Restricted Business Procedures. (a) Within 30 days following the consummation of the acquisition of an Acquired Exterran Restricted Business or an Acquired Partnership Restricted Business by an Exterran Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran Entity or (y) Exterran, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “Offer”) by the Acquiring Party to sell the Acquired Exterran Restricted Business or the Acquired Partnership Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction. (b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, within 60 days after receipt of the notification called for in Section 2.4(a), the Offeree shall notify the Acquiring Party in writing that either: (i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries to purchase) any of such Offered Assets; or (ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed: A. After the receipt of the Offer by the Offeree, the Acquiring Party and the Offeree shall negotiate in good faith the fair market value of the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets will be sold to the Offeree. If the Acquiring Party and the Offeree agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other terms of the Offer during the 30-day period (the “Offer Period”) after receipt by the Acquiring Party of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition. B. If the Acquiring Party and the Offeree are unable to agree on the fair market value of the Offered Assets that are subject to the Offer or on any other terms of the Offer during the Offer Period, the Acquiring Party and the Offeree will engage an independent investment banking firm prior to the end of the Offer Period to determine the fair market value of the Offered Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to all information prepared by or on behalf of the Acquiring Party relating to the Offered Assets and reasonably requested by the investment banking firm. In determining the terms on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determination, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership): 1. purchase the Offered Assets on such terms as determined above; or 2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
Appears in 5 contracts
Samples: Omnibus Agreement (Exterran Partners, L.P.), Omnibus Agreement (Exterran Holdings Inc.), Omnibus Agreement (Exterran Partners, L.P.)
Restricted Business Procedures. (a) Within 30 days following the consummation of the acquisition of an Acquired Exterran Restricted Business or an Acquired Partnership Restricted Business by an Exterran Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran Entity or (y) Exterran, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “Offer”) by the Acquiring Party to sell the Acquired Exterran Restricted Business or the Acquired Partnership Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction.
(b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, within 60 days after receipt of the notification called for in Section 2.4(a), the Offeree shall notify the Acquiring Party in writing that either:
(i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries to purchase) any of such Offered Assets; or
(ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed:
A. After the receipt of the Offer by the Offeree, the Acquiring Party and the Offeree shall negotiate in good faith the fair market value of the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets will be sold to the Offeree. If the Acquiring Party and the Offeree agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other terms of the Offer during the 30-day period (the “Offer Period”) after receipt by the Acquiring Party of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
B. If the Acquiring Party and the Offeree are unable to agree on the fair market value of the Offered Assets that are subject to the Offer or on any other terms of the Offer during the Offer Period, the Acquiring Party and the Offeree will engage an independent investment banking firm prior to the end of the Offer Period to determine the fair market value of the Offered Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to all information prepared by or on behalf of the Acquiring Party relating to the Offered Assets and reasonably requested by the investment banking firm. In determining the terms on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determination, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership):
1. purchase the Offered Assets on such terms as determined above; or
2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.the
Appears in 2 contracts
Samples: Omnibus Agreement (Exterran Partners, L.P.), Omnibus Agreement (Exterran Holdings Inc.)
Restricted Business Procedures. (a) Within 30 days following the consummation of the acquisition of an Acquired Exterran UCH Restricted Business or an Acquired Partnership Restricted Business by an Exterran a UCH Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as as, an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran UCH Entity or (y) ExterranUCH, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “Offer”) by the Acquiring Party to sell the Acquired Exterran UCH Restricted Business or the Acquired Partnership Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction.
