance for salaries or other
compensation for personal services actually rendered, are deductible in
the year incurred. The tests for deductibility in the case of
compensation payments are whether the payments are: (i) reasonable; and
(ii) purely for services actually rendered. Treasury Regulation
1.162-7(b)(3) provides that reasonable compensation is only such amount
as would ordinarily be paid for like services by like enterprises under
like circumstances. The Managing General Partner has represented to
counsel that the amounts payable to the Managing General Partner and its
Affiliates, including the amounts paid to Atlas or its Affiliates as
general drilling contractor, are the amounts which would ordinarily be
paid for similar services in similar transactions. (See "- Drilling
Contracts," below.)
The fees paid to the Managing General Partner and its Affiliates will
not be currently deductible to the extent it is determined that they are
in excess of reasonable compensation, are properly characterized as
organization or syndication fees, other capital costs such as the
acquisition cost of the Leases, or not "ordinary and necessary" business
expenses, or the services were rendered in tax years other than the tax
year in which such fees were deducted by the Partnership. (See "
Partnership Organization and Syndication Fees," below.) In the event of
an audit, payments to the Managing General Partner and its Affiliates by
the Partnership will be scrutinized by the IRS to a greater extent than
payments to an unrelated party.
Intangible Drilling and Development Costs
Assuming a proper election and subject to the passive activity loss
rules in the case of Limited Partners, each Participant will be entitled
to deduct his share of intangible drilling and development costs which
include items which do not have salvage value, such as labor, fuel,
repairs, supplies and hauling necessary to the drilling of a well.
Treas. Reg. 1.612-4(a). (See "Participation in Costs and Revenues" in
the Prospectus and "- Limitations on Passive Activities," above.) Such
costs generally will be subject to ordinary income recapture if a
property is sold at a gain and the amount to be recaptured is not
reduced by the amount of additional depletion that could have been
claimed if such costs had been capitalized and amortized. (See "- Sale
of the Properties," below.) Also, productive-well intangible drilling
and development costs may subject a Participant to an alternative
minimum tax in excess of regular tax unless an election is made to
deduct them on a straight-line basis over a 60 month period. (See "
Minimum Tax - Tax Preferences," below.)
In the preparation of the Partnership's informational tax returns,
Atlas will allocate Partnership costs paid by Atlas and the Participants
among Intangible Drilling Costs, Tangible Costs, Direct Costs,
Administrative Costs, Organization and Offering Costs and Operating
Costs based upon guidance from advisors to Atlas. Atlas has allocated
approximately 77% of the footage price paid by the Partnership for a
completed well in the Appalachian Basin to intangible drilling and
development costs ("Intangible Drilling Costs") which are charged 100%
to the Participants under the Partnership Agreement. The IRS could
challenge the characterization of costs claimed by Atlas to be
deductible intangible drilling and development costs and recharacterize
such costs as some other item which may be non-deductible however, this
would have no effect on the allocation and payment of such costs under
the Partnership Agreement. Where a Lease is acquired subject to an
obligation to pay an excessive drilling price, such excess amounts may
not qualify as deductible intangible drilling and development costs but
may be treated as Lease acquisition costs or some other non-deductible
expense.
In the case of corporations, other than S corporations, which are
"integrated oil companies," the amount allowable as a deduction for
intangible drilling and development costs in any taxable year under
263(c) of the Code is reduced by 30%. I.R.C. 291(b)(1). Integrated oil
companies are (i) those taxpayers who directly or through a related
person engage in the retail sale of oil or gas and whose gross receipts
for the calendar year from such activities exceed $5,000,000, or (ii)
those taxpayers and related persons who have refinery production in
excess of 50,000 barrels on any day during the taxable year. For these
purposes, two persons are "related" if either has a 5% interest in the
other or a third person has a 5% interest in both, determined under
special ownership attribution rules. Amounts disallowed as a current
deduction are allowable as a deduction ratably over the 60-month period
beginning with the month in which the costs are paid or incurred. The
portion of the adjusted basis of any property attributable to intangible
drilling and development costs disallowed under 291(b)(1) of the Code
cannot be taken into account to determine depletion under 611. Any
deductions of intangible drilling and development costs over the
60-month period will be subject to recapture.
Drilling Contracts
The Partnership will enter into the Drilling and Operating Agreement
with Atlas or its Affiliates, as a third-party general drilling
contractor, to drill and complete the Partnership's Development Wells on
a footage basis of $37.39 per foot for each well that is drilled and
completed in the Appalachian Basin, and at a competitive rate for wells,
if any, drilled in other areas of the United States. Under the footage
drilling contracts for wells situated in the Mercer County area of the
Appalachian Basin, Atlas anticipates that it will have reimbursement of
general and administrative overhead of $3,600 per well and a profit of
approximately 15% per well assuming the well is drilled to 6,150 feet.
However, the actual cost of the drilling of the wells may be more or
less than the estimated amount, due primarily to the uncertain nature of
drilling operations. Atlas believes the Drilling and Operating Agreement
is at competitive rates in the proposed areas of operation.
Nevertheless, the amount of the profit realized by Atlas under the
drilling contract, if any, could be challenged by the IRS as
unreasonable and disallowed as a deductible intangible drilling and
development cost. (See "- Intangible Drilling and Development Costs",
above, and "Proposed Activities" and "Compensation" in the Prospectus.)
Depending primarily on when the Partnership Subscription is received,
it is anticipated that the Partnership will prepay in 1997 most, if not
all, of the intangible drilling and development costs for drilling
activities that will be conducted in 1998. In Keller v. Commissioner, 79
T.C. 7 (1982), aff'd 725 F.2d 1173 (8th Cir. 1984), the Tax Court
applied a two-part test for the current deductibility of prepaid
intangible drilling and development costs: (1) the expenditure must be a
payment rather than a refundable deposit; and (2) the deduction must not
result in a material distortion of income taking into substantial
consideration the business purpose aspects of the transaction. The
drilling partnership in Keller entered into footage and daywork drilling
contracts which permitted it to terminate the contracts at any time
without default by the driller, and receive a return of the prepaid
amounts less amounts earned by the driller. The Tax Court found that the
right to receive, by unilateral action, a refund of the prepayments on
such footage and daywork drilling contracts rendered such prepayments
deposits instead of payments. Therefore, the prepayments were held to be
nondeductible in the year they were paid to the extent they had not been
earned by the driller. The Tax Court further found that the drilling
partnership failed to show a convincing business purpose for prepayments
under the footage and daywork drilling contracts.
The drilling partnership in Keller also entered into turnkey drilling
contracts which permitted it to stop work under the contract at any time
and apply the unearned balance of the prepaid amounts to another well to
be drilled on a turnkey basis. The Tax Court found that such prepayments
constituted "payments" and not nondeductible deposits, despite the right
of substitution. Further, the Tax Court noted that the turnkey drilling
contracts obligated "the driller to drill to the contract depth for a
stated price regardless of the time, materials or expenses required to
drill the well," thereby locking in prices and shifting the risks of
drilling from the drilling partnership to the driller. Since the
drilling partnership, a cash basis taxpayer, received the benefit of the
turnkey obligation in the year of prepayment, the Tax Court found that
the amounts prepaid on turnkey drilling contracts clearly reflected
income and were deductible in the year of prepayment.
In Leonard T. Ruth, TC Memo 1983-586, a drilling program entered into
nine separate turnkey contracts with a general contractor (the parent
corporation of the drilling program's corporate general partner), to
drill nine program wells. Each contract identified the prospect to be
drilled, stated the turnkey price, and required the full price to be
paid in 1974. The program paid the full turnkey price to the general
contractor on December 31, 1974; the receipt of which was found by the
court to be significant in the general contractor's financial planning.
The program had no right to receive a refund of any of such payments.
The actual drilling of the nine wells was subcontracted by the
general contractor to independent contractors who were paid by the
general contractor in accordance with their individual contracts. The
drilling of all wells commenced in 1975 and all wells were completed
that year. The amount paid by the general contractor to the independent
driller for its work on the nine wells was approximately $365,000 less
than the amount prepaid by the program to the general contractor.
The program claimed a deduction for intangible drilling and
development costs in 1974. The IRS challenged the timing of the
deduction, contending that there was no business purpose for the
payments in 1974, that the turnkey arrangements were merely "contracts
of convenience" designed to create a tax deduction in 1974, and that the
turnkey contracts constituted assets having a life beyond the taxable
year and that to allow a deduction for their entire costs in 1974
distorted income.
The Tax Court, relying on Keller, held that the program could deduct
the full amount of the payments in 1974. The court found that the
program entered into turnkey contracts, paid a premium to secure the
turnkey obligations, and thereby locked in the drilling price and
shifted the risks of drilling to the general contractor. Further, the
court found that by signing and paying the turnkey obligation, the
program got its bargained-for benefit in 1974, therefore the deduction
of the payments in 1974 clearly reflected income.
The Partnership will attempt to comply with the guidelines set forth
in Keller with respect to prepaid intangible drilling and development
costs. The Drilling and Operating Agreement will require the Partnership
to prepay in 1997 intangible drilling and development costs for
specified wells the drilling of which will be commenced in 1998.
Although the Partnership is not required to prepay completion costs of a
well prior to the time a decision has been made to complete the well, it
is anticipated that all Partnership Wells will be required to be
completed before an evaluation can be made as to their potential
productivity. Prepayments should not result in a loss of current
deductibility where there is a legitimate business purpose for the
required prepayment, the contract is not merely a sham to control the
timing of the deduction and there is an enforceable contract of economic
substance. The Drilling and Operating Agreement will require the
Partnership to prepay the intangible drilling and development costs of
the wells in order to enable the Operator to commence site preparation
for the wells, obtain suitable subcontractors at the then current prices
and insure the availability of equipment and materials. Under the
Drilling and Operating Agreement excess prepaid amounts, if any, will
not be refundable to the Partnership but will be applied to intangible
drilling and development costs to be incurred in drilling substitute
wells. Under Keller, such a provision for substitute wells should not
result in the prepayments being characterized as refundable deposits.
The likelihood that prepayments will be challenged by the IRS on the
grounds that there is no business purpose for the prepayment is
increased in the event prepayments are not required with respect to 100%
of the Working Interest. It is possible that less than 100% of the
Working Interest will be acquired by the Partnership in one or more
wells and prepayments may not be required of all holders of the Working
Interest. However, in the view of Special Counsel, a legitimate business
purpose for the required prepayments may exist under the guidelines set
forth in Keller, even though prepayment is not required, or actually
received, by the drilling contractor with respect to a portion of the
Working Interest.
In addition to the foregoing, a current deduction for prepaid
intangible drilling and development costs is available only if the
drilling of the wells is commenced before the close of the 90th day
after the close of the taxable year. The Managing General Partner will
attempt to cause prepaid Partnership Wells to be Spudded on or before
March 31, 1998. However, the Spudding of any Partnership Well may be
delayed due to circumstances beyond the control of the Partnership or
the drilling contractor. Such circumstances include the unavailability
of drilling rigs, weather conditions, inability to obtain drilling
permits or access right to the drilling site, or title problems. Due to
the foregoing factors no guaranty can be given that all prepaid
Partnership Wells required by the Drilling and Operating Agreement to be
Spudded on or before March 31, 1998, will actually be commenced by such
date. In that event, deductions claimed in 1997 for prepaid intangible
drilling and development costs would be disallowed and deferred to the
1998 taxable year.
No assurance can be given that on audit the IRS would not disallow
the current deductibility of a portion or all of any prepayments of
intangible drilling and development costs under the Partnership's
drilling contracts, thereby decreasing the amount of deductions
allocable to the Participants for the current taxable year, or that such
a challenge would not ultimately be sustained. In the event of
disallowance, the deduction would be available in the year the work is
actually performed.
Depletion Allowance
The Partnership intends to own an economic interest in all
Partnership Wells that produce gas or oil. Proceeds from the sale of oil
and gas production will constitute ordinary income. A certain portion of
such income will not be taxable by virtue of the depletion allowance
which permits the deduction from gross income for federal income tax
purposes of either the percentage depletion allowance or the cost
depletion allowance, whichever is greater. Accordingly, each Participant
will be entitled to take into account on his own federal income tax
return his share of allowable depletion as computed at the individual
partner level, rather than the partnership level.
Cost depletion for any year is determined by dividing the adjusted
tax basis for the property by the total units of gas or oil expected to
be recoverable therefrom and then multiplying the resultant quotient by
the number of units actually sold during the year. Cost depletion cannot
exceed the adjusted tax basis of the property to which it relates.
Percentage depletion generally is available to taxpayers other than
integrated oil companies. (See "- Intangible Drilling and Development
Costs.") Percentage depletion generally is based on the Participant's
share of gross income from the oil and gas producing property.
Generally, percentage depletion is available with respect to 6 million
cubic feet of average daily production of natural gas or 1,000 barrels
of average daily production of domestic crude oil. Taxpayers who have
both oil and gas production may allocate the production limitation
between such production. The rate of percentage depletion is 15%.
However, percentage depletion for marginal production increases 1% (up
to a maximum increase of 10%) for each whole dollar that the domestic
wellhead price of crude oil for the immediately preceding year is less
than $20 per barrel (without adjustment for inflation). The term
"marginal production" includes oil and gas produced from a domestic
stripper well property, which is defined as any property which produces
a daily average of 15 or less equivalent barrels of oil (90 MCF of
natural gas) per producing well on the property in the calendar year.
The rate of percentage depletion for marginal production presently is
16%. (See the model decline curve included in the United Energy
Development Consultants, Inc. Geological Report in "Proposed Activities
- - Information Regarding Currently Proposed Prospects" in the
Prospectus.)
Percentage depletion may not exceed 100% of the taxable income from
each oil and gas property before the deduction for depletion and is
limited to 65% of the taxpayer's taxable income for a year computed
without regard to percentage depletion, net operating loss carrybacks
and capital loss carrybacks.
On disposition of an oil and gas property there is recapture of the
lesser of: (i) the amounts that were deducted under 263 of the Code as
intangible drilling and development costs rather than added to basis,
plus depletion deductions that reduced the basis of the property; or
(ii) the amount realized in the case of a sale, exchange or involuntary
conversion or fair market value in all other cases, minus the property's
adjusted basis. Furthermore, the amount of recapturable intangible
drilling and development costs is not reduced by the amount by which
depletion would have been increased if the expensed intangible drilling
and development costs had been capitalized.
Availability of the percentage depletion allowance and limitations
thereon must be computed separately for each Participant and not by the
Partnership, or for Participants as a whole. Potential Participants are
urged to consult their own tax advisors with respect to the availability
of the percentage depletion allowance to them.
Depreciation - Accelerated Cost Recovery System
Tangible Costs and the related depreciation deductions are allocated
and charged under the Partnership Agreement 14% to the Managing General
Partner and 86% to the Participants. Most equipment placed in service
by the Partnership will be classified as "7-year" property and the cost
of such property generally will be recovered over a seven year cost
recovery period. I.R.C. 168(c). The depreciation method for property in
the 7-year class is 200% declining balance, with a switch to
straight-line to maximize the deduction. All property assigned to the
7-year class is treated as placed in service (or disposed of) in the
middle of the year and in the case of a short tax year the ACRS
deduction is prorated on a 12-month basis. The half-year convention
effectively adds another year onto the cost-recovery period.
No distinction is made between new and used property and salvage
value is disregarded. Component depreciation is prohibited and an
alternative depreciation system is used to compute the depreciation
preference subject to the alternative minimum tax (using the 150%
declining balance method, switching to straight-line, for most personal
property). (See "- Minimum Tax - Tax Preferences," below.) All gain on a
disposition of tangible personal property is treated as ordinary income
to the extent of ACRS deductions claimed by the taxpayer and deductions
allowed under 179 (expensing) are treated as depreciation deductions
for recapture purposes. As under prior law (unless otherwise provided by
regulations), the full amount of proceeds realized on a disposition of
property from a mass asset account is treated as ordinary income (with
no reduction for basis), however, no reduction is made in the
depreciable basis remaining in the account. Cost recovery deductions
allocable to the Participants in a taxable year may be reduced under
certain circumstances to the extent foreign persons or tax-exempt
entities subscribe to the Partnership.
Section 179 provides an election to expense a portion of the cost of
certain tangible personal property in the year such property is placed
in service. The amount allowable as a deduction in 1997 is $18,000.
However, the deductible amount is reduced dollar-for-dollar by the cost
of qualifying property in excess of $200,000 and the amount expensed
cannot exceed the taxable income derived from the active conduct by the
taxpayer of the trade or business in which the property is used. These
limitations are applied at both the partnership and the partner level.
I.R.C. 179(d)(8). Any excess expensed amount is carried forward. If
this special election to expense is made, the basis of the property used
to compute cost recovery deductions is reduced by the amount expensed
and is subject to recapture if the property is not used predominately in
a trade or business at any time. I.R.C. 179.
Leasehold Costs and Abandonment
The costs of acquiring oil and gas Lease interests, together with the
related cost depletion deduction and any abandonment loss, are allocated
under the Partnership Agreement 100% to Atlas, which will contribute the
Leases to the Partnership as a part of its Capital Contribution.
Tax Basis of Participants' Interests
The adjusted basis for federal income tax purposes of a Participant's
interest in the Partnership will be adjusted (but not below zero) for
any gain or loss to the Participant from a disposition by the
Partnership of an oil or gas property, and will be increased by: (i) his
cash subscription payment and any additional Capital Contributions paid
in cash to the Partnership, (ii) his share of any nonrecourse debt of
the Partnership, (iii) his share of any recourse debt of the
Partnership, (iv) his share of the taxable income of the Partnership;
and (v) his share of tax exempt income of the Partnership. (See
"Partnership Borrowings," below.)
The adjusted basis of a Participant's interest in the Partnership
will be reduced by: (i) his share of Partnership losses; (ii) his share
of Partnership expenditures that are not deductible in computing its
taxable income and are not properly chargeable to capital account; (iii)
his deduction for depletion for any partnership oil and gas property
(but not below zero); and (iv) cash distributions from the Partnership
to him. The reduction in a Participant's share of recourse or
nonrecourse liabilities is considered a cash distribution. Should cash
distributions exceed the tax basis of the Participant's interest in the
Partnership, taxable gain would result to the extent of the excess. (See
"- Distributions From a Partnership," below.)
A Participant's distributive share of Partnership loss is allowable
only to the extent of the adjusted basis of such Participant's interest
in the Partnership at the end of the Partnership's taxable year.
Participants will not be personally liable on any Partnership loans;
however, Investor General Partners will be liable for other obligations
of the Partnership. (See "Risk Factors - Special Risks of the
Partnership - Unlimited Liability of Investor General Partners" in the
Prospectus.)
