July 14, 2006
Mr. Felix J. Dawson
Chief Executive Officer
Constellation Energy Resources LLC
111 Market Place
Baltimore, Maryland 21202
Re: Constellation Energy Resources LLC
Registration Statement on Form S-1
Filed June 14, 2006
File No. 333-134995
Dear Mr. Dawson:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Form S-1
General
1. Many of our comments apply to disclosure that appears in more
than
one place. To eliminate the need for us to issue repetitive
comments, please make corresponding changes to all affected
disclosure throughout your document.
2. Provide current and updated disclosure with each amendment.
For
example, update the status of your expectation to have your common
stock quoted on the New York Stock Exchange. Also, provide
updated
accountants` consents with each amendment.
Further, in this regard, we will need the opportunity to review
all
new disclosure, including any additional proposed artwork or
graphics
and your intended hedging policy. Similarly, we will need the
opportunity to review all omitted exhibits, including the legal
opinion and underwriting agreement. To expedite the review
process,
please provide all this information and all these documents
promptly.
We may have additional comments.
3. Please provide the estimated per share price range of the
offering
or advise us of the proposed price range. You will need to
include a
definitive price range prior to effectiveness and we will need
sufficient to review the resulting additional disclosures.
Summary, page 1
4. Revise to provide a more balanced overview of your business
within
the first few pages of this section. You discuss your business
strategy and competitive strengths, but do not mention the more
significant challenges and material risks you face until several
pages later. For instance, it is not until page 13 that you
mention
the percentage of the initial quarterly distribution amount you
would
have been able to pay on your Class A and common units based on
your
pro forma available cash for the twelve months ended March 31,
2006.
Please revise accordingly.
5. You repeat much of this section word for word in the Business
section. Revise this section to summarize and highlight the
principal aspects of your business and to eliminate repetitive
disclosure.
The Transactions and Limited Liability Company Structure, page 6
6. You describe here, as well as on pages 126 and 128, that
certain
undivided mineral interests, denoted as the "Floyd Shale Rights,"
will be distributed to an affiliate prior to the closing of the
offering. However, it is unclear what value is associated with
these
rights you have relinquished, and what is being received by you in
return for such rights. Additionally, there does not appear to be
any recognition of this transaction in your unaudited pro forma
financial statements included elsewhere in your filing. Please
expand your disclosures to include this additional information.
The Offering, page 9
7. We refer you to your discussion of the Limited Call Right.
Please
advise us as to what consideration was given as to the need to
comply
with the tender offer rules and file a Schedule TO when or if this
right is exercised. If you believe an exemption from the tender
offer rules is available to you, please advise.
Risk Factors, page 24
8. All risk factors should be no longer than one or two short
paragraphs. Identify the risk, include a cross-reference to more
detailed disclosure elsewhere if appropriate, and eliminate all
excess detail. Many of your risk factors are too detailed and
contain excessive bullet points, for example the first one. Where
you discuss multiple risks under one caption, break the discussion
into separate factors and include appropriate captions for each.
9. In a number of places in the risk factor section you use
variations of the phrase "material adverse effect." Please revise
to
add disclosure describing and expressing the specific and
immediate
effects to the investors. Also, rather than indicating that you
"cannot assure" a particular outcome, revise to state the risk
plainly and directly.
Our operations expose us to significant costs and liabilities....,
page 39
10. If material, inform us of your potential exposure to and the
dollar amount of reserves established for exposure to
environmental
liabilities. We note that you may be unable to predict the
ultimate
cost of compliance or the extent of liability risks.
We are subject to complex federal, state, local and other laws and
regulations...., page 41
11. Please provide a more detailed discussion in this section or
provide a cross-reference to other disclosure that addresses the
governmental rules and regulations, including federal, state and
local government rules and regulations, which impact your business
activities. For example, you state that you must obtain and
maintain
numerous permits, approvals and certificates in order to conduct
your
operations. Please discuss the requirements for these permits,
whether you have obtained such permits or the status of your
application for the permits and the regulatory body responsible
for
granting the permits. We may have further comments.
Use of Proceeds, page 50
12. Please expand your disclosure in note (a) so that the amount
of
net proceeds of $109.1 million is mathematically determinable from
the information provided; it appears you would need to include
amounts related to underwriting discounts and commissions, assumed
offering price and estimated offering expenses.