(b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, within 60 days after receipt of the notification called for in Section 2.4(a), the Offeree shall notify the Acquiring Party in writing that either:
(i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries to purchase) any of such Offered Assets; or
(ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran UCH Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed:
A. After the receipt of the Offer by the Offeree, the Acquiring Party and the Offeree shall negotiate in good faith the fair market value of the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets will be sold to the Offeree. If the Acquiring Party and the Offeree agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other terms of the Offer during the 30-day period (the “Offer Period”) after receipt by the Acquiring Party of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
B. If the Acquiring Party and the Offeree are unable to agree on the fair market value of the Offered Assets that are subject to the Offer or on any other terms of the Offer during the Offer Period, the Acquiring Party and the Offeree will engage an independent investment banking firm prior to the end of the Offer Period to determine the fair market value of the Offered Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to all information prepared by or on behalf of the Acquiring Party relating to the Offered Assets and reasonably requested by the investment banking firm. In determining the terms on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determination, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership):
1. purchase the Offered Assets on such terms as determined above; or
2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
Appears in 2 contracts
Samples: Omnibus Agreement (Universal Compression Partners, L.P.), Omnibus Agreement (Universal Compression Holdings Inc)
Restricted Business Procedures. (a) Within 30 days following the consummation of the acquisition of an Acquired Exterran Archrock Restricted Business or an Acquired Partnership Restricted Business by an Exterran Archrock Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran Archrock Entity or (y) ExterranArchrock, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “Offer”) by the Acquiring Party to sell the Acquired Exterran Archrock Restricted Business or the Acquired Partnership Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction.
(b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, within 60 days after receipt of the notification called for in Section 2.4(a), the Offeree shall notify the Acquiring Party in writing that either:
(i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries to purchase) any of such Offered Assets; or
(ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran Archrock Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed:
A. After the receipt of the Offer by the Offeree, the Acquiring Party and the Offeree shall negotiate in good faith the fair market value of the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets will be sold to the Offeree. If the Acquiring Party and the Offeree agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other terms of the Offer during the 30-day period (the “Offer Period”) after receipt by the Acquiring Party of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties Parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
B. If the Acquiring Party and the Offeree are unable to agree on the fair market value of the Offered Assets that are subject to the Offer or on any other terms of the Offer during the Offer Period, the Acquiring Party and the Offeree will engage an independent investment banking firm prior to the end of the Offer Period to determine the fair market value of the Offered Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to all information prepared by or on behalf of the Acquiring Party relating to the Offered Assets and reasonably requested by the investment banking firm. In determining the terms on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determination, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership):
1. purchase the Offered Assets on such terms as determined above; or
2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties Parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
Appears in 2 contracts
Samples: Omnibus Agreement (Archrock, Inc.), Omnibus Agreement (Archrock Partners, L.P.)
Restricted Business Procedures. (a) Within 30 days following the consummation of the acquisition of an Acquired Exterran UCH Restricted Business or an Acquired Partnership Restricted Business by an Exterran a UCH Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as as, an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran UCH Entity or (y) ExterranUCH, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “Offer”) by the Acquiring Party to sell the Acquired Exterran UCH Restricted Business or the Acquired Partnership Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction.
(b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, within 60 days after receipt of the notification called for in Section 2.4(a), the Offeree shall notify the Acquiring Party in writing that either:
(i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries Subsdiaries to purchase) any of such Offered Assets; or
(ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran UCH Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed:
A. After the receipt of the Offer by the Offeree, the Acquiring Party and the Offeree shall negotiate in good faith the fair market value of the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets will be sold to the Offeree. If the Acquiring Party and the Offeree agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other terms of the Offer during the 30-day period (the “Offer Period”) after receipt by the Acquiring Party of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
B. If the Acquiring Party and the Offeree are unable to agree on the fair market value of the Offered Assets that are subject to the Offer or on any other terms of the Offer during the Offer Period, the Acquiring Party and the Offeree will engage an independent investment banking firm prior to the end of the Offer Period to determine the fair market value of the Offered Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to all information prepared by or on behalf of the Acquiring Party relating to the Offered Assets and reasonably requested by the investment banking firm. In determining the terms on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determination, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership):
1. purchase the Offered Assets on such terms as determined above; or
2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
Appears in 1 contract
Samples: Omnibus Agreement (Universal Compression Partners, L.P.)