Distributions From a Partnership
Generally, a cash distribution from a partnership to a partner in
excess of the adjusted basis of such partner's interest in the
partnership immediately before the distribution is treated as gain from
the sale or exchange of his interest in the partnership to the extent of
the excess. I.R.C. 731(a)(1). No loss is recognized by the partners on
these types of distributions. I.R.C. 731(a)(2). No gain or loss is
recognized by the Partnership on these types of distributions. I.R.C.
731(b). If property is distributed by the Partnership to the Managing
General Partner and the Participants, certain basis adjustments may be
made by the Partnership, the Managing General Partner and the
Participants. [Partnership Agreement, 5.04(d).] I.R.C. 732, 733, 734,
and 754. Other distributions of cash, disproportionate distributions of
property, and liquidating distributions may result in taxable gain
or loss. (See "- Disposition of Partnership Interests" and "
Termination of a Partnership," below.)
Sale of the Properties
Under current law, a noncorporate taxpayer's ordinary income is taxed
at a maximum rate of 39.6% but net capital gains of a noncorporate
taxpayer are taxed at a maximum rate of 28%. The annual capital loss
limitation for noncorporate taxpayers is the amount of capital gains
plus the lesser of $3,000 ($1,500 for married persons filing separate
returns) or the excess of capital losses over capital gains. Long-term
losses (like short-term losses) offset ordinary income on a one-for-one
basis. Section 1231 gain continues to be computed separately from
long-term gain.
Gains and losses from sales of oil and gas properties held for more
than twelve months and not held primarily for sale to customers would
be, except to the extent of depreciation recapture on equipment and
recapture of any intangible drilling and development costs, depletion
deductions and certain 1231 losses, gains and losses described in 1231
of the Code (in general, from sales or exchanges of real or depreciable
property used in a trade or business). A Participant's net 1231 gain
will be treated as a long-term capital gain while a net loss will be an
ordinary deduction. However, ordinary income will result to the extent
the net 1231 gain for any taxable year does not exceed the excess of
the aggregate amount of the net 1231 losses for the five most recent
preceding taxable years over the portion of such losses taken into
account in determining the portion of net 1231 gain to be treated as
ordinary income for such preceding taxable years. I.R.C. 1231(c). Other
gains and losses on sales of oil and gas properties will generally
result in ordinary gains or losses.
Intangible drilling and development costs that are incurred in
connection with an oil and gas property may be recaptured as ordinary
income when the property is disposed of by the Partnership. Generally,
the amount recaptured is the lesser of:
(1) the aggregate amount of expenditures which have been deducted
as intangible drilling and development costs with respect to the
property and which (but for being deducted) would be reflected
in the adjusted basis of the property; or
(2) the excess of (i) the amount realized (in the case of a sale,
exchange or involuntary conversion); or (ii) the fair market
value of the interest (in the case of any other disposition)
over the adjusted basis of the property. I.R.C. 1254(a).
In addition, the deductions for depletion which reduced the adjusted
basis of the property are subject to recapture as ordinary income.
Disposition of Partnership Interests
The sale or exchange of all or part of a Participant's interest in
the Partnership held by him for more than twelve months will generally
result in a recognition of long-term capital gain or loss except to the
extent of ordinary income or loss, if any, from Partnership 751 assets
(which consist of unrealized receivables or substantially appreciated
inventory). I.R.C. 751. In the event the interest is held for twelve
months or less, such gain or loss will generally be short-term gain or
loss. A portion of any gain recognized by a Limited Partner on the sale
or other disposition of his interest in the Partnership will also be
characterized as portfolio income under 469 to the extent the gain is
itself attributable to portfolio income (e.g. interest on investment of
working capital). The recapturable portions of depreciation, depletion
and intangible drilling and development costs constitute unrealized
receivables. A Participant's pro rata share of the Partnership's
nonrecourse liabilities, if any, as of the date of the sale or exchange
must be included in the amount realized. Therefore, the gain recognized
may result in a tax liability greater than the cash proceeds, if any,
from such disposition. A gift of an interest in the Partnership may
result in federal and/or state income tax and gift tax liability of the
donor.
A Participant who sells or exchanges all or part of his interest in
the Partnership is required by the Code to notify the Partnership within
30 days or by January 15 of the following year, if earlier. I.R.C.
6050K. After receiving such notice, the Partnership is required to make
a return with the IRS stating the name and address of the transferor and
the transferee and such other information as may be required by the IRS.
The Partnership must also provide each person whose name is set forth in
the return a written statement showing the information set forth on the
return with respect to such person.
If a partner sells or exchanges his entire interest in a partnership,
the taxable year of the partnership will close with respect to such
partner (but not the remaining partners) on the date of sale or
exchange, with a proration of partnership items for the partnership's
taxable year. If a partner sells less than his entire interest in a
partnership, the partnership year will not terminate with respect to the
selling partner, but his proportionate share of items of income, gain,
loss, deduction and credit will be determined by taking into account his
varying interests in the partnership during the taxable year. Deductions
or credits generally may not be allocated to a partner acquiring an
interest from a selling partner for a period prior to the purchaser's
admission to the partnership. I.R.C. 706(d).
Other dispositions of a Participant's interest, including a
repurchase of the interest by Atlas, may or may not result in
recognition of taxable gain. Interests in different partnerships do not
qualify for tax-free like-kind exchanges. I.R.C. 1031(a)(2)(D).
However, no gain should be recognized by an Investor General Partner
whose interest in the Partnership is converted to a Limited Partner
interest so long as there is no change in his share of the Partnership's
liabilities or 751 assets as a result of the conversion. Rev. Rul.
84-52, 1984-1 C.B. 157. No disposition of an interest in the Partnership
(including repurchase of the interest by Atlas) should be made by any
Participant prior to consultation with his tax advisor.
Minimum Tax - Tax Preferences
For taxpayers other than integrated oil companies (see "- Intangible
Drilling and Development Costs"), the 1992 National Energy Bill repealed
(1) the preference for excess intangible drilling and development costs
and (2) the excess percentage depletion preference for oil and gas. The
repeal of the excess intangible drilling and development costs
preference, however, may not result in more than a 40% reduction in the
amount of the taxpayer's alternative minimum taxable income computed as
if the excess intangible drilling and development costs preference had
not been repealed. These rules are summarized below.
The alternative minimum tax is intended to insure that no one with
substantial income can avoid tax liability by using deductions and
credits, including the deductions for intangible drilling and
development costs and accelerated depreciation. The alternative minimum
tax rate for individuals is 26% on alternative minimum taxable income up
to $175,000 ($87,500 for married individuals filing separate returns)
and 28% thereafter. Individual tax preferences may include, but are not
limited to: accelerated depreciation, intangible drilling and
development costs, incentive stock options and passive activity losses.
The exemption amount is $45,000 for married couples filing jointly and
surviving spouses, $33,750 for single filers, and $22,500 for married
persons filing separately, estates and trusts. These exemption amounts
are reduced by 25% of the alternative minimum taxable income in excess
of (1) $150,000 for joint returns and surviving spouses; (2) $75,000 for
estates, trusts and married persons filing separately, and (3) $112,500
for single taxpayers. Married individuals filing separately must
increase alternative minimum taxable income by the lesser of: (i) 25% of
the excess of alternative minimum taxable income over $165,000; or (ii)
$22,500. Regular tax personal exemptions are not available for purposes
of the alternative minimum tax.
The only itemized deductions allowed for minimum tax purposes are
those for casualty and theft losses, gambling losses to the extent of
gambling gains, charitable deductions, medical deductions (to the extent
in excess of 10% of adjusted gross income), interest expenses
(restricted to qualified housing interest as defined in 56(e) of the
Code and investment interest expense not exceeding net investment
income), and certain estate taxes. The net operating loss for
alternative minimum tax purposes generally is the same as for regular
tax purposes, except: (i) current year tax preference items are added
back to taxable income, and (ii) individuals may use only those itemized
deductions (as modified under 172(d)) allowable in computing
alternative minimum taxable income. Code sections suspending losses,
such as 465 and 704(d), are recomputed for minimum tax purposes and
the amount of the deductions suspended or recaptured may differ for
regular and minimum tax purposes.
Under the prior rules, the amount of intangible drilling and
development costs which is not deductible for alternative minimum tax
purposes is the excess of the "excess intangible drilling costs" over
65% of net income from oil and gas properties. Net oil and gas income is
determined for this purpose without subtracting excess intangible
drilling and development costs. Excess intangible drilling and
development costs is the regular intangible drilling and development
costs deduction minus the amount that would have been deducted under 120
month straight-line amortization, or (at the taxpayer's election) under
the cost depletion method. There is no preference for costs of
nonproductive wells and the preference for intangible drilling and
development costs for productive wells is computed separately for each
property. Taxpayers can elect to amortize the year's intangible drilling
and development costs for productive wells ratably over a 60 month
period for all tax purposes and then such costs are not treated as an
item of tax preference. The passive loss disallowance is determined
after all preferences ad adjustments have been computed, so the
suspended loss amount may be different for minimum and regular tax
purposes. I.R.C. 58(b).
The likelihood of a Participant incurring, or increasing, any minimum
tax liability by virtue of an investment in the Partnership, and the
impact of such liability on his personal tax situation, must be
determined on an individual basis, and requires consultation by a
prospective Participant with his personal tax advisor.
Limitations on Deduction of Investment Interest
Investment interest is deductible by a noncorporate taxpayer only to
the extent of net investment income each year (with an indefinite
carryforward of disallowed investment interest). I.R.C. 163. Interest
subject to the limitation generally includes all interest (except
consumer interest and qualified residence interest) on debt not incurred
in a person's active trade or business, provided the activity is not a
"passive activity" under the passive loss rule. Accordingly, an Investor
General Partner's allocable share of any interest expense incurred by
the Partnership, will be subject to the investment interest limitation.
In addition, an Investor General Partner's income and losses (including
intangible drilling and development costs) from the Partnership will be
considered investment income and losses for purposes of this limitation.
Losses allocable to an Investor General Partner will reduce his net
investment income and may affect the deductibility of his investment
interest expense, if any.
Net investment income is the excess of investment income over
investment expenses. Investment income includes: gross income from
interest, dividends, rents, and royalties; portfolio income under the
passive activity rules (which includes working capital investment income
and possibly royalty income of the Partnership, if any, in the case of
Limited Partners); and income from a trade or business in which the
taxpayer does not materially participate if the activity is not a
"passive activity" under the passive loss rule (which includes the
Partnership, at least prior to the conversion of Investor General
Partner Units to Limited Partner interests, in the case of Investor
General Partners). Gain from the disposition of investment property
generally is not included unless the taxpayer elects to reduce the
amount of net capital gain that qualifies for the 28% ceiling.
Investment expenses include deductions (other than interest) that are
directly connected with the production of net investment income
(including actual depreciation or depletion deductions allowable). No
item of income or expense subject to the passive activity loss rules of
469 of the Code is treated as investment income or investment expense.
In determining deductible investment expenses, investment expenses
are subject to a rule limiting deductions for miscellaneous expenses to
those exceeding 2% of adjusted gross income, however, expenses that are
not investment expenses are intended to be disallowed before any
investment expenses are disallowed.
Allocations
The Partnership Agreement allocates to each Partner his share of the
income, gains, credits and deductions (including the deductions for
intangible drilling and development costs and depreciation) generated by
the Partnership. Allocations of certain items are made in ratios that
are different than allocations of other items. (See "Participation in
Costs and Revenues" in the Prospectus.) The Capital Accounts of the
Partners are adjusted to reflect such allocations and the Capital
Accounts, as adjusted, will be given effect in distributions made to the
Partners upon liquidation of the Partnership or any Partner's interest
in the Partnership. Generally, the basis of oil and gas properties owned
by the Partnership for computation of cost depletion and gain or loss on
disposition will be allocated and reallocated when necessary in the
ratio in which the expenditure giving rise to the tax basis of each
property was charged as of the end of the year. [Partnership Agreement,
5.03(b).]
Special allocations (those made in a manner that is disproportionate
to the respective interests of the partners in a partnership), among
partners of any item of partnership income, gain, loss, deduction or
credit will not be given effect unless the special allocation has
"substantial economic effect." I.R.C. 704(b). An allocation generally
will have economic effect if throughout the term of the partnership:
(1) the partners' capital accounts are maintained in accordance
with rules set forth in the regulations (generally, tax
accounting principles);
(2) liquidation proceeds are distributed in accordance with the
partners' capital accounts; and
(3) any partner with a deficit balance in his capital account
following the liquidation of his interest in the partnership is
required to restore the amount of the deficit for distribution
to partners with positive capital account balances or to be paid
to creditors.
Generally, a Participant's Capital Account is increased by the amount of
money he contributes to the Partnership and allocations to him of income
and gain, and decreased by the value of property or cash distributed to
him and allocations to him of loss and deductions. The regulations also
require that there must be a reasonable possibility that the allocation
will affect substantially the dollar amounts to be received by the
partners from the partnership, independent of tax consequences.
Although Participants are not required to restore deficit balances in
their Capital Accounts beyond the amount of their agreed Capital
Contributions, an allocation which is not attributable to nonrecourse
debt will be considered to have economic effect to the extent it does
not cause or increase a deficit balance in a Participant's Capital
Account, if requirements (1) and (2) described above are met and the
partnership agreement provides that a partner who unexpectedly incurs a
deficit balance in his Capital Account because of certain adjustments,
allocations, or distributions will be allocated income and gain
sufficient to eliminate such deficit balance as quickly as possible.
Treas. Reg. 1.704-l(b)(2)(ii)(d). (See 5.03(h) of the Partnership
Agreement.)
In the event of a sale or transfer of a Partnership Unit or the
admission of an additional Participant, Partnership income, gain, loss,
deductions and credits generally will be allocated among the Partners on
a daily basis according to their varying interests in the Partnership
during the taxable year. In addition, in the discretion of the Managing
General Partner Partnership property may be revalued upon the admission
of additional Participants, or if certain distributions are made to the
Partners, to reflect unrealized income, gain, loss or deduction inherent
in the Partnership's property for purposes of adjusting the Partners'
Capital Accounts. It should be noted that a reduction in a
Participant's interest in the Partnership upon the admission of
additional Participants could be viewed by the IRS as a deemed sale or
exchange by the Participant of his share of "751 assets" under 751 of
the Code, which provides that to the extent a partner receives
partnership property, including money, in exchange for all or part of
his interest in the partnership's unrealized receivables, which includes
any intangible drilling and development costs, depletion and cost
recovery deductions recapture, and inventory items ("751 assets"), the
transaction will be considered a sale or exchange of the property
between the partner and the partnership. In Rev. Rul. 84-102, 1984-2
C.B. 119, the IRS ruled that upon the admission of a new partner to an
existing partnership having both unrealized receivables and liabilities
outstanding, the existing partners were considered to have received
distributions to which 751(b) applies and were taxable on the gain
resulting from such deemed sale.
It should also be noted that each Partner's share of Partnership
items of income, gain, loss, deduction and credit must be taken into
account whether or not there is any distributable cash. A Participant's
share of Partnership revenues applied to the repayment of loans or the
reserve for plugging wells will be included in his gross income in a
manner analogous to an actual distribution of the income to him. Thus, a
Participant may have taxable income from the Partnership for a
particular year in excess of any cash distributions from the Partnership
to him with respect to that year. To the extent the Partnership has cash
available for distribution, however, it is Atlas' policy that
Partnership distributions will not be less than the Participants'
estimated income tax liability with respect to Partnership income.
No assurance can be given that, on audit, the IRS will not take the
position that a portion of the deductions allocable to the Participants
is not allowable to them. If such a position is taken, there can be no
assurance that any resulting deficiency will not ultimately be
sustained. However, assuming the effect of the special allocations set
forth in the Partnership Agreement is substantial in light of a
Participant's tax attributes that are unrelated to the Partnership, in
the opinion of Special Counsel it is more likely than not that such
allocations will have "substantial economic effect" and will govern each
Participant's distributive share of such items to the extent such
allocations do not cause or increase deficit balances in the
Participants' Capital Accounts.
If any allocation under the Partnership Agreement is not recognized
for federal income tax purposes, each Participant's distributive share
of the items subject to such allocation generally will be determined in
accordance with his interest in the Partnership, determined by
considering relevant facts and circumstances. To the extent such
deductions as allocated by the Partnership Agreement, exceed deductions
which would be allowed pursuant to such a reallocation, Participants may
incur a greater tax burden.
"At Risk" Limitation For Losses
Subject to the limitations on "passive losses" generated by the
Partnership in the case of Limited Partners and a Participant's basis in
the Partnership, each Participant may use his share of the Partnership's
losses to offset income from other sources. (See "- Limitations on
Passive Activities" and "- Tax Basis of Participants' Interests,"
above.) However, any taxpayer (other than a corporation which is neither
an S corporation nor a corporation in which five or fewer individuals
own more than 50% of the stock) who sustains a loss in connection with
his oil and gas activities may deduct such loss only to the extent of
the amount he has "at risk" in such activities at the end of a taxable
year. In determining whether five or fewer individuals own 50% or more
of the stock of a corporation, the attribution rules of 544 apply. The
"at risk" limitation applies to each activity engaged in and not on an
aggregate basis for all activities. The amount "at risk" is limited to
the amount of money and the adjusted basis of other property the
taxpayer has contributed to the activity, and any amount he has borrowed
with respect thereto for which he is personally liable or with respect
to which he has pledged property other than property used in the
activity; limited, however, to the net fair market value of his
interest in such pledged property. I.R.C. 465(b)(1) and (2). However,
amounts borrowed will not be considered "at risk" if such amounts are
borrowed from any person who has an interest (other than as a creditor)
in such activity or from a related person to a person (other than the
taxpayer) having such an interest.
"Loss" is defined as being the excess of allowable deductions for a
taxable year from an activity over the amount of income actually
received or accrued by the taxpayer during such year from the activity.
The amount the taxpayer has "at risk" may not include the amount of any
loss that the taxpayer is protected against through nonrecourse loans,
guarantees, stop loss agreements, or other similar arrangements. The
amount of any such loss that is disallowed in any taxable year will be
carried over to the first succeeding taxable year, to the extent a
Participant is "at risk." Further, a taxpayer's "at risk" amount in
subsequent taxable years with respect to the activity involved will be
reduced by that portion of the loss which is allowable as a deduction.
Participants' Agreed Subscriptions are funded by a payment of cash
(usually "at risk"). Since income, gains, losses, and distributions of
the Partnership affect the amount considered to be "at risk," the extent
to which a Participant is "at risk" must be determined annually.