How We Make Cash Distributions, page 53
Management Incentive Interests, page 57
13. We note that you describe the criteria and thresholds CERM
must
attain to obtain the right to receive 15 percent of available cash
from operating surplus, after the target distribution has been
achieved. Please disclose your view of the reasonable likelihood
of
this incentive threshold being achieved, the expected amounts or
range of amounts that would be paid under this scenario, and
timing
of such payments in the liquidity section of your MD&A, to comply
with Item 303(a)(1) of Regulation S-K. If you believe the amounts
would not be material, include disclosure to this effect and
submit
the analyses forming the basis for your conclusions in this
regard.
Cash Distribution Policy and Restrictions on Distributions, page
63
Rationale for Our Cash Distribution Policy, page 63
14. Revise this section to provide additional key facts about your
cash distribution policy, rather than simply offering a cross-
reference. For example, state the distribution amount, the
attributes including whether the distributions are cumulative, and
whether you historically have paid cash distributions.
Restrictions and Limitations on Our Ability to Make Quarterly
Distributions, page 63
15. Revise this section to state also that in addition to there
being
no guarantee that unitholders will receive quarterly
distributions,
unitholders also have no contractual or other legal right to the
quarterly distributions.
Our Estimated Adjusted EBITDA, page 69
16. Revise this section to ensure that each revenue or expense you
anticipate over the next four quarters is balanced with comparable
historical amounts. For example, how you reached your forecasted
production volumes, natural gas prices, SG&A, and maintenance
capital
expenditures will be better understood when compared to historical
amounts, similar to the disclosure you provide in MD&A.
17. Please clarify whether you would borrow, if necessary, to pay
the
expected minimum quarterly distributions. For instance, discuss
whether your limited liability company agreement permits you to
borrow funds to pay the distributions on all outstanding units in
the
event you have not generated sufficient cash from operations. We
note your assumption that you will borrow $5.3 million to fund
your
investment capital expenditures and distributions on your Class D
interests.
Also, clarify whether you assume all debt will be refinanced as it
comes due since you do not intend to build-up cash to meet
repayment
obligations.
Unaudited Pro Forma Available Cash to Pay Distributions, page 74
18. Since your historical excess cash available to pay
distributions
would have been insufficient to pay your expected distributions
per
unit, indicate in the table from where you would have obtained the
additional cash, such as through borrowings.
Management`s Discussion and Analysis..., page 82
Overview, page 82
19. Consider revising your overview to identify the material
opportunities, challenges and risks on which management is most
focused, both on a short and long-term basis. Please refer to FRC
501.12 and Release No. 34-48960 for additional guidance.
Management , page 120
20. Please revise the sketch for Felix Dawson to provide a
complete
and unambiguous five year business history. For instance, it is
unclear how long he worked at Goldman Sachs.
Certain Relationships and Related Party Transactions, page 126
21. Further explain why your distribution of Floyd Shale Rights
does
not fit your investment strategy.
Underwriting, page 165
22. With a view toward disclosure, describe any agreements or
understandings, explicit or tacit, relating to the early release
of
any of the locked-up shares. We note that the lock-up agreements
may
be released at any time without notice.
Notes to Consolidated Financial Statements, page F-7
Note 8 - Natural Gas Properties, page F-22
23. We note that you identify asset retirement costs as a separate
line item in your table of natural gas properties for each year,
which is somewhat contrary to the guidance in paragraph 11 of SFAS
143, requiring adjustment to the asset to which an asset
retirement
liability relates, and the accounting policy you disclose in Note
13
on page F-24. Accordingly, we believe you should reclassify the
asset retirement costs to the related asset line items to which
the
corresponding asset retirement obligation relates. The amount of
asset retirement costs included may be described in a footnote to
the
schedule, if so desired. Corresponding adjustments should also be
made to the information provided in Note 17 on page F-27. You may
refer to our February 2004 industry letter for guidance on related
topics, accessible on our website at the following address:
http://www.sec.gov/divisions/corpfin/guidance/oilgasletter.htm
Unaudited Pro Forma Financial Statements, page F-32
Note 1 - Pro Forma Adjustments and Assumptions, page F-36
24. We note that Everlast Energy LLC had entered into derivative
contracts to hedge against market fluctuations in the price of
natural gas; and that in conjunction with your acquisition, you
assigned these derivatives to an affiliate in exchange for equity.
Since you eliminate the historical effects of holding the
derivative
instruments in your pro forma statement of operations, the
suggestion
appears to be that no similar hedging will be conducted by you
prospectively. Please modify your disclosure to clarify.