Restricted Business Procedures. If any Management Stockholder, Xxxxx or the Company or any of the Company’s Subsidiaries acquires a Midstream Business that is not a Midstream Oil Business but includes Midstream Oil Assets valued in excess of $10 million as of the date of acquisition, as determined in good faith by the Company’s board of directors (a) Within such Midstream Oil Assets, a “Restricted Business”), then not later than 30 days following after the consummation of the acquisition of an Acquired Exterran Restricted Business or an Acquired Partnership Restricted Business by an Exterran Entity or a Partnership Entity, as the case may be (in each such case such acquiring Person shall be referred to as an “Acquiring Party”), the Acquiring Party shall notify in writing (x) the Partnership, if the Acquiring Party is a Exterran Entity or (y) Exterran, if the Acquiring Party is a Partnership Entity, of such acquisition. The Person that is so notified shall be referred to herein as the “Offeree.” Such notice shall include an offer (the “OfferOil Assets Purchaser”) by of the Acquiring Party Midstream Business, the Oil Assets Purchaser shall notify MLP of such purchase and offer MLP (or cause an offer to sell be made to MLP of) the Acquired Exterran Restricted Business or the Acquired Partnership opportunity to purchase such Restricted Business, as the case may be (the “Offered Assets”), to the Offeree, together with a proposed definitive agreement to effectuate the purchase and sale of the Offered Assets (the “Purchase Agreement”). The Offer shall set forth the Acquiring Party’s proposed terms relating to the sale of the Offered Assets to the Offeree, including the purchase price, any liabilities to be assumed by the Offeree as part of the Offer and the other terms of the Offer; provided, that the representations and warranties regarding the Offered Assets and the indemnification provision contained in the Purchase Agreement shall be substantially consistent with the terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets, subject to such adjustments that the Acquiring Party reasonably determines are necessary to reflect the differences in the transaction.
(b) As soon as practicable after the Offer is made, the Acquiring Party will deliver to the Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable, but in any event, If within 60 30 days after receipt of such notification, MLP fails to notify the notification called for in Oil Assets Purchaser of its intentions with respect to the Restricted Business, all rights under this Section 2.4(a)2.6 with respect to such Restricted Business will terminate and the Oil Assets Purchaser may continue to own and operate such Restricted Business. For the avoidance of doubt, the Offeree provisions of this Section 2.6 shall notify not apply to any Structured Investment. If MLP notifies the Acquiring Party in writing Oil Assets Purchaser that either:
(i) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) has elected not to purchase (or not to cause any of its Subsidiaries to purchase) any of such Offered Assets; or
(ii) the Offeree (with the concurrence of the Conflicts Committee if the Offeree is the Partnership) MLP has elected to purchase (or to cause any of its Subsidiaries to purchase) all of such Offered Assets; provided, that if the Offeree is the Partnership, and in the opinion of outside counsel to the Partnership Entities, less than 90% of the gross income from the operations of such Offered Assets consists of “qualifying income” under Section 7704 of the Code (such portion of such Offered Assets that does not so qualify being referred to herein as the “Non-Qualifying Restricted Business”), then the Partnership (with the concurrence of the Conflicts Committee) may condition its obligation to purchase the Non-Qualifying Business (but not the portion of the Offered Assets that do not constitute the Non-Qualifying Business (the “Qualifying Business”)) on the conversion of the agreements pursuant to which the Non-Qualifying Business provides Competitive Services to its customers to agreements substantively similar to the Form Compression Services Agreement from a federal income tax treatment perspective (from the Partnership’s perspective) and otherwise having substantially the same economic terms as the agreements being converted (the “Conversion Condition”); provided further, that in such event, each of the Exterran Entities and the Partnership Entities shall use commercially reasonable efforts to satisfy the Conversion Condition as soon as commercially practicable. If the Offeree elects to purchase the Offered Assets, the following procedures shall be followed:
A. After (a) The Oil Assets Purchaser shall submit a good faith offer to MLP to sell the receipt of Restricted Business (the Offer by “Offer”) to MLP on the Offeree, terms and for the Acquiring Party consideration stated in the Offer.