Further, conversion from recourse to nonrecourse liability would reduce
the amount "at risk" and could result in taxable income to the
Participant. Previously allowed losses must be recaptured (included in
gross income) when the "at risk" amount is reduced below zero. However,
the amount recaptured is limited by the amount the taxpayer's "at risk"
amount is reduced below zero, with special computations to reflect
previously recaptured losses. The amount included in income under this
recapture provision may be deducted in the first succeeding taxable year
to the extent of any increase in the amount which the Participant has
"at risk."
Partnership Borrowings
Under the Partnership Agreement, the Managing General Partner and its
Affiliates may make loans to the Partnership. The use of Partnership
revenues taxable to Participants to repay Partnership borrowing will
create income tax liability for such Participants in excess of cash
distributions to them, since repayments of principal are not deductible
for federal income tax purposes, and deductions for payment of interest
will be subject to the "investment interest" and "passive loss"
limitations previously discussed. In addition, interest paid (or imputed
at the applicable Federal rate) on such loans will not be deductible
unless such loans are bona fide loans that will not be treated as
Capital Contributions. In Revenue Ruling 72-135, 1972-1 C.B. 200, the
IRS ruled that a nonrecourse loan from a general partner to a limited
partner or to a partnership engaged in oil and gas exploration
represented a capital contribution by the general partner rather than a
loan. Whether a "loan" to the Partnership represents in substance, debt
or equity is a question of fact to be determined from all the
surrounding facts and circumstances. (See Kingbay v. Commissioner, 46
T.C. 147 (1966); Hambuechen v. Commissioner, 43 T.C. 90 (1964).)
Partnership Organization and Syndication Fees
Expenses connected with the issuance and sale of interests in a
partnership (i.e., promotional expense, selling expense, commissions,
professional fees and printing costs) are not deductible. Further,
except for certain expenses, amounts incurred to organize a partnership
may not be claimed as deductions under the partnership provisions of the
Code. However, expenses incident to the creation of a partnership which
are chargeable to capital account and which, if expended in connection
with the creation of a partnership having an ascertainable life, would
be amortized over that period of time, may be deducted and amortized
over a period of not less than 60 months. Such amortizable organization
expenses are charged 100% to the Managing General Partner as part of the
Partnership's Organization and Offering Costs and any related deductions
will be allocated to the Managing General Partner.
Tax Elections
The Code permits partnerships to elect to adjust the basis of
partnership property on the transfer of an interest in a partnership by
sale or exchange or on the death of a partner, and on the distribution
of property by the partnership to a partner (the 754 election). The
general effect of such an election is that transferees of the
partnership interests are treated, for purposes of depreciation and
gain, as though they had acquired a direct interest in the partnership
assets and the partnership is treated for such purposes, upon certain
distributions to partners, as though it had newly acquired an interest
in the partnership assets and therefore acquired a new cost basis for
such assets. Any such election, once made, may not be revoked without
the consent of the IRS. The Partnership Agreement, 5.04(d), provides
that the Partnership may make the 754 election. The Partnership may
also make various elections for federal tax reporting purposes which
could result in various items of income, gain, loss, deduction and
credit being treated differently for tax purposes than for accounting
purposes.
Code 195 permits taxpayers to elect to capitalize and amortize
"start-up expenditures" over a 60-month period. Such items include
amounts: (1) paid or incurred in connection with: (i) investigating the
creation or acquisition of an active trade or business, (ii) creating an
active trade or business, or (iii) any activity engaged in for profit
and for the production of income before the day on which the active
trade or business begins, in anticipation of such activity becoming an
active trade or business; and (2) which would be allowed as a deduction
if paid or incurred in connection with the expansion of an existing
business. Start-up expenditures do not include amounts paid or incurred
in connection with the sale of partnership interests. If it is
ultimately determined that any of the Partnership's expenses constituted
start-up expenditures and not deductible expenses under 162, the
Partnership's deductions would be reduced.
Disallowance of Deductions Under Section 183 of the Code
Under 183 of the Code, a Participant's ability to deduct his share
of the Partnership's losses on his federal income tax return could be
lost if the Partnership lacks the appropriate profit motive as
determined from an examination of all facts and circumstances at the
time. Section 183 creates a presumption that an activity is engaged in
for profit, if, in any three of five consecutive taxable years, the
gross income derived from such activity exceeds the deductions
attributable to such activity. Thus, if the Partnership fails to show a
profit in at least three out of five consecutive years, this presumption
will not be available. In that instance, the possibility that the IRS
could successfully challenge the deductions claimed by a Participant
would be substantially increased.
The fact that the possibility of ultimately obtaining profits is
uncertain, standing alone, does not appear to be sufficient grounds for
the denial of losses under 183. (See Treas. Reg. 1.183-2(c), Example
(5).) Based on Atlas' representation that the Partnership will be
conducted as described in the Prospectus, in the opinion of Special
Counsel it is more likely than not that the Partnership will possess the
requisite profit motive.
Termination of a Partnership
Pursuant to 708(b) of the Code, a partnership will be considered as
terminated for federal income tax purposes if within a twelve month
period there is a sale or exchange of 50% or more of the total interest
in partnership capital and profits. The closing of the partnership year
may result in more than twelve months' income or loss of the partnership
being allocated to certain partners for the year of termination (i.e.,
in the case of partners using fiscal years other than the calendar
year). Under 731 of the Code, a partner will realize taxable gain on a
termination of the partnership to the extent that money regarded as
distributed to him exceeds the adjusted basis of his partnership
interest. The conversion of Investor General Partner Units to Limited
Partner interests will not result in a termination of the Partnership
under 708 of the Code. Rev. Rul. 84-52, 1984-1 C.B. 157.
Lack of Registration as a Tax Shelter
Section 6111 of the Code generally requires an organizer of a "tax
shelter" to register the tax shelter with the Secretary of the Treasury,
and to obtain an identification number which must be included on the tax
returns of investors in such a tax shelter. For purposes of these
provisions, a "tax shelter" is generally defined to include investments
with respect to which any person could reasonably infer that the ratio
that (1) the aggregate amount of the potentially allowable deductions
and 350% of the potentially allowable credits with respect to the
investment during the first five years of the investment bears to (2)
the amount of money and the adjusted basis of property contributed to
the investment exceeds 2 to 1. Temporary Regulations promulgated by the
IRS provide that the aggregate amount of gross deductions must be
considered and determined without reduction for gross income derived, or
to be derived, from the investment.
Atlas does not believe that the Partnership will have a tax shelter
ratio greater than 2 to 1. Also, because the purpose of the Partnership
is to locate, produce and market natural gas on an economic basis, Atlas
does not believe that the Partnership will be a "potentially abusive tax
shelter." Accordingly, Atlas does not intend to cause the Partnership to
register with the IRS as a tax shelter.
If it is subsequently determined that the Partnership was required to
be registered with the IRS as a tax shelter, Atlas would be subject to
certain penalties, including a penalty of 1% of the aggregate amount
invested in the Units of the Partnership for failing to register and
$100 for each failure to furnish a Participant a tax shelter
registration number, and each Participant would be liable for a $250
penalty for failure to include the tax shelter registration number on
his tax return, unless such failure was due to reasonable cause. A
Participant also would be liable for a penalty of $100 for failing to
furnish the tax shelter registration number to any transferee of his
interest in the Partnership. However, based on the representations of
the Managing General Partner, Special Counsel has expressed the opinion
that the Partnership, more likely than not, is not required to register
with the IRS as a tax shelter.
Issuance of a registration number does not indicate that an
investment or the claimed tax benefits have been reviewed, examined, or
approved by the IRS.
Investor Lists
Section 6112 of the Code requires that any person who organizes a tax
shelter required to be registered with the IRS or who sells any interest
in such a shelter must maintain a list identifying each person who was
sold an interest in the shelter and setting forth other required
information. For the reasons described above, Atlas does not believe the
Partnership is subject to the requirements of 6112 If this
determination is wrong, 6708 of the Code provides for a penalty of $50
for each person with respect to whom there is a failure to meet any
requirements of 6112, unless the failure is due to reasonable cause.
Tax Returns and Audits
In General. The tax treatment of all partnership items is generally
determined at the partnership, rather than the partner, level; and the
partners are generally required to treat partnership items on their
individual returns in a manner which is consistent with the treatment of
such partnership items on the partnership return. I.R.C. 6221 and
6222. Regulations define "partnership items" for this purpose as
including distributive share items that must be allocated among the
partners, such as partnership liabilities, data pertaining to the
computation of the depletion allowance, and guaranteed payments. Treas.
Reg. 301.6231(a)(3)-1.
Generally, the IRS must conduct an administrative determination as to
partnership items at the partnership level before conducting deficiency
proceedings against a partner, and the partners must file a request for
an administrative determination before filing suit for any credit or
refund. The period for assessing tax against a Partner attributable to a
partnership item may be extended as to all partners by agreement between
the IRS and Atlas, which will serve as the Partnership's representative
("Tax Matters Partner") in all administrative and judicial proceedings
conducted at the partnership level. The Tax Matters Partner generally
may enter into a settlement on behalf of, and binding upon, partners
owning less than a 1% profits interest in partnerships having more than
100 partners. By executing the Partnership Agreement, each Participant
agrees that he will not form or exercise any right as a member of a
notice group and will not file a statement notifying the IRS that the
Tax Matters Partner does not have binding settlement authority.
In the event of an audit of the return of the Partnership, the Tax
Matters Partner, pursuant to advice of counsel, will take all actions
necessary, in its discretion, to preserve the rights of the
Participants. All expenses of such proceedings undertaken by the Tax
Matters Partner, which might be substantial, will be paid for by the
Partnership. The Tax Matters Partner is not obligated to contest
adjustments made by the IRS.
Tax Returns. The preparation and filing of each Participant's federal,
state and local income tax returns are the responsibility of the
Participant. The Partnership will provide each Participant with the tax
information applicable to his investment in the Partnership necessary to
prepare such returns; however, the treatment of the tax attributes of
the Partnership may vary among Participants. The Managing General
Partner, its Affiliates and Special Counsel assume no responsibility for
the tax consequences of this transaction to a Participant, nor for the
disallowance of any proposed deductions. EACH PARTICIPANT IS URGED TO
SEEK QUALIFIED, PROFESSIONAL ASSISTANCE IN THE PREPARATION OF HIS
FEDERAL, STATE AND LOCAL TAX RETURNS.
Penalties and Interest
In General. Interest (based on the applicable Federal short-term rate
plus 3 percentage points) is charged on underpayments of tax and various
civil and criminal penalties are included in the Code.
Penalty for Negligence or Disregard of Rules or Regulations. If any
portion of an underpayment of tax is attributable to negligence or
disregard of rules or regulations, 20% of such portion is added to the
tax. Negligence is strongly indicated if a partner fails to treat
partnership items on his tax return in a manner that is consistent with
the treatment of such items on the partnership's return or to notify the
IRS of the inconsistency. The term "disregard" includes any careless,
reckless or intentional disregard of rules or regulations. There is no
penalty, however, if the position is adequately disclosed, or the
position is taken with reasonable cause and in good faith, or the
position has a realistic possibility of being sustained on its merits.
Treas. Reg. 1.6662-3.
Valuation Misstatement Penalty. There is an addition to tax of 20% of
the amount of any underpayment of tax of $5,000 or more ($10,000 in the
case of corporations other than S corporations or personal holding
companies) which is attributable to a substantial valuation
misstatement. There is a substantial valuation misstatement if the value
or adjusted basis of any property claimed on a return is 200% or more of
the correct amount; or if the price for any property or services (or for
the use of property) claimed on a return is 200% or more (or 50% or
less) of the correct price. If there is a gross valuation misstatement
(400% or more of the correct value or adjusted basis or the
undervaluation is 25% or less of the correct amount) the penalty is 40%.
I.R.C. 6662(e) and (h).
Substantial Understatement Penalty. There is also an addition to tax
of 20% of any underpayment if the difference between the tax required
to be shown on the return over the tax actually shown on the return,
exceeds the greater of 10% of the tax required to be shown on the
return, or $5,000 ($10,000 in the case of corporations other than S
corporations or personal holding companies). I.R.C. 6662(d). The
amount of any understatement generally will be reduced to the extent it
is attributable to the tax treatment of an item supported by substantial
authority, or adequately disclosed on the taxpayer's return. However, in
the case of "tax shelters," the understatement may be reduced only if
the tax treatment of an item attributable to a tax shelter was supported
by substantial authority and the taxpayer reasonably believed that the
tax treatment claimed was more likely than not the proper treatment.
Disclosure of partnership items should be made on the Partnership's
return; however, a taxpayer partner also may make adequate disclosure on
his individual return with respect to pass-through items. Section
6662(d)(2)(C) provides that a "tax shelter" is any entity which has as
its principal purpose the avoidance or evasion of federal income tax.
Assuming the Partnership is conducted as set forth in the Prospectus, in
the opinion of Special Counsel it is more likely than not that the
Partnership will not be characterized as a tax shelter for purposes of
the substantial understatement of income tax penalty.
IRS Anti-Abuse Rule. Under Treas. Reg. 1.701-2, if a principal purpose
of a partnership is to reduce substantially the partners' federal income
tax liability in a manner that is inconsistent with the intent of the
partnership rules of the Code, based on all the facts and circumstances,
the IRS is authorized to remedy the abuse. For illustration purposes,
the following factors may indicate that a partnership is being used in a
prohibited manner: (i) the partners' aggregate federal income tax
liability is substantially less than had the partners owned the
partnership's assets and conducted its activities directly; (ii) the
partners' aggregate federal income tax liability is substantially less
than if purportedly separate transactions are treated as steps in a
single transaction; (iii) one or more partners are needed to achieve the
claimed tax results and have a nominal interest in the partnership or
are substantially protected against risk; (iv) substantially all of the
partners are related to each other; (v) income or gain are allocated to
partners who are not expected to have any federal income tax liability;
(vi) the benefits and burdens of ownership of property nominally
contributed to the partnership are related in substantial part by the
contributing party; and (vii) the benefits and burdens of ownership of
partnership property are in substantial part shifted to the distributee
partners before or after the property is actually distributed to the
distributee partners. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in
the Prospectus, in the opinion of Special Counsel it is more likely than
not that the Partnership will not be subject to the anti-abuse rule set
forth in Treas. Reg. 1.701-2.
State and Local Taxes
The Partnership will operate in states and localities which impose a
tax on its assets or its income, or on each Participant. Deductions
which are available to Participants for federal income tax purposes may
not be available for state or local income tax purposes. A Participant's
distributive share of the net income or net loss of the Partnership
generally will be required to be included in determining his reportable
income for state or local tax purposes in the jurisdiction in which he
is a resident. To the extent that a non-resident Participant pays tax to
a state by virtue of Partnership operations within that state, he may be
entitled to a deduction or credit against tax owed to his state of
residence with respect to the same income. To the extent that the
Partnership operates in certain jurisdictions, state or local estate or
inheritance taxes may be payable upon the death of a Participant in
addition to taxes imposed by his own domicile.
Under Pennsylvania law, the Partnership is required to withhold state
income tax at the rate of 2.8% of Partnership income allocable to
Participants who are not residents of Pennsylvania. This requirement
does not obviate Pennsylvania tax return filing requirements for
Participants who are not residents of Pennsylvania. In the event of
overwithholding, a Pennsylvania income tax return must be filed by
Participants who are not residents of Pennsylvania in order to obtain a
refund. Prospective Participants should consult with their own tax
advisors concerning the possible effect of various state and local taxes
on their personal tax situations.
Severance, Franchise, and Ad Valorem (Real Estate) Taxes
The Partnership may incur various ad valorem or severance taxes
imposed by state or local taxing authorities. Currently, there is no
such tax liability in Mercer County, Pennsylvania.
Social Security Benefits and Self-Employment Tax
A Limited Partner's share of income or loss from the Partnership is
excluded from the definition of "net earnings from self-employment." No
increased benefits under the Social Security Act will be earned by
Limited Partners and if any Limited Partners are currently receiving
Social Security benefits, their shares of Partnership taxable income
will not be taken into account in determining any reduction in benefits
because of "excess earnings." An Investor General Partner's share of
income or loss from the Partnership will constitute "net earnings from
self-employment" for these purposes. I.R.C. 1402(a). For 1997 the
ceiling for social security tax of 12.4% is $65,400 and there is no
ceiling for medicare tax of 2.9%. Self-employed individuals can deduct
one-half of their self-employment tax.
Foreign Partners
The Partnership will be required to withhold and pay to the IRS tax
at the highest rate under the Code applicable to Partnership income
allocable to foreign partners, even if no cash distributions are made to
such partners. A purchaser of a foreign Partner's Units may be required
to withhold a portion of the purchase price and the Managing General
Partner may be required to withhold with respect to taxable
distributions of real property to a foreign Partner. The withholding
requirements described above do not obviate United States tax return
filing requirements for foreign Partners. In the event of
overwithholding, a foreign Partner must file a United States tax return
to obtain a refund.
Estate and Gift Taxation
There is no federal tax on lifetime or testamentary transfers of
property between spouses. The gift tax annual exclusion is $10,000 per
donee. The maximum estate and gift tax rate is 55% (subject to a 5%
surtax on amounts in excess of $10,000,000); and estates of $600,000 or
less generally are not subject to federal estate tax. In the event of
the death of a Participant, the fair market value of his interest as of
the date of death (or as of the alternate valuation date) will be
included in his estate for federal estate tax purposes. The decedent's
heirs will, for federal income tax purposes, take as their basis for the
interest the value as so determined for federal estate tax purposes.
Changes in Law
The Partnership and the Participants could be adversely affected by
any further changes in tax laws that may result through future
Congressional action, Tax Court or other judicial decisions, or
interpretations by the IRS. It is impossible to predict what, if any,
changes in the tax law may become law in the future or even if adopted,
would apply to the Partnership.
IT IS NOT POSSIBLE FOR US TO PREDICT THE EFFECT OF THE TAX LAWS ON
INDIVIDUAL PARTICIPANTS. EACH PARTICIPANT IS URGED TO SEEK, AND SHOULD
DEPEND UPON, THE ADVICE OF HIS OWN TAX ADVISORS WITH RESPECT TO HIS
INVESTMENT IN THE PARTNERSHIP WITH SPECIFIC REFERENCE TO HIS OWN TAX
SITUATION AND POTENTIAL CHANGES IN THE APPLICABLE LAW.
We consent to the use of this opinion letter as an exhibit to the
Registration Statement, and all amendments thereto, and to all
references to this firm in the Prospectus.
Very truly yours,
KUNZMAN & BOLLINGER, INC.
Kunzman & Bollinger, Inc.
ATTORNEYS-AT-LAW
5100 N. BROOKLINE, SUITE 600
OKLAHOMA CITY, OKLAHOMA 73112
Telephone (405) 942-3501
Fax (405) 942-3527
Exhibit 8
July 21, 1997
Atlas Resources, Inc.