If you intend to hedge in the future, tell us the reasons you
believe
removing the historical activity results in a more meaningful
presentation; as it would not otherwise appear that adjusting the
historical results would be appropriate. Under this scenario, it
would be helpful for you to disclose the nature and structure of,
and
any parties that may be involved in, hedging programs for which
you
may derive benefits or costs in the future.
Undertakings, page II-2
25. Include the undertakings Item 512(a) of Regulation S-K
requires.
Engineering Comments
General
26. Please provide your reserve report as of December 31, 2005 by
Netherland Sewell & Associates.
Summary, page 1
Constellation Energy Resources LLC, page 1
27. Please reconcile your statement that you have an average
reserve
life of about 25 years when it appears to calculate to over 44
years.
Revise your document as necessary.
28. Please remove the reference to the estimated recoverable coal-
bed
methane gas reserves in the Black Warrior Basin as these do not
represent proved reserves.
Competitive Strengths, page 2
Summary Reserve and Operating Data, page 21
29. Please explain to us why NSAI did not take the following into
consideration when they provided their reserve estimate:
* the well performance from new wells in the Robinson Bend field;
* your estimated drilling schedule over the next six years;
* reserves attributable to the NPI.
Risk Factors, page 24
Unless we replace the reserves that we produce......., page 27
30. Please reconcile your statement that your proved producing
reserves are declining at a rate of 5% per year with the fact that
your overall production declined by over 44% from the previous
year.
Locations that we decide to drill....., page 37
31. Please remove the mitigating language about your past drilling
success rate.
We depend on a limited number of key personnel......, page 41
32. Key personnel frequently leave companies and the companies
hire
replacements and continue to operate in a similar manner with no
significant harm. Please expand your disclosure to explain why
you
believe it is reasonable to conclude that this would not be the
case
for your company and identify your key personnel or alternatively,
remove this risk factor. Also, please indicate if you do not
carry
key man insurance.
We will incur increased costs as a result of having become a
public
company, page 41
33. Every public company bears increased costs of being a public
company. Please disclose why this is even more critical or
important
to your company versus others. Alternatively, please remove this
risk factor.
Our Estimated Adjusted EBITDA, page 69
34. Please explain your estimated net production rate of 4.9 BCF
per
year in the estimated adjusted EBITDA calculation. We note that
last
year you produced just over 2.5 BCF and the additional work that
you
plan appears to only produce about 1 BCF per year.
Business, page 101
Overview, page 101
35. Please include disclosure that coal-bed methane wells
typically
produce at much lower rates and have lower reserve volumes than
conventional gas wells. Include the fact that the lower
production
rates and reserves and the higher water production provides, on
average, less favorable economics than conventional gas wells.
Natural Gas Data, page 107
Proved Reserve Data, page 107
36. You state that Everlast did not base their reserve volumes on
the
SEC definition of proved reserves. Therefore, you should not
disclose those reserve volumes. In addition, your reserve
reconciliation table should follow the format described in
paragraph
11 of FASB 69. The reserve at the end of a year should be the
reserves for the beginning of the next year with the changes in
reserves during the year shown by the categories described in
paragraph 11. Please revise your document wherever it is
necessary.
Production and Price History, page 109
37. Tell us if the production rates disclosed include the
production
attributed to the NPI.
38. Tell us if the average unit cost per Mcf includes the
production
volumes attributed to the NPI.
Finding Costs, page 112
39. It appears that these costs are more accurately described as
development costs as you are drilling within the same field where
coal-bed methane has been known to exist for decades and the
majority
of the gas was previously categorized as proved undeveloped
reserves.
In addition, as these are non-GAAP measures, please revise your
document to explain how you use this measure, why it is important
to
investors and the exact method used to calculate it or
alternatively
remove this disclosure.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact Donald Delaney at (202) 551-3863 or, in his
absence, Karl Hiller, Branch Chief, at (202) 551-3686 if you have
questions regarding comments on the financial statements and
related
matters. Please contact James Murphy, Petroleum Engineer, at
(202)
551-3703 if you have questions regarding comments on the
engineering
matters. Please contact Jason Wynn at (202) 551-3756 or, in his
absence, me at (202) 551-3740 with any other questions. Direct
all
correspondence to the following ZIP code: 20549-7010.
Sincerely,
H. Roger Schwall
Assistant Director
cc: D. Delaney
K. Hiller
J. Wynn
J. Murphy
via facsimile
G. Michael O`Leary
Andrews Kurth L.L.P.
(713) 238-7130
Mr. Felix J. Dawson
Constellation Energy Resources LLC
July 14, 2006
page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF CORPORATION FINANCE
MAIL STOP 7010