311 Rouser Road
Moon Township, Pennsylvania 15108
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
Gentlemen:
You have requested our opinions on the material federal income tax
issues pertaining to Atlas-Energy for the Nineties-Public #6 Ltd. (the
"Partnership"), a limited partnership formed under the Revised Uniform
Limited Partnership Act of Pennsylvania. We have acted as Special
Counsel to the Partnership with respect to the offering of interests in
the Partnership. Atlas Resources, Inc. ("Atlas") will be the Managing
General Partner of the Partnership. Terms used and not otherwise defined
herein have the respective meanings assigned to them in the Prospectus
under the caption "DEFINITIONS."
Basis of Opinion
Our opinions are based upon our review of: (1) a certain Registration
Statement on Form SB-2 for Atlas-Energy for the Nineties-Public #6 Ltd.,
as originally filed with the United States Securities and Exchange
Commission, and amendments thereto, including the Prospectus, the
Drilling and Operating Agreement and the Amended and Restated
Certificate and Agreement of Limited Partnership for the Partnership
(the "Partnership Agreement") included as exhibits to the Prospectus;
and (2) such corporate records, certificates, agreements, instruments
and other documents as we have deemed relevant and necessary to review
as a basis for the opinions herein provided.
Our opinions also are based upon our interpretation of existing
statutes, rulings and regulations, as presently interpreted by judicial
and administrative bodies. Such statutes, rulings, regulations and
interpretations are subject to change; and such changes could result in
different tax consequences than those set forth herein and could render
our opinions inapplicable.
In rendering our opinions, we have obtained from you certain
representations with respect to the Partnership. Any material inaccuracy
in such representations may render our opinions inapplicable. Included
among such representations are the following:
(1) The Partnership Agreement to be entered into by and
among Atlas, as Managing General Partner, and the
Participants will be duly executed by all parties
thereto. The Partnership Agreement will be duly recorded
in all places required under the Revised Uniform Limited
Partnership Act of Pennsylvania for the due formation of
the Partnership and for the continuation thereof in
accordance with the terms of the Partnership Agreement.
The Partnership will at all times be operated in
accordance with the terms of the Partnership Agreement,
the Prospectus, and the Revised Uniform Limited
Partnership Act of Pennsylvania.
(2) No election will be made by the Partnership or any
Partner for the Partnership to be excluded from the
application of the provisions of Subchapter K of the
Code or classified as a corporation for tax purposes.
(3) The Partnership will own record or legal title to the Working
Interest in all of its Prospects.
(4) The respective amounts that will be paid to Atlas or its Affiliates
pursuant to the Partnership Agreement and the Drilling and Operating
Agreement are amounts that would ordinarily be paid for similar services
in similar transactions between Persons having no affiliation and
dealing with each other "at arms' length."
(5) The Partnership will elect to deduct currently all intangible
drilling and development costs.
(6) The Partnership will have a calendar year taxable year.
(7) The Drilling and Operating Agreement and any amendments thereto
entered into by and between Atlas and the Partnership will be duly
executed and will govern the drilling and, if warranted, the completion
and operation of the wells in accordance with its terms.
(8) Based upon Atlas' review of its previous drilling programs for the
past several years and upon the intended operations of the Partnership,
Atlas reasonably believes that the aggregate deductions, including
depletion deductions, and 350% of the aggregate credits, if any, which
will be claimed by Atlas and the Participants, will not during the first
five tax years following the funding of the Partnership exceed twice the
amounts invested by Atlas and the Participants, respectively.
(9) The Investor General Partner Units will not be converted to Limited
Partner interests before substantially all of the Partnership Wells have
been drilled and completed.
(10) The Units will not be traded on an established securities
market.
In rendering our opinions we have further assumed that (1) each of
the Participants has an objective to carry on the business of the
Partnership for profit; (2) any amount borrowed by a Participant and
contributed to the Partnership will not be borrowed from a Person who
has an interest in the Partnership (other than as a creditor) or a
related person, as defined in 465 of the Code, to a person (other than
the Participant) having such interest and such Participant will be
severally, primarily, and personally liable for such amount; and (3) no
Participant will have protected himself from loss for amounts
contributed to the Partnership through nonrecourse financing,
guarantees, stop loss agreements or other similar arrangements.
We have considered the provisions of the American Bar Association's
Revised Formal Opinion 346 on Tax Law Opinions ("ABA Opinion 346") and
31 CFR, Part 10, 10.33 (Treasury Department Circular No. 230) on tax
law opinions and we believe that this opinion letter addresses all
material federal income tax issues associated with an investment in the
Units by an individual Participant who is a resident citizen of the
United States. We consider material those issues which would affect
significantly a Participant's deductions, credits or losses arising from
his investment in the Units and with respect to which, under present
law, there is a reasonable possibility of challenge by the IRS, or those
issues which are expected to be of fundamental importance to a
Participant but as to which a challenge by the IRS is unlikely. The
issues which involve a reasonable possibility of challenge by the IRS
have not been definitely resolved by statute, rulings or regulations, as
interpreted by judicial or administrative bodies.
Subject to the foregoing, however, in our opinion it is more likely
than not that the following tax treatment will be upheld if challenged
by the IRS and litigated:
Partnership Classification. The Partnership will be classified as a
partnership for federal income tax purposes, and not as an association
taxable as a corporation; the Partnership, as such, will not pay any
federal income taxes, and all items of income, gain, loss, deduction,
and credit of the Partnership will be reportable by the Partners in the
Partnership. (See "- Partnership Classification.")
Intangible Drilling and Development Costs. Intangible drilling and
development costs paid by the Partnership under the terms of bona fide
drilling contracts for the Partnership's wells will be deductible in the
taxable year in which the payments are made and the drilling services
are rendered, assuming such amounts are fair and reasonable
consideration and subject to certain restrictions summarized below
(including basis and "at risk" limitations and the passive activity loss
limitation with respect to the Limited Partners). (See "- Intangible
Drilling and Development Costs" and "- Drilling Contracts.")
Prepayments of Intangible Drilling and Development Costs. Depending
primarily on when the Partnership Subscription is received, it is
anticipated that the Partnership will prepay in 1997 most, if not all,
of the intangible drilling and development costs related to Partnership
Wells the drilling of which will be commenced in 1998. Assuming that
such amounts are fair and reasonable, and based in part on the factual
assumptions set forth below, in our opinion such prepayments of
intangible drilling and development costs will be deductible for the
1997 taxable year even though all Working Interest owners in the well
may not be required to prepay such amounts, subject to certain
restrictions summarized in "Tax Aspects" (including basis and "at risk"
limitations, and the passive activity loss limitation with respect to
the Limited Partners). (See "- Drilling Contracts", below.)
The foregoing opinion is based in part on the assumptions that: (1)
such costs will be required to be prepaid in 1997 for specified wells
pursuant to the Drilling and Operating Agreement; (2) pursuant to the
Drilling and Operating Agreement the wells are required to be, and
actually are, Spudded on or before March 31, 1998, and continuously
drilled thereafter until completed, if warranted, or abandoned; and (3)
the required prepayments are not refundable to the Partnership and any
excess prepayments are applied to intangible drilling and development
costs of substitute wells.
Not a Publicly Traded Partnership. Assuming that no more than 10% of
the Units are transferred in any taxable year of the Partnership (other
than in private transfers described in Treas. Reg. 1.7704-1(e)), it is
more likely than not that the Partnership will not be treated as a
"publicly traded partnership" under the Code. (See "- Limitations on
Passive Activities".)
Passive Activity Classification. Oil and gas production income
generated by the Partnership's oil and gas properties held as Working
Interests, together with gain, if any, from the disposition of such
properties and allocable to Limited Partners who are individuals,
estates, trusts, closely held corporations or personal service
corporations more likely than not will be characterized as income from a
passive activity which may be offset by passive activity losses (as
defined in 469(d) of the Code). Income or gain attributable to
investments of working capital of the Partnership will be characterized
as portfolio income, which cannot be offset by passive activity losses.
To the extent the Partnership's oil and gas properties are held as
Working Interests, it is more likely than not that the passive activity
limitations on losses under 469 will not be applicable to Investor
General Partners prior to the conversion of Investor General Partner
Units to Limited Partner interests. (See "- Limitations on Passive
Activities.")
Tax Basis of Participant's Interest. Each Participant's adjusted tax
basis in his Partnership interest will be increased by his total Agreed
Subscription. (See "- Tax Basis of Participants' Interests.")
At Risk Limitation on Losses. Each Participant initially will be "at
risk" to the full extent of his Agreed Subscription. (See "- `At Risk'
Limitation For Losses.")
Depletion Allowance. The greater of cost depletion or percentage
depletion will be available to qualified Participants as a current
deduction against Partnership income from oil and gas production
revenues on properties of the Partnership, subject to certain
restrictions summarized below. (See "- Depletion Allowance.")
ACRS. The Partnership's reasonable costs for recovery property
(tangible depreciable property used in a trade or business or held for
the production of income) which cannot currently be deducted but must be
capitalized will be eligible for cost recovery deductions under the
modified Accelerated Cost Recovery System, generally over a seven year
"cost recovery period", subject to certain restrictions summarized below
(including basis and "at risk" limitations and the passive activity loss
limitation in the case of Limited Partners). (See "- Depreciation
Accelerated Cost Recovery System.")
Availability of Certain Deductions. Business expenses, including
payments for personal services actually rendered in the taxable year in
which accrued, which are reasonable, ordinary and necessary and do not
include amounts for items such as Lease acquisition costs, organization
and syndication fees and other items which are required to be
capitalized, are currently deductible. (See "- 1997 Expenditures", "
Availability of Certain Deductions" and "- Partnership Organization and
Syndication Fees.")
Allocations. Assuming the effect of the allocations of income, gain,
loss, deduction and credit (or items thereof) set forth in the
Partnership Agreement, including the allocations of basis and amount
realized with respect to oil and gas properties, is substantial in light
of a Participant's tax attributes that are unrelated to the Partnership,
it is more likely than not that such allocations will have "substantial
economic effect" and will govern each Participant's distributive share
of such items to the extent such allocations do not cause or increase
deficit balances in the Participants' Capital Accounts. (See "
Allocations.")
Agreed Subscription. No gain or loss will be recognized by the
Participants on payment of their Agreed Subscriptions.
Profit Motive. Based on the Managing General Partner's representation
that the Partnership will be conducted as described in the Prospectus,
it is more likely than not that the Partnership will possess the
requisite profit motive and will not be properly characterized as a tax
shelter for purposes of the tax shelter registration requirement and the
substantial understatement of income tax liability penalty. (See "
Disallowance of Deductions Under Section 183 of the Code" and "
Penalties and Interest.")
IRS Anti-Abuse Rule. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in
the Prospectus, it is more likely than not that the Partnership will not
be subject to the anti-abuse rule set forth in Treas. Reg. 1.701-2.
(See "- Penalties and Interest - IRS Anti-Abuse Rule.")
Overall Evaluation of Tax Benefits. Based on our conclusion that
substantially more than half of the material tax benefits of the
Partnership, in terms of their financial impact on a typical
Participant, more likely than not will be realized if challenged by the
IRS, it is our opinion that the tax benefits of the Partnership, in the
aggregate, which are a significant feature of an investment in the
Partnership by a typical original Participant more likely than not will
be realized as contemplated by the Prospectus. Special Counsel intends
that the foregoing "more likely than not" opinion also is a "probably
will" opinion under the standard set forth in ABA Opinion 346. The
discussion in the Prospectus under the caption "TAX ASPECTS," insofar as
it contains statements of federal income tax law, is correct in all
material respects. (See "Tax Aspects" in the Prospectus.)
* * * * * * * * * * * * *
Our opinion is limited to the opinions expressed above. With respect
to some of the matters discussed in this opinion, existing law provides
little guidance. Although our opinions express what we believe a court
would probably conclude if presented with the applicable issues, there
is no assurance that the IRS will not challenge our interpretations or
that such a challenge would not be sustained in the courts and cause
adverse tax consequences to the Participants. It should be noted that
taxpayers bear the burden of proof to support claimed deductions and
opinions of counsel are not binding on the IRS or the courts.
In General
The following is a summary of some of the principal features under
present federal income tax law which will apply to the Partnership and
typical Participants. However, there is no assurance that the present
laws or regulations will not be changed and adversely affect a
Participant. The IRS may challenge the deductions claimed by the
Partnership or a Participant, or the taxable year in which such
deductions are claimed, and no guaranty can be given that any such
challenge would not be upheld if litigated. The practical utility of the
tax aspects of any investment depends largely on the income tax position
of the particular Participant in the year in which items of income,
gain, loss, deduction or credit are properly taken into account in
computing his federal income tax liability. In addition, except as
otherwise noted, different tax considerations may apply to foreign
persons, corporations partnerships, trusts and other prospective
Participants which are not treated as individuals for federal income tax
purposes. EACH PROSPECTIVE PARTICIPANT SHOULD SATISFY HIMSELF AS TO THE
TAX CONSEQUENCES OF PARTICIPATING IN THE PARTNERSHIP BY OBTAINING ADVICE
FROM HIS OWN TAX ADVISOR.
Partnership Classification
For federal income tax purposes, a partnership is not a taxable
entity but rather a conduit through which all items of income, gain,
loss, deduction, credit and tax preference are passed through to the
partners and are required to be reported on their federal income tax
returns for the taxable years in which or with which the partnership's
taxable year ends. I.R.C. 706(a). Thus, the partners, rather than the
partnership, receive any tax deductions and credits, as well as the
income, from the operations engaged in by the partnership. It is the
opinion of Special Counsel that, under currently existing laws, rules
and regulations, all of which are subject to change with or without
retroactive application, the Partnership will be treated as a
partnership for federal income tax purposes and not as an association
taxable as a corporation. Under new regulations a business entity with
two or more members is classified for federal tax purposes as either a
corporation or a partnership. Treas. Reg. 301.7701-2(a). The term
corporation includes a business entity organized under a State statute
which describes the entity as a corporation, body corporate, body
politic, joint-stock company or joint-stock association. Treas. Reg.
301.7701-2(b). The Partnership was formed under the Pennsylvania
Revised Uniform Limited Partnership Act which describes the Partnership
as a "partnership". Consequently, the Partnership is not required to be
classified as a corporation under Treas. Reg. 301.7701-2(b) and will be
automatically classified as a partnership unless it affirmatively elects
to be classified as a corporation. In this regard, the Managing General
Partner has represented that no election for the Partnership to be
classified as a corporation will be filed with the IRS.
Limitations on Passive Activities
Under the passive activity rules, all income of a taxpayer who is
subject to the rules is categorized as: (i) income from passive
activities such as limited partners' interests in a business; (ii)
active income (e.g., salary, bonuses, etc.); or (iii) portfolio income
(e.g., dividends, royalties and interest not derived in the ordinary
course of a trade or business). Losses generated by "passive activities"
can offset only passive income and cannot be applied against active
income or portfolio income.
The passive activity rules apply to individuals, estates, trusts,
closely held C corporations (generally, if five or fewer individuals own
directly or indirectly more than 50% of the stock) and personal service
corporations (other than corporations where the owner-employees together
own less than 10% of the stock). However, a closely held C corporation
(other than a personal service corporation) may use passive losses and
credits to offset taxable income of the company figured without regard
to passive income or loss or portfolio income. Passive activities
include: (i) any trade or business in which the taxpayer does not
materially participate; and (ii) any rental activity, whether or not the
taxpayer materially participates, subject to certain exceptions.
Material participation is defined as involvement in the operations of
the activity on a regular, continuous, and substantial basis. Under the
Partnership Agreement, Limited Partners will not have material
participation in the Partnership and generally will be subject to the
passive activity rules.
A taxpayer who holds a working interest in an oil and gas property
that is burdened with the cost of developing and operating the property
is excepted from the passive activity rules, whether or not he
materially participates in the activity. However, a taxpayer who holds a
working interest directly or indirectly through an entity (e.g., a
limited partnership interest or S corporation shares) which limits the
liability of the taxpayer with respect to such interest is not treated
as owning a working interest. Consequently, the exception is not
available to Limited Partners in the Partnership, but in the opinion of
Special Counsel it is more likely than not that the exception will be
available to Investor General Partners prior to their conversion to
Limited Partners to the extent the Partnership acquires Working
Interests in its Leases, except as noted above. Contractual limitations
on the liability of Investor General Partners under the Partnership
Agreement (e.g. insurance, limited indemnification, etc.) will not
prevent Investor General Partners from claiming deductions under the
working interest exception to the passive activity loss rules.
Overriding royalties, production payments and contract rights to extract
or share in oil and gas profits without liability for a share of
production costs are excluded from the definition of a working interest.
Deductions disallowed by the at-risk limitation on losses under 465
of the Code become subject to the passive loss limitation only if the
taxpayer's at-risk amount increases in future years. A taxpayer's
at-risk amount is reduced by losses allowed under 465 even if the
losses are suspended by the passive loss limitation. (See "- `At Risk'
Limitation For Losses," below.) Similarly, a taxpayer's basis is reduced
by deductions even if the deductions are disallowed under the passive
loss limitation. (See "- Tax Basis of Participants' Interests," below.)
Suspended losses and credits may be carried forward (but not back)
and used to offset future years' passive activity income. A suspended
loss (but not a credit) is allowed in full when the entire interest is
sold to an unrelated third party in a taxable transaction and in part
upon the disposition of substantially all of the passive activity if the
suspended loss as well as current gross income and deductions can be
allocated to the part disposed of with reasonable certainty. Upon such
disposition the excess of suspended losses and any loss from the
activity for the tax year (plus any loss on the sale) over net income or
gain for the tax year from all passive activities (determined without
regard to such losses) is not treated as a passive loss. Capital losses
are limited to the amount of capital gain, plus $3,000 (in the case of
married individuals filing joint returns). I.R.C. 1211. The
capital-loss limit is applied before the determination is made of the
amount of passive losses made available by a disposition. In an
installment sale, passive losses become available in the same ratio that
gain recognized each year bears to the total gain on the sale.
Any suspended losses remaining at a taxpayer's death are allowed as
deductions on his final return, subject to a reduction to the extent the
basis of the property in the hands of the transferee exceeds the
property's adjusted basis immediately prior to the decedent's death. If
a taxpayer makes a gift of his entire interest in a passive activity,
the donee's basis is increased by any suspended losses and no deductions
are allowed. If the interest is later sold at a loss, the donee's basis
is limited to the fair market value on the date the gift was made.
Net losses and credits of a partner from each publicly traded
partnership are suspended and carried forward to be netted against
income from that publicly traded partnership only. In addition, net
losses from other passive activities may not be used to offset net
income from a publicly traded partnership. I.R.C. 469(k)(2) and 7704.
However, it is more likely than not that the Partnership will not be
characterized as a publicly traded partnership under the Code, so long
as no more than 10% of the Units are transferred in any taxable year of
the Partnership (other than in private transactions described in Treas.
Reg. 1.7704-1(e)).
Characterization of the Partnership's Income. Income (e.g., interest)
earned on working capital is treated as portfolio income which cannot be
offset with passive losses by Limited Partners. "Portfolio income"
consists of (i) interest, dividends and royalties (unless earned in the
ordinary course of a trade or business); and (ii) gain or loss not
derived in the ordinary course of a trade or business on the sale of
property that generates portfolio income or is held for investment.
In the opinion of Special Counsel, it is more likely than not that
the Partnership's income from the Leases (excluding income attributable
to investment of working capital), held as Working Interests, together
with gain, if any, from the disposition of such property, will be
characterized as passive income rather than portfolio income with
respect to Limited Partners subject to the passive activity limitations.
Conversion from Investor General Partner to Limited Partner. Investor
General Partner Units will be converted to Limited Partner interests
after substantially all of the Partnership Wells have been drilled and
completed, which is anticipated to be in the late summer of 1998.
Thereafter, each Investor General Partner will be deemed a Limited
Partner in the Partnership and will enjoy the limited liability provided
to limited partners under the Revised Uniform Limited Partnership Act of
Pennsylvania with respect to his interest in the Partnership's oil and
gas properties. Concurrently, the Investor General Partner will lose the
availability of the working interest exception to the passive activity
limitations. Except as provided below, an Investor General Partner's
conversion of his Partnership interest into a Limited Partner interest
should not have adverse tax consequences unless the Investor General
Partner's share of any Partnership liabilities is reduced as a result of
the conversion. Rev. Rul. 84-52, 1984-1 C.B. 157 and Prop. Reg.
1.1254-2. A reduction in a partner's share of liabilities is treated as
a constructive distribution of cash to such partner, which reduces the
basis of the partner's interest in the partnership and is taxable to the
extent it exceeds such basis. In addition, if a taxpayer has a loss for
a taxable year from a working interest in an oil and gas property which
is treated as a loss which is not from a passive activity, then any net
income from such property for any succeeding taxable year will be
treated as income of the taxpayer which is not from a passive activity.
Consequently, if an Investor General Partner has a non-passive loss in
1997 with respect to the Partnership's Working Interests in the Leases,
which is anticipated, any net income from a Partnership Well allocable
to such Investor General Partner in any subsequent taxable year (even
though he may then be a Limited Partner) will be characterized as
non-passive income which cannot be offset with passive losses. For this
purpose the Partnership's Wells will be deemed to include any property
the value of which is directly enhanced by any drilling, logging, or
other activities any part of the costs of which were borne by the
Investor General Partners as a result of holding the Working Interests
in the Wells (and any property the basis of which is determined in whole
or in part by reference to the basis of the property receiving the
increase in value).
Taxable Year
The Partnership intends to adopt a calendar year taxable year. I.R.C.
706(b). The taxable year of the Partnership is important to a
prospective Participant because the Partnership's deductions, income and
other items of tax significance must be taken into account in computing
the Participant's taxable income for his taxable year within or with
which the Partnership's taxable year ends. The tax year of a partnership
generally must be the tax year of one or more of its partners who have
an aggregate interest in partnership profits and capital of greater than
50%.
1997 Expenditures
It is anticipated that all of the Partnership's subscription proceeds
will be expended in 1997 and that the income and deductions generated
pursuant thereto will be reflected on the Participants' federal income
tax returns for that period. (See "Capitalization and Source of Funds
and Use of Proceeds" and "Participation in Costs and Revenues" in the
Prospectus.) Depending primarily on when the Partnership Subscription is
received, it is anticipated that the Partnership will prepay in 1997
most, if not all, of its intangible drilling and development costs for
wells the drilling of which will be commenced in 1998. The deductibility
in 1997 of such advance payments cannot be guaranteed. (See "- Drilling
Contracts", below.)
Availability of Certain Deductions
The ordinary and necessary expenses of carrying on any trade or
business, including a reasonable allowance for salaries or other
compensation for personal services actually rendered, are deductible in
the year incurred. The tests for deductibility in the case of
compensation payments are whether the payments are: (i) reasonable; and
(ii) purely for services actually rendered. Treasury Regulation
1.162-7(b)(3) provides that reasonable compensation is only such amount
as would ordinarily be paid for like services by like enterprises under
like circumstances. The Managing General Partner has represented to
counsel that the amounts payable to the Managing General Partner and its
Affiliates, including the amounts paid to Atlas or its Affiliates as
general drilling contractor, are the amounts which would ordinarily be
paid for similar services in similar transactions. (See "- Drilling
Contracts," below.)
The fees paid to the Managing General Partner and its Affiliates will
not be currently deductible to the extent it is determined that they are
in excess of reasonable compensation, are properly characterized as
organization or syndication fees, other capital costs such as the
acquisition cost of the Leases, or not "ordinary and necessary" business
expenses, or the services were rendered in tax years other than the tax
year in which such fees were deducted by the Partnership. (See "
Partnership Organization and Syndication Fees," below.) In the event of
an audit, payments to the Managing General Partner and its Affiliates by
the Partnership will be scrutinized by the IRS to a greater extent than
payments to an unrelated party.
Intangible Drilling and Development Costs
Assuming a proper election and subject to the passive activity loss
rules in the case of Limited Partners, each Participant will be entitled
to deduct his share of intangible drilling and development costs which
include items which do not have salvage value, such as labor, fuel,
repairs, supplies and hauling necessary to the drilling of a well.
Treas. Reg. 1.612-4(a). (See "Participation in Costs and Revenues" in
the Prospectus and "- Limitations on Passive Activities," above.) Such
costs generally will be subject to ordinary income recapture if a
property is sold at a gain and the amount to be recaptured is not
reduced by the amount of additional depletion that could have been
claimed if such costs had been capitalized and amortized. (See "- Sale
of the Properties," below.) Also, productive-well intangible drilling
and development costs may subject a Participant to an alternative
minimum tax in excess of regular tax unless an election is made to
deduct them on a straight-line basis over a 60 month period. (See "
Minimum Tax - Tax Preferences," below.)
In the preparation of the Partnership's informational tax returns,
Atlas will allocate Partnership costs paid by Atlas and the Participants
among Intangible Drilling Costs, Tangible Costs, Direct Costs,
Administrative Costs, Organization and Offering Costs and Operating
Costs based upon guidance from advisors to Atlas. Atlas has allocated
approximately 77% of the footage price paid by the Partnership for a
completed well in the Appalachian Basin to intangible drilling and
development costs ("Intangible Drilling Costs") which are charged 100%
to the Participants under the Partnership Agreement. The IRS could
challenge the characterization of costs claimed by Atlas to be
deductible intangible drilling and development costs and recharacterize
such costs as some other item which may be non-deductible however, this
would have no effect on the allocation and payment of such costs under
the Partnership Agreement. Where a Lease is acquired subject to an
obligation to pay an excessive drilling price, such excess amounts may
not qualify as deductible intangible drilling and development costs but
may be treated as Lease acquisition costs or some other non-deductible
expense.
In the case of corporations, other than S corporations, which are
"integrated oil companies," the amount allowable as a deduction for
intangible drilling and development costs in any taxable year under
263(c) of the Code is reduced by 30%. I.R.C. 291(b)(1). Integrated oil
companies are (i) those taxpayers who directly or through a related
person engage in the retail sale of oil or gas and whose gross receipts
for the calendar year from such activities exceed $5,000,000, or (ii)
those taxpayers and related persons who have refinery production in
excess of 50,000 barrels on any day during the taxable year. For these
purposes, two persons are "related" if either has a 5% interest in the
other or a third person has a 5% interest in both, determined under
special ownership attribution rules. Amounts disallowed as a current
deduction are allowable as a deduction ratably over the 60-month period
beginning with the month in which the costs are paid or incurred. The
portion of the adjusted basis of any property attributable to intangible
drilling and development costs disallowed under 291(b)(1) of the Code
cannot be taken into account to determine depletion under 611. Any
deductions of intangible drilling and development costs over the
60-month period will be subject to recapture.
Drilling Contracts
The Partnership will enter into the Drilling and Operating Agreement
with Atlas or its Affiliates, as a third-party general drilling
contractor, to drill and complete the Partnership's Development Wells on
a footage basis of $37.39 per foot for each well that is drilled and
completed in the Appalachian Basin, and at a competitive rate for wells,
if any, drilled in other areas of the United States. Under the footage
drilling contracts for wells situated in the Mercer County area of the
Appalachian Basin, Atlas anticipates that it will have reimbursement of
general and administrative overhead of $3,600 per well and a profit of
approximately 15% per well assuming the well is drilled to 6,150 feet.
However, the actual cost of the drilling of the wells may be more or
less than the estimated amount, due primarily to the uncertain nature of
drilling operations. Atlas believes the Drilling and Operating Agreement
is at competitive rates in the proposed areas of operation.
Nevertheless, the amount of the profit realized by Atlas under the
drilling contract, if any, could be challenged by the IRS as
unreasonable and disallowed as a deductible intangible drilling and
development cost. (See "- Intangible Drilling and Development Costs",
above, and "Proposed Activities" and "Compensation" in the Prospectus.)
Depending primarily on when the Partnership Subscription is received,
it is anticipated that the Partnership will prepay in 1997 most, if not
all, of the intangible drilling and development costs for drilling
activities that will be conducted in 1998. In Keller v. Commissioner, 79
T.C. 7 (1982), aff'd 725 F.2d 1173 (8th Cir. 1984), the Tax Court
applied a two-part test for the current deductibility of prepaid
intangible drilling and development costs: (1) the expenditure must be a
payment rather than a refundable deposit; and (2) the deduction must not
result in a material distortion of income taking into substantial
consideration the business purpose aspects of the transaction. The
drilling partnership in Keller entered into footage and daywork drilling
contracts which permitted it to terminate the contracts at any time
without default by the driller, and receive a return of the prepaid
amounts less amounts earned by the driller. The Tax Court found that the
right to receive, by unilateral action, a refund of the prepayments on
such footage and daywork drilling contracts rendered such prepayments
deposits instead of payments. Therefore, the prepayments were held to be
nondeductible in the year they were paid to the extent they had not been
earned by the driller. The Tax Court further found that the drilling
partnership failed to show a convincing business purpose for prepayments
under the footage and daywork drilling contracts.
The drilling partnership in Keller also entered into turnkey drilling
contracts which permitted it to stop work under the contract at any time
and apply the unearned balance of the prepaid amounts to another well to
be drilled on a turnkey basis. The Tax Court found that such prepayments
constituted "payments" and not nondeductible deposits, despite the right
of substitution. Further, the Tax Court noted that the turnkey drilling
contracts obligated "the driller to drill to the contract depth for a
stated price regardless of the time, materials or expenses required to
drill the well," thereby locking in prices and shifting the risks of
drilling from the drilling partnership to the driller. Since the
drilling partnership, a cash basis taxpayer, received the benefit of the
turnkey obligation in the year of prepayment, the Tax Court found that
the amounts prepaid on turnkey drilling contracts clearly reflected
income and were deductible in the year of prepayment.
In Leonard T. Ruth, TC Memo 1983-586, a drilling program entered into
nine separate turnkey contracts with a general contractor (the parent
corporation of the drilling program's corporate general partner), to
drill nine program wells. Each contract identified the prospect to be
drilled, stated the turnkey price, and required the full price to be
paid in 1974. The program paid the full turnkey price to the general
contractor on December 31, 1974; the receipt of which was found by the
court to be significant in the general contractor's financial planning.
The program had no right to receive a refund of any of such payments.
The actual drilling of the nine wells was subcontracted by the
general contractor to independent contractors who were paid by the
general contractor in accordance with their individual contracts. The
drilling of all wells commenced in 1975 and all wells were completed
that year. The amount paid by the general contractor to the independent
driller for its work on the nine wells was approximately $365,000 less
than the amount prepaid by the program to the general contractor.
The program claimed a deduction for intangible drilling and
development costs in 1974. The IRS challenged the timing of the
deduction, contending that there was no business purpose for the
payments in 1974, that the turnkey arrangements were merely "contracts
of convenience" designed to create a tax deduction in 1974, and that the
turnkey contracts constituted assets having a life beyond the taxable
year and that to allow a deduction for their entire costs in 1974
distorted income.
The Tax Court, relying on Keller, held that the program could deduct
the full amount of the payments in 1974. The court found that the
program entered into turnkey contracts, paid a premium to secure the
turnkey obligations, and thereby locked in the drilling price and
shifted the risks of drilling to the general contractor. Further, the
court found that by signing and paying the turnkey obligation, the
program got its bargained-for benefit in 1974, therefore the deduction
of the payments in 1974 clearly reflected income.
The Partnership will attempt to comply with the guidelines set forth
in Keller with respect to prepaid intangible drilling and development
costs. The Drilling and Operating Agreement will require the Partnership
to prepay in 1997 intangible drilling and development costs for
specified wells the drilling of which will be commenced in 1998.
Although the Partnership is not required to prepay completion costs of a
well prior to the time a decision has been made to complete the well, it
is anticipated that all Partnership Wells will be required to be
completed before an evaluation can be made as to their potential
productivity. Prepayments should not result in a loss of current
deductibility where there is a legitimate business purpose for the
required prepayment, the contract is not merely a sham to control the
timing of the deduction and there is an enforceable contract of economic
substance. The Drilling and Operating Agreement will require the
Partnership to prepay the intangible drilling and development costs of
the wells in order to enable the Operator to commence site preparation
for the wells, obtain suitable subcontractors at the then current prices
and insure the availability of equipment and materials. Under the
Drilling and Operating Agreement excess prepaid amounts, if any, will
not be refundable to the Partnership but will be applied to intangible
drilling and development costs to be incurred in drilling substitute
wells. Under Keller, such a provision for substitute wells should not
result in the prepayments being characterized as refundable deposits.
The likelihood that prepayments will be challenged by the IRS on the
grounds that there is no business purpose for the prepayment is
increased in the event prepayments are not required with respect to 100%
of the Working Interest. It is possible that less than 100% of the
Working Interest will be acquired by the Partnership in one or more
wells and prepayments may not be required of all holders of the Working
Interest. However, in the view of Special Counsel, a legitimate business
purpose for the required prepayments may exist under the guidelines set
forth in Keller, even though prepayment is not required, or actually
received, by the drilling contractor with respect to a portion of the
Working Interest.
In addition to the foregoing, a current deduction for prepaid
intangible drilling and development costs is available only if the
drilling of the wells is commenced before the close of the 90th day
after the close of the taxable year. The Managing General Partner will
attempt to cause prepaid Partnership Wells to be Spudded on or before
March 31, 1998. However, the Spudding of any Partnership Well may be
delayed due to circumstances beyond the control of the Partnership or
the drilling contractor. Such circumstances include the unavailability
of drilling rigs, weather conditions, inability to obtain drilling
permits or access right to the drilling site, or title problems. Due to
the foregoing factors no guaranty can be given that all prepaid
Partnership Wells required by the Drilling and Operating Agreement to be
Spudded on or before March 31, 1998, will actually be commenced by such
date. In that event, deductions claimed in 1997 for prepaid intangible
drilling and development costs would be disallowed and deferred to the
1998 taxable year.
No assurance can be given that on audit the IRS would not disallow
the current deductibility of a portion or all of any prepayments of
intangible drilling and development costs under the Partnership's
drilling contracts, thereby decreasing the amount of deductions
allocable to the Participants for the current taxable year, or that such
a challenge would not ultimately be sustained. In the event of
disallowance, the deduction would be available in the year the work is
actually performed.
Depletion Allowance
The Partnership intends to own an economic interest in all
Partnership Wells that produce gas or oil. Proceeds from the sale of oil
and gas production will constitute ordinary income. A certain portion of
such income will not be taxable by virtue of the depletion allowance
which permits the deduction from gross income for federal income tax
purposes of either the percentage depletion allowance or the cost
depletion allowance, whichever is greater. Accordingly, each Participant
will be entitled to take into account on his own federal income tax
return his share of allowable depletion as computed at the individual
partner level, rather than the partnership level.
Cost depletion for any year is determined by dividing the adjusted
tax basis for the property by the total units of gas or oil expected to
be recoverable therefrom and then multiplying the resultant quotient by
the number of units actually sold during the year. Cost depletion cannot
exceed the adjusted tax basis of the property to which it relates.
Percentage depletion generally is available to taxpayers other than
integrated oil companies. (See "- Intangible Drilling and Development
Costs.") Percentage depletion generally is based on the Participant's
share of gross income from the oil and gas producing property.
Generally, percentage depletion is available with respect to 6 million
cubic feet of average daily production of natural gas or 1,000 barrels
of average daily production of domestic crude oil. Taxpayers who have
both oil and gas production may allocate the production limitation
between such production. The rate of percentage depletion is 15%.
However, percentage depletion for marginal production increases 1% (up
to a maximum increase of 10%) for each whole dollar that the domestic
wellhead price of crude oil for the immediately preceding year is less
than $20 per barrel (without adjustment for inflation). The term
"marginal production" includes oil and gas produced from a domestic
stripper well property, which is defined as any property which produces
a daily average of 15 or less equivalent barrels of oil (90 MCF of
natural gas) per producing well on the property in the calendar year.
The rate of percentage depletion for marginal production presently is
16%. (See the model decline curve included in the United Energy
Development Consultants, Inc. Geological Report in "Proposed Activities
- - Information Regarding Currently Proposed Prospects" in the
Prospectus.)
Percentage depletion may not exceed 100% of the taxable income from
each oil and gas property before the deduction for depletion and is
limited to 65% of the taxpayer's taxable income for a year computed
without regard to percentage depletion, net operating loss carrybacks
and capital loss carrybacks.
On disposition of an oil and gas property there is recapture of the
lesser of: (i) the amounts that were deducted under 263 of the Code as
intangible drilling and development costs rather than added to basis,
plus depletion deductions that reduced the basis of the property; or
(ii) the amount realized in the case of a sale, exchange or involuntary
conversion or fair market value in all other cases, minus the property's
adjusted basis. Furthermore, the amount of recapturable intangible
drilling and development costs is not reduced by the amount by which
depletion would have been increased if the expensed intangible drilling
and development costs had been capitalized.
Availability of the percentage depletion allowance and limitations
thereon must be computed separately for each Participant and not by the
Partnership, or for Participants as a whole. Potential Participants are
urged to consult their own tax advisors with respect to the availability
of the percentage depletion allowance to them.
Depreciation - Accelerated Cost Recovery System
Tangible Costs and the related depreciation deductions are allocated
and charged under the Partnership Agreement 14% to the Managing General
Partner and 86% to the Participants. Most equipment placed in service
by the Partnership will be classified as "7-year" property and the cost
of such property generally will be recovered over a seven year cost
recovery period. I.R.C. 168(c). The depreciation method for property in
the 7-year class is 200% declining balance, with a switch to
straight-line to maximize the deduction. All property assigned to the
7-year class is treated as placed in service (or disposed of) in the
middle of the year and in the case of a short tax year the ACRS
deduction is prorated on a 12-month basis. The half-year convention
effectively adds another year onto the cost-recovery period.
No distinction is made between new and used property and salvage
value is disregarded. Component depreciation is prohibited and an
alternative depreciation system is used to compute the depreciation
preference subject to the alternative minimum tax (using the 150%
declining balance method, switching to straight-line, for most personal
property). (See "- Minimum Tax - Tax Preferences," below.) All gain on a
disposition of tangible personal property is treated as ordinary income
to the extent of ACRS deductions claimed by the taxpayer and deductions
allowed under 179 (expensing) are treated as depreciation deductions
for recapture purposes. As under prior law (unless otherwise provided by
regulations), the full amount of proceeds realized on a disposition of
property from a mass asset account is treated as ordinary income (with
no reduction for basis), however, no reduction is made in the
depreciable basis remaining in the account. Cost recovery deductions
allocable to the Participants in a taxable year may be reduced under
certain circumstances to the extent foreign persons or tax-exempt
entities subscribe to the Partnership.
Section 179 provides an election to expense a portion of the cost of
certain tangible personal property in the year such property is placed
in service. The amount allowable as a deduction in 1997 is $18,000.
However, the deductible amount is reduced dollar-for-dollar by the cost
of qualifying property in excess of $200,000 and the amount expensed
cannot exceed the taxable income derived from the active conduct by the
taxpayer of the trade or business in which the property is used. These
limitations are applied at both the partnership and the partner level.
I.R.C. 179(d)(8). Any excess expensed amount is carried forward. If
this special election to expense is made, the basis of the property used
to compute cost recovery deductions is reduced by the amount expensed
and is subject to recapture if the property is not used predominately in
a trade or business at any time. I.R.C. 179.
Leasehold Costs and Abandonment
The costs of acquiring oil and gas Lease interests, together with the
related cost depletion deduction and any abandonment loss, are allocated
under the Partnership Agreement 100% to Atlas, which will contribute the
Leases to the Partnership as a part of its Capital Contribution.
Tax Basis of Participants' Interests
The adjusted basis for federal income tax purposes of a Participant's
interest in the Partnership will be adjusted (but not below zero) for
any gain or loss to the Participant from a disposition by the
Partnership of an oil or gas property, and will be increased by: (i) his
cash subscription payment and any additional Capital Contributions paid
in cash to the Partnership, (ii) his share of any nonrecourse debt of
the Partnership, (iii) his share of any recourse debt of the
Partnership, (iv) his share of the taxable income of the Partnership;
and (v) his share of tax exempt income of the Partnership. (See
"Partnership Borrowings," below.)
The adjusted basis of a Participant's interest in the Partnership
will be reduced by: (i) his share of Partnership losses; (ii) his share
of Partnership expenditures that are not deductible in computing its
taxable income and are not properly chargeable to capital account; (iii)
his deduction for depletion for any partnership oil and gas property
(but not below zero); and (iv) cash distributions from the Partnership
to him. The reduction in a Participant's share of recourse or
nonrecourse liabilities is considered a cash distribution. Should cash
distributions exceed the tax basis of the Participant's interest in the
Partnership, taxable gain would result to the extent of the excess. (See
"- Distributions From a Partnership," below.)
A Participant's distributive share of Partnership loss is allowable
only to the extent of the adjusted basis of such Participant's interest
in the Partnership at the end of the Partnership's taxable year.
Participants will not be personally liable on any Partnership loans;
however, Investor General Partners will be liable for other obligations
of the Partnership. (See "Risk Factors - Special Risks of the
Partnership - Unlimited Liability of Investor General Partners" in the
Prospectus.)
Distributions From a Partnership
Generally, a cash distribution from a partnership to a partner in
excess of the adjusted basis of such partner's interest in the
partnership immediately before the distribution is treated as gain from
the sale or exchange of his interest in the partnership to the extent of
the excess. I.R.C. 731(a)(1). No loss is recognized by the partners on
these types of distributions. I.R.C. 731(a)(2). No gain or loss is
recognized by the Partnership on these types of distributions. I.R.C.
731(b). If property is distributed by the Partnership to the Managing
General Partner and the Participants, certain basis adjustments may be
made by the Partnership, the Managing General Partner and the
Participants. [Partnership Agreement, 5.04(d).] I.R.C. 732, 733, 734,
and 754. Other distributions of cash, disproportionate distributions of
property, and liquidating distributions may result in taxable gain
or loss. (See "- Disposition of Partnership Interests" and "-
Termination of a Partnership," below.)
Sale of the Properties
Under current law, a noncorporate taxpayer's ordinary income is taxed
at a maximum rate of 39.6% but net capital gains of a noncorporate
taxpayer are taxed at a maximum rate of 28%. The annual capital loss
limitation for noncorporate taxpayers is the amount of capital gains
plus the lesser of $3,000 ($1,500 for married persons filing separate
returns) or the excess of capital losses over capital gains. Long-term
losses (like short-term losses) offset ordinary income on a one-for-one
basis. Section 1231 gain continues to be computed separately from
long-term gain.
Gains and losses from sales of oil and gas properties held for more
than twelve months and not held primarily for sale to customers would
be, except to the extent of depreciation recapture on equipment and
recapture of any intangible drilling and development costs, depletion
deductions and certain 1231 losses, gains and losses described in 1231
of the Code (in general, from sales or exchanges of real or depreciable
property used in a trade or business). A Participant's net 1231 gain
will be treated as a long-term capital gain while a net loss will be an
ordinary deduction. However, ordinary income will result to the extent
the net 1231 gain for any taxable year does not exceed the excess of
the aggregate amount of the net 1231 losses for the five most recent
preceding taxable years over the portion of such losses taken into
account in determining the portion of net 1231 gain to be treated as
ordinary income for such preceding taxable years. I.R.C. 1231(c). Other
gains and losses on sales of oil and gas properties will generally
result in ordinary gains or losses.
Intangible drilling and development costs that are incurred in
connection with an oil and gas property may be recaptured as ordinary
income when the property is disposed of by the Partnership. Generally,
the amount recaptured is the lesser of:
(1) the aggregate amount of expenditures which have been deducted
as intangible drilling and development costs with respect to the
property and which (but for being deducted) would be reflected
in the adjusted basis of the property; or
(2) the excess of (i) the amount realized (in the case of a sale,
exchange or involuntary conversion); or (ii) the fair market
value of the interest (in the case of any other disposition)
over the adjusted basis of the property. I.R.C. 1254(a).
In addition, the deductions for depletion which reduced the adjusted
basis of the property are subject to recapture as ordinary income.
Disposition of Partnership Interests
The sale or exchange of all or part of a Participant's interest in
the Partnership held by him for more than twelve months will generally
result in a recognition of long-term capital gain or loss except to the
extent of ordinary income or loss, if any, from Partnership 751 assets
(which consist of unrealized receivables or substantially appreciated
inventory). I.R.C. 751. In the event the interest is held for twelve
months or less, such gain or loss will generally be short-term gain or
loss. A portion of any gain recognized by a Limited Partner on the sale
or other disposition of his interest in the Partnership will also be
characterized as portfolio income under 469 to the extent the gain is
itself attributable to portfolio income (e.g. interest on investment of
working capital). The recapturable portions of depreciation, depletion
and intangible drilling and development costs constitute unrealized
receivables. A Participant's pro rata share of the Partnership's
nonrecourse liabilities, if any, as of the date of the sale or exchange
must be included in the amount realized. Therefore, the gain recognized
may result in a tax liability greater than the cash proceeds, if any,
from such disposition. A gift of an interest in the Partnership may
result in federal and/or state income tax and gift tax liability of the
donor.
A Participant who sells or exchanges all or part of his interest in
the Partnership is required by the Code to notify the Partnership within
30 days or by January 15 of the following year, if earlier. I.R.C.
6050K. After receiving such notice, the Partnership is required to make
a return with the IRS stating the name and address of the transferor and
the transferee and such other information as may be required by the IRS.
The Partnership must also provide each person whose name is set forth in
the return a written statement showing the information set forth on the
return with respect to such person.
If a partner sells or exchanges his entire interest in a partnership,
the taxable year of the partnership will close with respect to such
partner (but not the remaining partners) on the date of sale or
exchange, with a proration of partnership items for the partnership's
taxable year. If a partner sells less than his entire interest in a
partnership, the partnership year will not terminate with respect to the
selling partner, but his proportionate share of items of income, gain,
loss, deduction and credit will be determined by taking into account his
varying interests in the partnership during the taxable year. Deductions
or credits generally may not be allocated to a partner acquiring an
interest from a selling partner for a period prior to the purchaser's
admission to the partnership. I.R.C. 706(d).
Other dispositions of a Participant's interest, including a
repurchase of the interest by Atlas, may or may not result in
recognition of taxable gain. Interests in different partnerships do not
qualify for tax-free like-kind exchanges. I.R.C. 1031(a)(2)(D).
However, no gain should be recognized by an Investor General Partner
whose interest in the Partnership is converted to a Limited Partner
interest so long as there is no change in his share of the Partnership's
liabilities or 751 assets as a result of the conversion. Rev. Rul.
84-52, 1984-1 C.B. 157. No disposition of an interest in the Partnership
(including repurchase of the interest by Atlas) should be made by any
Participant prior to consultation with his tax advisor.
Minimum Tax - Tax Preferences
For taxpayers other than integrated oil companies (see "- Intangible
Drilling and Development Costs"), the 1992 National Energy Bill repealed
(1) the preference for excess intangible drilling and development costs
and (2) the excess percentage depletion preference for oil and gas. The
repeal of the excess intangible drilling and development costs
preference, however, may not result in more than a 40% reduction in the
amount of the taxpayer's alternative minimum taxable income computed as
if the excess intangible drilling and development costs preference had
not been repealed. These rules are summarized below.
The alternative minimum tax is intended to insure that no one with
substantial income can avoid tax liability by using deductions and
credits, including the deductions for intangible drilling and
development costs and accelerated depreciation. The alternative minimum
tax rate for individuals is 26% on alternative minimum taxable income up
to $175,000 ($87,500 for married individuals filing separate returns)
and 28% thereafter. Individual tax preferences may include, but are not
limited to: accelerated depreciation, intangible drilling and
development costs, incentive stock options and passive activity losses.
The exemption amount is $45,000 for married couples filing jointly and
surviving spouses, $33,750 for single filers, and $22,500 for married
persons filing separately, estates and trusts. These exemption amounts
are reduced by 25% of the alternative minimum taxable income in excess
of (1) $150,000 for joint returns and surviving spouses; (2) $75,000 for
estates, trusts and married persons filing separately, and (3) $112,500
for single taxpayers. Married individuals filing separately must
increase alternative minimum taxable income by the lesser of: (i) 25% of
the excess of alternative minimum taxable income over $165,000; or (ii)
$22,500. Regular tax personal exemptions are not available for purposes
of the alternative minimum tax.
The only itemized deductions allowed for minimum tax purposes are
those for casualty and theft losses, gambling losses to the extent of
gambling gains, charitable deductions, medical deductions (to the extent
in excess of 10% of adjusted gross income), interest expenses
(restricted to qualified housing interest as defined in 56(e) of the
Code and investment interest expense not exceeding net investment
income), and certain estate taxes. The net operating loss for
alternative minimum tax purposes generally is the same as for regular
tax purposes, except: (i) current year tax preference items are added
back to taxable income, and (ii) individuals may use only those itemized
deductions (as modified under 172(d)) allowable in computing
alternative minimum taxable income. Code sections suspending losses,
such as 465 and 704(d), are recomputed for minimum tax purposes and
the amount of the deductions suspended or recaptured may differ for
regular and minimum tax purposes.
Under the prior rules, the amount of intangible drilling and
development costs which is not deductible for alternative minimum tax
purposes is the excess of the "excess intangible drilling costs" over
65% of net income from oil and gas properties. Net oil and gas income is
determined for this purpose without subtracting excess intangible
drilling and development costs. Excess intangible drilling and
development costs is the regular intangible drilling and development
costs deduction minus the amount that would have been deducted under 120
month straight-line amortization, or (at the taxpayer's election) under
the cost depletion method. There is no preference for costs of
nonproductive wells and the preference for intangible drilling and
development costs for productive wells is computed separately for each
property. Taxpayers can elect to amortize the year's intangible drilling
and development costs for productive wells ratably over a 60 month
period for all tax purposes and then such costs are not treated as an
item of tax preference. The passive loss disallowance is determined
after all preferences ad adjustments have been computed, so the
suspended loss amount may be different for minimum and regular tax
purposes. I.R.C. 58(b).
The likelihood of a Participant incurring, or increasing, any minimum
tax liability by virtue of an investment in the Partnership, and the
impact of such liability on his personal tax situation, must be
determined on an individual basis, and requires consultation by a
prospective Participant with his personal tax advisor.
Limitations on Deduction of Investment Interest
Investment interest is deductible by a noncorporate taxpayer only to
the extent of net investment income each year (with an indefinite
carryforward of disallowed investment interest). I.R.C. 163. Interest
subject to the limitation generally includes all interest (except
consumer interest and qualified residence interest) on debt not incurred
in a person's active trade or business, provided the activity is not a
"passive activity" under the passive loss rule. Accordingly, an Investor
General Partner's allocable share of any interest expense incurred by
the Partnership, will be subject to the investment interest limitation.
In addition, an Investor General Partner's income and losses (including
intangible drilling and development costs) from the Partnership will be
considered investment income and losses for purposes of this limitation.
Losses allocable to an Investor General Partner will reduce his net
investment income and may affect the deductibility of his investment
interest expense, if any.
Net investment income is the excess of investment income over
investment expenses. Investment income includes: gross income from
interest, dividends, rents, and royalties; portfolio income under the
passive activity rules (which includes working capital investment income
and possibly royalty income of the Partnership, if any, in the case of
Limited Partners); and income from a trade or business in which the
taxpayer does not materially participate if the activity is not a
"passive activity" under the passive loss rule (which includes the
Partnership, at least prior to the conversion of Investor General
Partner Units to Limited Partner interests, in the case of Investor
General Partners). Gain from the disposition of investment property
generally is not included unless the taxpayer elects to reduce the
amount of net capital gain that qualifies for the 28% ceiling.
Investment expenses include deductions (other than interest) that are
directly connected with the production of net investment income
(including actual depreciation or depletion deductions allowable). No
item of income or expense subject to the passive activity loss rules of
469 of the Code is treated as investment income or investment expense.
In determining deductible investment expenses, investment expenses
are subject to a rule limiting deductions for miscellaneous expenses to
those exceeding 2% of adjusted gross income, however, expenses that are
not investment expenses are intended to be disallowed before any
investment expenses are disallowed.
Allocations
The Partnership Agreement allocates to each Partner his share of the
income, gains, credits and deductions (including the deductions for
intangible drilling and development costs and depreciation) generated by the
Partnership. Allocations of certain items are made in ratios that are
different than allocations of other items. (See "Participation in Costs
and Revenues" in the Prospectus.) The Capital Accounts of the Partners
are adjusted to reflect such allocations and the Capital Accounts, as
adjusted, will be given effect in distributions made to the Partners upon
liquidation of the Partnership or any Partner's interest in the
Partnership. Generally, the basis of oil and gas properties owned by the
Partnership for computation of cost depletion and gain or loss on
disposition will be allocated and reallocated when necessary in the
ratio in which the expenditure giving rise to the tax basis of each
property was charged as of the end of the year. [Partnership Agreement,
5.03(b).]
Special allocations (those made in a manner that is disproportionate to
the respective interests of the partners in a partnership), among
partners of any item of partnership income, gain, loss, deduction or
credit will not be given effect unless the special allocation has
"substantial economic effect." I.R.C. 704(b). An allocation generally
will have economic effect if throughout the term of the partnership:
(1) the partners' capital accounts are maintained in accordance
with rules set forth in the regulations (generally, tax
accounting principles);
(2) liquidation proceeds are distributed in accordance with the
partners' capital accounts; and
(3) any partner with a deficit balance in his capital account
following the liquidation of his interest in the partnership is
required to restore the amount of the deficit for distribution to
partners with positive capital account balances or to be paid to
creditors.
Generally, a Participant's Capital Account is increased by the amount of
money he contributes to the Partnership and allocations to him of income and
gain, and decreased by the value of property or cash distributed to him
and allocations to him of loss and deductions. The regulations also require
that there must be a reasonable possibility that the allocation will affect
substantially the dollar amounts to be received by the partners from the
partnership, independent of tax consequences.
Although Participants are not required to restore deficit balances in
their Capital Accounts beyond the amount of their agreed Capital
Contributions, an allocation which is not attributable to nonrecourse
debt will be considered to have economic effect to the extent it does not
cause or increase a deficit balance in a Participant's Capital Account,
if requirements (1) and (2) described above are met and the partnership
agreement provides that a partner who unexpectedly incurs a deficit
balance in his Capital Account because of certain adjustments, allocations,
or distributions will be allocated income and gain sufficient to
eliminate such deficit balance as quickly as possible. Treas. Reg. 1.704-
l(b)(2)(ii)(d). (See 5.03(h) of the Partnership Agreement.)
In the event of a sale or transfer of a Partnership Unit or the
admission of an additional Participant, Partnership income, gain, loss,
deductions and credits generally will be allocated among the Partners on a
daily basis according to their varying interests in the Partnership
during the taxable year. In addition, in the discretion of the Managing
General Partner Partnership property may be revalued upon the admission of
additional Participants, or if certain distributions are made to the
Partners, to reflect unrealized income, gain, loss or deduction inherent in
the Partnership's property for purposes of adjusting the Partners' Capital
Accounts. It should be noted that a reduction in a Participant's
interest in the Partnership upon the admission of additional
Participants could be viewed by the IRS as a deemed sale or exchange by
the Participant of his share of "751 assets" under 751 of the Code,
which provides that to the extent a partner receives partnership
property, including money, in exchange for all or part of his interest in
the partnership's unrealized receivables, which includes any intangible
drilling and development costs, depletion and cost recovery deductions
recapture, and inventory items ("751 assets"), the transaction will be
considered a sale or exchange of the property between the partner and
the partnership. In Rev. Rul. 84-102, 1984-2 C.B. 119, the IRS ruled that
upon the admission of a new partner to an existing partnership having both
unrealized receivables and liabilities outstanding, the existing partners
were considered to have received distributions to which 751(b) applies
and were taxable on the gain resulting from such deemed sale.
It should also be noted that each Partner's share of Partnership
items of income, gain, loss, deduction and credit must be taken into
account whether or not there is any distributable cash. A Participant's
share of Partnership revenues applied to the repayment of loans or the
reserve for plugging wells will be included in his gross income in a
manner analogous to an actual distribution of the income to him. Thus, a
Participant may have taxable income from the Partnership for a
particular year in excess of any cash distributions from the Partnership to
him with respect to that year. To the extent the Partnership has cash
available for distribution, however, it is Atlas' policy that
Partnership distributions will not be less than the Participants'
estimated income tax liability with respect to Partnership income.
No assurance can be given that, on audit, the IRS will not take the
position that a portion of the deductions allocable to the Participants is
not allowable to them. If such a position is taken, there can be no
assurance that any resulting deficiency will not ultimately be
sustained. However, assuming the effect of the special allocations set
forth in the Partnership Agreement is substantial in light of a
Participant's tax attributes that are unrelated to the Partnership, in the
opinion of Special Counsel it is more likely than not that such
allocations will have "substantial economic effect" and will govern each
Participant's distributive share of such items to the extent such
allocations do not cause or increase deficit balances in the
Participants' Capital Accounts.
If any allocation under the Partnership Agreement is not recognized
for federal income tax purposes, each Participant's distributive share of
the items subject to such allocation generally will be determined in
accordance with his interest in the Partnership, determined by
considering relevant facts and circumstances. To the extent such
deductions as allocated by the Partnership Agreement, exceed deductions
which would be allowed pursuant to such a reallocation, Participants may
incur a greater tax burden.
"At Risk" Limitation For Losses
Subject to the limitations on "passive losses" generated by the
Partnership in the case of Limited Partners and a Participant's basis in the
Partnership, each Participant may use his share of the Partnership's losses
to offset income from other sources. (See "- Limitations on Passive
Activities" and "- Tax Basis of Participants' Interests," above.)
However, any taxpayer (other than a corporation which is neither an S
corporation nor a corporation in which five or fewer individuals own more
than 50% of the stock) who sustains a loss in connection with his oil and
gas activities may deduct such loss only to the extent of the amount he
has "at risk" in such activities at the end of a taxable
year. In determining whether five or fewer individuals own 50% or more of
the stock of a corporation, the attribution rules of 544 apply. The "at
risk" limitation applies to each activity engaged in and not on an
aggregate basis for all activities. The amount "at risk" is limited to the
amount of money and the adjusted basis of other property the
taxpayer has contributed to the activity, and any amount he has borrowed
with respect thereto for which he is personally liable or with respect to
which he has pledged property other than property used in the
activity; limited, however, to the net fair market value of his
interest in such pledged property. I.R.C. 465(b)(1) and (2). However,
amounts borrowed will not be considered "at risk" if such amounts are
borrowed from any person who has an interest (other than as a creditor) in
such activity or from a related person to a person (other than the
taxpayer) having such an interest.
"Loss" is defined as being the excess of allowable deductions for a
taxable year from an activity over the amount of income actually
received or accrued by the taxpayer during such year from the activity. The
amount the taxpayer has "at risk" may not include the amount of any
loss that the taxpayer is protected against through nonrecourse loans,
guarantees, stop loss agreements, or other similar arrangements. The
amount of any such loss that is disallowed in any taxable year will be
carried over to the first succeeding taxable year, to the extent a
Participant is "at risk." Further, a taxpayer's "at risk" amount in
subsequent taxable years with respect to the activity involved will be
reduced by that portion of the loss which is allowable as a deduction.
Participants' Agreed Subscriptions are funded by a payment of cash
(usually "at risk"). Since income, gains, losses, and distributions of the
Partnership affect the amount considered to be "at risk," the extent to
which a Participant is "at risk" must be determined annually.
Further, conversion from recourse to nonrecourse liability would reduce the
amount "at risk" and could result in taxable income to the
Participant. Previously allowed losses must be recaptured (included in
gross income) when the "at risk" amount is reduced below zero. However, the
amount recaptured is limited by the amount the taxpayer's "at risk"
amount is reduced below zero, with special computations to reflect
previously recaptured losses. The amount included in income under this
recapture provision may be deducted in the first succeeding taxable year to
the extent of any increase in the amount which the Participant has "at
risk."
Partnership Borrowings
Under the Partnership Agreement, the Managing General Partner and its
Affiliates may make loans to the Partnership. The use of Partnership
revenues taxable to Participants to repay Partnership borrowing will
create income tax liability for such Participants in excess of cash
distributions to them, since repayments of principal are not deductible for
federal income tax purposes, and deductions for payment of interest
will be subject to the "investment interest" and "passive loss"
limitations previously discussed. In addition, interest paid (or imputed at
the applicable Federal rate) on such loans will not be deductible unless
such loans are bona fide loans that will not be treated as Capital
Contributions. In Revenue Ruling 72-135, 1972-1 C.B. 200, the IRS ruled
that a nonrecourse loan from a general partner to a limited
partner or to a partnership engaged in oil and gas exploration
represented a capital contribution by the general partner rather than a
loan. Whether a "loan" to the Partnership represents in substance, debt or
equity is a question of fact to be determined from all the
surrounding facts and circumstances. (See Kingbay v. Commissioner, 46
T.C. 147 (1966); Hambuechen v. Commissioner, 43 T.C. 90 (1964).)
Partnership Organization and Syndication Fees
Expenses connected with the issuance and sale of interests in a
partnership (i.e., promotional expense, selling expense, commissions,
professional fees and printing costs) are not deductible. Further,
except for certain expenses, amounts incurred to organize a partnership may
not be claimed as deductions under the partnership provisions of the Code.
However, expenses incident to the creation of a partnership which are
chargeable to capital account and which, if expended in connection with
the creation of a partnership having an ascertainable life, would be
amortized over that period of time, may be deducted and amortized over a
period of not less than 60 months. Such amortizable organization expenses
are charged 100% to the Managing General Partner as part of the
Partnership's Organization and Offering Costs and any related deductions
will be allocated to the Managing General Partner.
Tax Elections
The Code permits partnerships to elect to adjust the basis of
partnership property on the transfer of an interest in a partnership by
sale or exchange or on the death of a partner, and on the distribution of
property by the partnership to a partner (the 754 election). The general
effect of such an election is that transferees of the
partnership interests are treated, for purposes of depreciation and
gain, as though they had acquired a direct interest in the partnership
assets and the partnership is treated for such purposes, upon certain
distributions to partners, as though it had newly acquired an interest in
the partnership assets and therefore acquired a new cost basis for such
assets. Any such election, once made, may not be revoked without the
consent of the IRS. The Partnership Agreement, 5.04(d), provides that
the Partnership may make the 754 election. The Partnership may also
make various elections for federal tax reporting purposes which could
result in various items of income, gain, loss, deduction and credit
being treated differently for tax purposes than for accounting purposes.
Code 195 permits taxpayers to elect to capitalize and amortize
"start-up expenditures" over a 60-month period. Such items include
amounts: (1) paid or incurred in connection with: (i) investigating the
creation or acquisition of an active trade or business, (ii) creating an
active trade or business, or (iii) any activity engaged in for profit and
for the production of income before the day on which the active trade
or business begins, in anticipation of such activity becoming an active
trade or business; and (2) which would be allowed as a deduction if paid
or incurred in connection with the expansion of an existing business.
Start-up expenditures do not include amounts paid or incurred in
connection with the sale of partnership interests. If it is
ultimately determined that any of the Partnership's expenses constituted
start-up expenditures and not deductible expenses under 162, the
Partnership's deductions would be reduced.
Disallowance of Deductions Under Section 183 of the Code
Under 183 of the Code, a Participant's ability to deduct his share of
the Partnership's losses on his federal income tax return could be lost
if the Partnership lacks the appropriate profit motive as
determined from an examination of all facts and circumstances at the
time. Section 183 creates a presumption that an activity is engaged in for
profit, if, in any three of five consecutive taxable years, the gross
income derived from such activity exceeds the deductions
attributable to such activity. Thus, if the Partnership fails to show a
profit in at least three out of five consecutive years, this presumption
will not be available. In that instance, the possibility that the IRS
could successfully challenge the deductions claimed by a Participant
would be substantially increased.
The fact that the possibility of ultimately obtaining profits is
uncertain, standing alone, does not appear to be sufficient grounds for
the denial of losses under 183. (See Treas. Reg. 1.183-2(c), Example
(5).) Based on Atlas' representation that the Partnership will be
conducted as described in the Prospectus, in the opinion of Special
Counsel it is more likely than not that the Partnership will possess the
requisite profit motive.
Termination of a Partnership
Pursuant to 708(b) of the Code, a partnership will be considered as
terminated for federal income tax purposes if within a twelve month
period there is a sale or exchange of 50% or more of the total interest in
partnership capital and profits. The closing of the partnership year may
result in more than twelve months' income or loss of the partnership being
allocated to certain partners for the year of termination (i.e., in the
case of partners using fiscal years other than the calendar year). Under
731 of the Code, a partner will realize taxable gain on a termination of
the partnership to the extent that money regarded as distributed to him
exceeds the adjusted basis of his partnership interest. The conversion
of Investor General Partner Units to Limited Partner interests will not
result in a termination of the Partnership under 708 of the Code. Rev.
Rul. 84-52, 1984-1 C.B. 157.
Lack of Registration as a Tax Shelter
Section 6111 of the Code generally requires an organizer of a "tax
shelter" to register the tax shelter with the Secretary of the Treasury, and
to obtain an identification number which must be included on the tax returns
of investors in such a tax shelter. For purposes of these provisions,
a "tax shelter" is generally defined to include investments with respect to
which any person could reasonably infer that the ratio that (1) the
aggregate amount of the potentially allowable deductions and 350% of the
potentially allowable credits with respect to the investment during the
first five years of the investment bears to (2) the amount of money and
the adjusted basis of property contributed to the investment exceeds 2 to
1. Temporary Regulations promulgated by the IRS provide that the
aggregate amount of gross deductions must be considered and determined
without reduction for gross income derived, or to be derived, from the
investment.
Atlas does not believe that the Partnership will have a tax shelter
ratio greater than 2 to 1. Also, because the purpose of the Partnership is
to locate, produce and market natural gas on an economic basis, Atlas does
not believe that the Partnership will be a "potentially abusive tax
shelter." Accordingly, Atlas does not intend to cause the Partnership to
register with the IRS as a tax shelter.
If it is subsequently determined that the Partnership was required to
be registered with the IRS as a tax shelter, Atlas would be subject to
certain penalties, including a penalty of 1% of the aggregate amount
invested in the Units of the Partnership for failing to register and
$100 for each failure to furnish a Participant a tax shelter
registration number, and each Participant would be liable for a $250
penalty for failure to include the tax shelter registration number on his
tax return, unless such failure was due to reasonable cause. A
Participant also would be liable for a penalty of $100 for failing to
furnish the tax shelter registration number to any transferee of his
interest in the Partnership. However, based on the representations of the
Managing General Partner, Special Counsel has expressed the opinion that
the Partnership, more likely than not, is not required to register with the
IRS as a tax shelter.
Issuance of a registration number does not indicate that an
investment or the claimed tax benefits have been reviewed, examined, or
approved by the IRS.
Investor Lists
Section 6112 of the Code requires that any person who organizes a tax
shelter required to be registered with the IRS or who sells any interest in
such a shelter must maintain a list identifying each person who was sold
an interest in the shelter and setting forth other required
information. For the reasons described above, Atlas does not believe the
Partnership is subject to the requirements of 6112 If this
determination is wrong, 6708 of the Code provides for a penalty of $50 for
each person with respect to whom there is a failure to meet any
requirements of 6112, unless the failure is due to reasonable cause.
Tax Returns and Audits
In General. The tax treatment of all partnership items is generally
determined at the partnership, rather than the partner, level; and the
partners are generally required to treat partnership items on their
individual returns in a manner which is consistent with the treatment of
such partnership items on the partnership return. I.R.C. 6221 and
6222. Regulations define "partnership items" for this purpose as
including distributive share items that must be allocated among the
partners, such as partnership liabilities, data pertaining to the
computation of the depletion allowance, and guaranteed payments. Treas.
Reg. 301.6231(a)(3)-1.
Generally, the IRS must conduct an administrative determination as to
partnership items at the partnership level before conducting deficiency
proceedings against a partner, and the partners must file a request for an
administrative determination before filing suit for any credit or refund.
The period for assessing tax against a Partner attributable to a partnership
item may be extended as to all partners by agreement between the IRS and
Atlas, which will serve as the Partnership's representative ("Tax Matters
Partner") in all administrative and judicial proceedings conducted at the
partnership level. The Tax Matters Partner generally may enter into a
settlement on behalf of, and binding upon, partners owning less than a 1%
profits interest in partnerships having more than 100 partners. By
executing the Partnership Agreement, each Participant agrees that he will
not form or exercise any right as a member of a notice group and will
not file a statement notifying the IRS that the Tax Matters Partner does
not have binding settlement authority.
In the event of an audit of the return of the Partnership, the Tax
Matters Partner, pursuant to advice of counsel, will take all actions
necessary, in its discretion, to preserve the rights of the
Participants. All expenses of such proceedings undertaken by the Tax
Matters Partner, which might be substantial, will be paid for by the
Partnership. The Tax Matters Partner is not obligated to contest
adjustments made by the IRS.
Tax Returns. The preparation and filing of each Participant's federal,
state and local income tax returns are the responsibility of the
Participant. The Partnership will provide each Participant with the tax
information applicable to his investment in the Partnership necessary to
prepare such returns; however, the treatment of the tax attributes of the
Partnership may vary among Participants. The Managing General Partner,
its Affiliates and Special Counsel assume no responsibility for the tax
consequences of this transaction to a Participant, nor for the disallowance
of any proposed deductions. EACH PARTICIPANT IS URGED TO SEEK QUALIFIED,
PROFESSIONAL ASSISTANCE IN THE PREPARATION OF HIS FEDERAL, STATE AND
LOCAL TAX RETURNS.
Penalties and Interest
In General. Interest (based on the applicable Federal short-term rate
plus 3 percentage points) is charged on underpayments of tax and various
civil and criminal penalties are included in the Code.
Penalty for Negligence or Disregard of Rules or Regulations. If any
portion of an underpayment of tax is attributable to negligence or
disregard of rules or regulations, 20% of such portion is added to the
tax. Negligence is strongly indicated if a partner fails to treat
partnership items on his tax return in a manner that is consistent with the
treatment of such items on the partnership's return or to notify the IRS of
the inconsistency. The term "disregard" includes any careless, reckless or
intentional disregard of rules or regulations. There is no penalty,
however, if the position is adequately disclosed, or the position is
taken with reasonable cause and in good faith, or the position has a
realistic possibility of being sustained on its merits. Treas. Reg. 1.6662-
3.
Valuation Misstatement Penalty. There is an addition to tax of 20% of the
amount of any underpayment of tax of $5,000 or more ($10,000 in the case of
corporations other than S corporations or personal holding companies)
which is attributable to a substantial valuation
misstatement. There is a substantial valuation misstatement if the value or
adjusted basis of any property claimed on a return is 200% or more of the
correct amount; or if the price for any property or services (or for the
use of property) claimed on a return is 200% or more (or 50% or less)
of the correct price. If there is a gross valuation misstatement (400% or
more of the correct value or adjusted basis or the
undervaluation is 25% or less of the correct amount) the penalty is 40%.
I.R.C. 6662(e) and (h).
Substantial Understatement Penalty. There is also an addition to tax of
20% of any underpayment if the difference between the tax required to be
shown on the return over the tax actually shown on the return, exceeds
the greater of 10% of the tax required to be shown on the return, or
$5,000 ($10,000 in the case of corporations other than S corporations or
personal holding companies). I.R.C. 6662(d). The
amount of any understatement generally will be reduced to the extent it is
attributable to the tax treatment of an item supported by substantial
authority, or adequately disclosed on the taxpayer's return. However, in the
case of "tax shelters," the understatement may be reduced only if the tax
treatment of an item attributable to a tax shelter was supported by
substantial authority and the taxpayer reasonably believed that the tax
treatment claimed was more likely than not the proper treatment.
Disclosure of partnership items should be made on the Partnership's
return; however, a taxpayer partner also may make adequate disclosure on his
individual return with respect to pass-through items. Section
6662(d)(2)(C) provides that a "tax shelter" is any entity which has as its
principal purpose the avoidance or evasion of federal income tax. Assuming
the Partnership is conducted as set forth in the Prospectus, in the opinion
of Special Counsel it is more likely than not that the Partnership will
not be characterized as a tax shelter for purposes of the substantial
understatement of income tax penalty.
IRS Anti-Abuse Rule. Under Treas. Reg. 1.701-2, if a principal purpose of
a partnership is to reduce substantially the partners' federal income tax
liability in a manner that is inconsistent with the intent of the
partnership rules of the Code, based on all the facts and circumstances, the
IRS is authorized to remedy the abuse. For illustration purposes, the
following factors may indicate that a partnership is being used in a
prohibited manner: (i) the partners' aggregate federal income tax
liability is substantially less than had the partners owned the
partnership's assets and conducted its activities directly; (ii) the
partners' aggregate federal income tax liability is substantially less
than if purportedly separate transactions are treated as steps in a
single transaction; (iii) one or more partners are needed to achieve the
claimed tax results and have a nominal interest in the partnership or are
substantially protected against risk; (iv) substantially all of the partners
are related to each other; (v) income or gain are allocated to partners
who are not expected to have any federal income tax liability; (vi) the
benefits and burdens of ownership of property nominally contributed
to the partnership are related in substantial part by the
contributing party; and (vii) the benefits and burdens of ownership of
partnership property are in substantial part shifted to the distributee
partners before or after the property is actually distributed to the
distributee partners. Based on the Managing General Partner's
representation that the Partnership will be conducted as described in the
Prospectus, in the opinion of Special Counsel it is more likely than not
that the Partnership will not be subject to the anti-abuse rule set forth in
Treas. Reg. 1.701-2.
State and Local Taxes
The Partnership will operate in states and localities which impose a tax
on its assets or its income, or on each Participant. Deductions which
are available to Participants for federal income tax purposes may not be
available for state or local income tax purposes. A Participant's
distributive share of the net income or net loss of the Partnership
generally will be required to be included in determining his reportable
income for state or local tax purposes in the jurisdiction in which he is
a resident. To the extent that a non-resident Participant pays tax to a
state by virtue of Partnership operations within that state, he may be
entitled to a deduction or credit against tax owed to his state of
residence with respect to the same income. To the extent that the
Partnership operates in certain jurisdictions, state or local estate or
inheritance taxes may be payable upon the death of a Participant in
addition to taxes imposed by his own domicile.
Under Pennsylvania law, the Partnership is required to withhold state
income tax at the rate of 2.8% of Partnership income allocable to
Participants who are not residents of Pennsylvania. This requirement
does not obviate Pennsylvania tax return filing requirements for
Participants who are not residents of Pennsylvania. In the event of
overwithholding, a Pennsylvania income tax return must be filed by
Participants who are not residents of Pennsylvania in order to obtain a
refund. Prospective Participants should consult with their own tax
advisors concerning the possible effect of various state and local taxes on
their personal tax situations.
Severance, Franchise, and Ad Valorem (Real Estate) Taxes
The Partnership may incur various ad valorem or severance taxes
imposed by state or local taxing authorities. Currently, there is no
such tax liability in Mercer County, Pennsylvania.
Social Security Benefits and Self-Employment Tax
A Limited Partner's share of income or loss from the Partnership is
excluded from the definition of "net earnings from self-employment." No
increased benefits under the Social Security Act will be earned by
Limited Partners and if any Limited Partners are currently receiving
Social Security benefits, their shares of Partnership taxable income
will not be taken into account in determining any reduction in benefits
because of "excess earnings." An Investor General Partner's share of
income or loss from the Partnership will constitute "net earnings from
self-employment" for these purposes. I.R.C. 1402(a). For 1997 the
ceiling for social security tax of 12.4% is $65,400 and there is no
ceiling for medicare tax of 2.9%. Self-employed individuals can deduct one-
half of their self-employment tax.
Foreign Partners
The Partnership will be required to withhold and pay to the IRS tax at
the highest rate under the Code applicable to Partnership income
allocable to foreign partners, even if no cash distributions are made to
such partners. A purchaser of a foreign Partner's Units may be required to
withhold a portion of the purchase price and the Managing General Partner
may be required to withhold with respect to taxable
distributions of real property to a foreign Partner. The withholding
requirements described above do not obviate United States tax return
filing requirements for foreign Partners. In the event of
overwithholding, a foreign Partner must file a United States tax return to
obtain a refund.
Estate and Gift Taxation
There is no federal tax on lifetime or testamentary transfers of
property between spouses. The gift tax annual exclusion is $10,000 per
donee. The maximum estate and gift tax rate is 55% (subject to a 5%
surtax on amounts in excess of $10,000,000); and estates of $600,000 or
less generally are not subject to federal estate tax. In the event of the
death of a Participant, the fair market value of his interest as of the
date of death (or as of the alternate valuation date) will be included
in his estate for federal estate tax purposes. The decedent's heirs will,
for federal income tax purposes, take as their basis for the interest the
value as so determined for federal estate tax purposes.
Changes in Law
The Partnership and the Participants could be adversely affected by any
further changes in tax laws that may result through future
Congressional action, Tax Court or other judicial decisions, or
interpretations by the IRS. It is impossible to predict what, if any,
changes in the tax law may become law in the future or even if adopted,
would apply to the Partnership.
IT IS NOT POSSIBLE FOR US TO PREDICT THE EFFECT OF THE TAX LAWS ON
INDIVIDUAL PARTICIPANTS. EACH PARTICIPANT IS URGED TO SEEK, AND SHOULD
DEPEND UPON, THE ADVICE OF HIS OWN TAX ADVISORS WITH RESPECT TO HIS
INVESTMENT IN THE PARTNERSHIP WITH SPECIFIC REFERENCE TO HIS OWN TAX
SITUATION AND POTENTIAL CHANGES IN THE APPLICABLE LAW.
We consent to the use of this opinion letter as an exhibit to the
Registration Statement, and all amendments thereto, and to all
references to this firm in the Prospectus.
Very truly yours,
KUNZMAN & BOLLINGER, INC. Exhibit
10(a)
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the _____ day of
_________, 1997, by and between Atlas Resources, Inc., a Pennsylvania
corporation ("Atlas"), Anthem Securities, Inc., a Pennsylvania
corporation ("Anthem"), Bryan Funding, Inc., a Pennsylvania corporation
("Bryan Funding"), collectively Anthem and Bryan Funding are referred to as
the "Dealer-Manager", Atlas-Energy for the Nineties-Public #6 Ltd., a
Pennsylvania limited partnership (the "Partnership") and National City
Bank of Pennsylvania, Pittsburgh, Pennsylvania, as escrow agent (the
"Escrow Agent").
WITNESSETH:
WHEREAS, Atlas, as Managing General Partner, intends to offer
publicly for sale to qualified investors (the "Investors") up to 1,000
limited partnership interests in the Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in
full upon subscribing ($10,000 per Unit, however, the Managing General
Partner, in its discretion, may accept one-half Unit [$5,000]
subscriptions, with larger subscriptions permitted in $1,000
increments), by check, draft or money order except that the
broker-dealers and Atlas and its officers and directors may purchase
Units net of the Dealer-Manager Fee, the commissions and accountable due
diligence fees set forth below (the "Subscription Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") pursuant to which Anthem
will solicit subscriptions for Units in all states other than Minnesota and
New Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on
a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and pursuant to which Anthem has
been authorized to select certain members in good standing of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
offering of the Units ("Selling Agents"); and
WHEREAS, the Managing General Partner and Bryan Funding have
executed an agreement ("Bryan Funding Dealer-Manager Agreement")
pursuant to which Bryan Funding will solicit subscriptions for Units in the
states of Minnesota and New Hampshire on a "best efforts" "all or none"
basis for $1,000,000 and on a "best efforts" basis for the remaining
Units on behalf of the Managing General Partner and the Partnership
and pursuant to which Bryan Funding has been authorized to select certain
members in good standing of the National Association of Securities Dealers,
Inc. ("NASD") to participate in the offering of the Units ("Selling
Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the Bryan Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer
Manager Agreement", provide for compensation to the Dealer-Manager which
includes, but is not limited to, a 2.5% Dealer-Manager Fee, a 7.5% sales
commission, and reimbursement of the Selling Agents' bona fide
accountable due diligence expenses of .5% per Unit to participate in the
offering of the Units, which compensation will be reallowed to the
Selling Agents and wholesalers; and
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the
receipt and acceptance by Atlas of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General
Partner, its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after
receipt of the maximum Subscription Proceeds of $8,000,000 (which may be
increased to $10,000,000 in Atlas' discretion) or December 31, 1997,
whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer
Manager Agreement, Atlas and the Dealer-Manager desire to have the
Subscription Proceeds deposited with the Escrow Agent and the Escrow
Agent desires to hold the Subscription Proceeds pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Appointment of Escrow Agent. Atlas, the Partnership and the
Dealer-Manager hereby appoint Escrow Agent as the escrow agent to
receive and to hold the Subscription Proceeds deposited with Escrow
Agent by the Dealer-Manager and the Selling Agents pursuant hereto
and Escrow Agent hereby agrees to serve in such capacity during the
term and based upon the provisions hereof.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall
deposit the Subscription Proceeds of each Investor with the Escrow
Agent and shall deliver to the Escrow Agent a copy of the
Subscription Agreement of such Investor. Payment for each
subscription for Units shall be in the form of a check made payable to
"National City Bank of Pennsylvania, Escrow Agent, Atlas Public #6
Ltd." The Escrow Agent shall deliver a receipt to Anthem and Atlas
for each deposit of Subscription Proceeds made pursuant hereto by
Anthem, and to Bryan Funding and Atlas for each deposit of
subscription proceeds made pursuant hereto by Bryan Funding.
3. Investment of Subscription Proceeds. The Subscription Proceeds
shall be deposited in an interest bearing account maintained by the
Escrow Agent entitled "Armada Government Fund." Subscription
Proceeds may be temporarily invested by the Escrow Agent only in
income producing short-term, highly liquid investments secured by the
United States government where there is appropriate safety of
principal, such as U.S. Treasury Bills. The interest earned shall be
added to the Subscription Proceeds and disbursed in accordance with the
provisions of paragraph 4 or 5, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent (a)
receives written notice from an authorized officer of Atlas that at
least the minimum aggregate subscriptions of $1,000,000 have been
received and accepted by Atlas, and (b) determines that Subscription
Proceeds for at least $1,000,000 as determined by Atlas have cleared the
banking system and are good, the Escrow Agent shall promptly release
and distribute to Atlas such escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on such Subscription Proceeds while held
by the Escrow Agent in an escrow account. Any remaining Subscription
Proceeds, plus any interest paid and investment income earned on such
Subscription Proceeds while held by the Escrow Agent in an escrow
account shall be promptly released and distributed to Atlas by the
Escrow Agent as such Subscription Proceeds clear the banking system and
become good.
5. Separate Partnership Account. During the continuation of the
offering after the Partnership is funded with cleared Subscription
Proceeds of at least $1,000,000 and the Escrow Agent receives the notice
described in Paragraph 4 of this Agreement, and prior to the Offering
Termination Date, any additional Subscription Proceeds may be deposited by
the Dealer-Manager directly in a separate Partnership account which shall
not be subject to the terms of this Agreement.
6. Distributions to Subscribers.
(a) In the event that the Partnership will not be funded as
contemplated because less than the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
Atlas by twelve p.m. (noon), local time, on December 31, 1997, or for
any other reason, Atlas shall so notify the Escrow Agent,
whereupon the Escrow Agent promptly shall distribute to each
Investor a refund check made payable to such Investor in an
amount equal to the Subscription Proceeds of such Investor, plus any
interest paid or investment income earned thereon while held
by the Escrow Agent in an escrow account as calculated by Atlas.
(b) In the event that a subscription for Units submitted by an
Investor is rejected by Atlas for any reason after the
Subscription Proceeds relating to such subscription have been
deposited with the Escrow Agent, then Atlas promptly shall notify
the Escrow Agent of such rejection, and the Escrow Agent shall
promptly distribute to such Investor a refund check made payable
to such Investor in an amount equal to the Subscription Proceeds
of such Investor, plus any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow
account as calculated by Atlas.
7. Compensation and Expenses of Escrow Agent. Atlas shall be solely
responsible for and shall pay the compensation of the Escrow Agent
for its services hereunder, as provided in Appendix 1 to this
Agreement and made a part hereof, and the charges, expenses
(including any reasonable attorneys' fees), and other out-of-pocket
expenses incurred by the Escrow Agent in connection with the
administration of the provisions of this Agreement. The Escrow Agent
shall have no lien on the Subscription Proceeds deposited in an
escrow account unless and until the Partnership is funded with
cleared Subscription Proceeds of at least $1,000,000 and the Escrow
Agent receives the notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is hereby
granted, a prior lien upon any property, cash, or assets held
hereunder, with respect to its unpaid compensation and nonreimbursed
expenses, superior to the interests of any other persons or
entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated
to accept any notice, make any delivery, or take any other action
under this Escrow Agreement unless the notice or request or demand
for delivery or other action is in writing and given or made by the
party given the right or charged with the obligation under this
Escrow Agreement to give the notice or to make the request or
demand. In no event shall the Escrow Agent be obligated to accept
any notice, request, or demand from anyone other than Atlas or the
Dealer-Manager.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable
for any damages, or have any obligations other than the duties
prescribed herein in carrying out or executing the purposes and
intent of this Escrow Agreement; provided, however, that nothing
herein contained shall relieve the Escrow Agent from liability
arising out of its own willful misconduct or gross negligence.
Escrow Agent's duties and obligations under this Agreement shall be
entirely administrative and not discretionary. Escrow Agent shall
not be liable to any party hereto or to any third party as a result
of any action or omission taken or made by Escrow Agent in good
faith. The parties to this Agreement will indemnify Escrow Agent,
hold Escrow Agent harmless, and reimburse Escrow Agent from, against
and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) Escrow Agent may suffer or
incur by reason of its execution and performance of this Agreement.
In the event any legal questions arise concerning Escrow Agent's
duties and obligations hereunder, Escrow Agent may consult with its
counsel and rely without liability upon written opinions given to it
by such counsel.
The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, authorization, or other paper or
document which the Escrow Agent, in good faith, believes to be
genuine and what it purports to be.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any
other person, resulting in adverse claims or demands being made in
connection with this Agreement, or in the event that Escrow Agent,
in good faith, shall be in doubt as to what action it should take
hereunder, Escrow Agent may, at its option, refuse to comply with
any claims or demands on it or refuse to take any other action
hereunder, so long as such disagreement continues or such doubt
exists; and in any such event, Escrow Agent shall not be or become
liable in any way or to any person for its failure or refusal to act
and Escrow Agent shall be entitled to continue to so refrain from
acting until the dispute is resolved by the parties involved.
National City Bank of Pennsylvania is acting solely as Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement
or matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the
authority of the individuals executing this Agreement to be so
authorized on behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may
resign as such following the giving of thirty days' prior written
notice to the other parties hereto. Similarly, the Escrow Agent may
be removed and replaced following the giving of thirty days' prior
written notice to the Escrow Agent by the other parties hereto. In
either event, the duties of the Escrow Agent shall terminate thirty
days after the date of such notice (or as of such earlier date as
may be mutually agreeable); and the Escrow Agent shall then deliver
the balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in
an escrow account) in its possession to a successor escrow agent as
shall be appointed by the other parties hereto as evidenced by a
written notice filed with the Escrow Agent. If the other parties
hereto are unable to agree upon a successor or shall have failed to
appoint a successor prior to the expiration of thirty days following
the date of the notice of resignation or removal, the then acting
Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor escrow agent or other appropriate
relief; and any such resulting appointment shall be binding upon all
of the parties hereto. Upon acknowledgment by any successor escrow
agent of the receipt of the then remaining balance of the
Subscription Proceeds (and any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow account),
the then acting Escrow Agent shall be fully released and relieved of
all duties, responsibilities, and obligations under this Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent
shall have no further obligation with respect hereto upon the
occurrence of the distribution of all Subscription Proceeds (and any
interest paid or investment income earned thereon while held by the
Escrow Agent in an escrow account) as contemplated hereby or upon
the written consent of all the parties hereto.
12. Notice. Any notices or instructions, or both, to be given
hereunder shall be validly given if set forth in writing and mailed
by certified mail, return receipt requested, as follows:
If to the Escrow Agent:
National City Bank of Pennsylvania
Attention: Mr. Robert Mialki, Vice President
Corporate Trust Department 300
Fourth Avenue
Pittsburgh, Pennsylvania 15278-2331
Phone: (412) 644-8401
Facsimile: (412) 644-7971
If to Atlas:
Atlas Resources, Inc. 311 Rouser
Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: J. R. O'Mara
Phone: (412) 262-2830
Facsimile: (412) 262-2820
If to Anthem:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Coraopolis, Pennsylvania 15108
Attention: Eric D. Koval
Phone: (412) 262-1680
Facsimile: (412) 262-7430
If to Bryan Funding:
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Attention: Richard G. Bryan, Jr.
Phone: (412) 276-9393
Facsimile: (412) 276-9396
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance herewith.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the
benefit of the undersigned and their respective heirs, successors
and assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
ATTEST: As Escrow Agent
By: By:
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.
ATTEST: A Pennsylvania corporation
By: By:
Secretary J.R. O'Mara, President
ANTHEM SECURITIES, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Eric D. Koval, President
BRYAN FUNDING, INC.
ATTEST: A Pennsylvania corporation
By: By: _______________________________________
Secretary Richard G. Bryan, Jr., President
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
By: ATLAS RESOURCES, INC.
ATTEST: Managing General Partner
By: By: ______________________________________
Secretary J. R. O'Mara, President
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
Escrow Agent annual fee per year or any part thereof $3,000.00
Exhibit 25
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and/or directors of Atlas Resources, Inc., a Pennsylvania corporation
which is about to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form SB-2 relating to certain securities of
Atlas-Energy for the Nineties-Public #6 Ltd., constitutes and appoints
James R. O'Mara and Bruce M. Wolf, his/her true and lawful attorney-in
fact, with full power of substitution and resubstitution and with full
power to act without another, for him/her and in his/her name, place and
stead, in any and all capacities, to sign such Registration Statement,
and any and all amendments, including post-effective amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission and
all states and other jurisdictions wherein such Registration Statement
and amendments thereto may be filed for securities compliance measures,
granting unto said attorneys-in-fact and agents, and each of them full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his/her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Dated: July ___16____, 1997
Charles T. Koval, Chairman of the Board and a
Director
Dated: July __16_____, 1997
James R. O'Mara, President, Chief Executive
Officer and a Director
Dated: July ___16____, 1997
Bruce M. Wolf, General Counsel, Secretary and a
Director
Dated: July ___16____, 1997
Donald P. Wagner, Vice President of Operations
Dated: July ___16____, 1997
James J. Kritzo, Vice President of the Land
Department
Dated: July ___16____, 1997
Tony C. Banks, Vice President of Finance and
Chief Financial Officer
Dated: July ___16____, 1997
Frank P. Carolas, Vice President of Geology
Dated: July ___16____, 1997
Barbara J. Krasnicki, Vice President of
Administration
Dated: July __16_____, 1997
Joseph R. Sadowski, a Director
Exhibit 25
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #6 LTD.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and/or directors of Atlas Resources, Inc., a Pennsylvania corporation
which is about to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form SB-2 relating to certain securities of
Atlas-Energy for the Nineties-Public #6 Ltd., constitutes and appoints
James R. O'Mara and Bruce M. Wolf, his/her true and lawful attorney-in
fact, with full power of substitution and resubstitution and with full
power to act without another, for him/her and in his/her name, place and
stead, in any and all capacities, to sign such Registration Statement,
and any and all amendments, including post-effective amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission and
all states and other jurisdictions wherein such Registration Statement
and amendments thereto may be filed for securities compliance measures,
granting unto said attorneys-in-fact and agents, and each of them full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his/her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Dated: July ____16___, 1997 /s/ Charles T. Koval
Charles T. Koval, Chairman of the Board and a
Director
Dated: July ___16____, 1997 /s/ James R. O'Mara
James R. O'Mara, President, Chief Executive
Officer and a Director
Dated: July ___16____, 1997 /s/ Bruce M. Wolf
Bruce M. Wolf, General Counsel, Secretary and a
Director
Dated: July __16_____, 1997 /s/ Donald P. Wagner
Donald P. Wagner, Vice President of Operations
Dated: July ___16____, 1997 /s/ James J. Kritzo
James J. Kritzo, Vice President of the Land
Department
Dated: July ___16____, 1997 /s/ Tony C. Banks
Tony C. Banks, Vice President of Finance and
Chief Financial Officer
Dated: July __16_____, 1997 /s/ Frank P. Carolas
Frank P. Carolas, Vice President of Geology
Dated: July __16_____, 1997 /s/ Barbara J. Krasnicki
Barbara J. Krasnicki, Vice President of
Administration
Dated: July __16_____, 1997 /s/ Joseph R. Sadowski
Joseph R. Sadowski, a Director