(b) The Oil Assets Purchaser and the Offeree MLP shall negotiate in good faith faith, for 60 days after receipt of such Offer by the fair market value of MLP, the Offered Assets that are subject to the Offer (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and the other terms of the Offer on which the Offered Assets Restricted Business will be sold to MLP. The Oil Assets Purchaser shall provide all information concerning the Offeree. business, operations and finances of such Restricted Business as MLP may reasonably request.
(i) If the Acquiring Party Oil Assets Purchaser and the Offeree MLP agree (with the concurrence of the Conflicts Committee) on the fair market value of the Offered Assets that are subject to the Offer and the other such terms of the Offer during the 30-day period (the “Offer Period”) within 60 days after receipt by the Acquiring Party MLP of the Offeree’s election to purchase (or to cause any Subsidiary of the Offeree to purchase) the Offered AssetsOffer, the Offeree MLP shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets Restricted Business on such terms as soon as commercially practicable after such agreement has been reached, which obligation may require such parties to consummate the purchase and sale of the Qualifying Business prior to satisfaction of the Conversion Condition.
B. (ii) If the Acquiring Party Oil Assets Purchaser and the Offeree MLP are unable to agree on the fair market value terms of a sale during such 60-day period, the Oil Assets Purchaser shall attempt to sell the Restricted Business to a Person that is not an Affiliate of the Offered Oil Assets that are subject to the Offer or on any other terms Purchaser (a “NonAffiliate Purchaser”) within nine months of the Offer during termination of such 60-day period. Any such sale to a NonAffiliate Purchaser must be for a purchase price, as determined in good faith by the Offer PeriodCompany’s board of directors, not less than 95% of the purchase price last offered by MLP.
(c) If, after the expiration of such nine-month period, the Acquiring Party and Oil Assets Purchaser has not sold the Offeree will engage an independent investment banking firm prior Restricted Business to a NonAffiliate Purchaser, it shall submit another Offer (the end “Second Offer”) to MLP within seven days after the expiration of the Offer Period to determine the fair market value of the Offered such nine-month period. The Oil Assets (including the specific fair market value of any Offered Assets that constitute a Non-Qualifying Business) and/or the other terms on which the Acquiring Party and the Offeree are unable to agree. In determining the fair market value and other terms on which the Offered Assets are to be sold, the investment banking firm will have access to the proposed sale and purchase values and terms for the Offer submitted by the Acquiring Party and the Offeree, respectively, and to Purchaser shall provide all information prepared by or on behalf concerning the business, operations and finances of the Acquiring Party relating to the Offered Assets and such Restricted Business as may be reasonably requested by MLP.
(i) If MLP elects not to negotiate with the investment banking firm. In determining Oil Assets Purchaser regarding the Second Offer, the Oil Assets Purchaser shall be free to continue to engage in such Restricted Business.
(ii) If MLP elects to purchase such Restricted Business, then MLP and the Oil Assets Purchaser shall negotiate the terms of such purchase for 60 days. If the Oil Assets Purchaser and MLP agree on which the Offered Assets are to be sold (other than the fair market value of the Offered Assets), the investment banking firm shall give substantial weight to the such terms contained in the definitive purchase agreement pursuant to which the Acquiring Party acquired the Offered Assets or the entity that owned the Offered Assets. Such investment banking firm will determine the fair market value of the Offered Assets and/or the other terms on which the Acquiring Party and the Offeree are unable to agree within 60 days of its engagement and furnish the Acquiring Party and the Offeree its determination. The fees and expenses after receipt by MLP of the investment banking firm will be divided equally between the Acquiring Party and the Offeree. Upon receipt of such determinationSecond Offer, the Offeree will have the option, but not the obligation, to (with the concurrence of the Conflicts Committee if the Offeree is the Partnership):
1. MLP shall purchase the Offered Assets on such terms as determined above; or
2. elect not to purchase such Offered Assets. If the Offeree elects to so purchase the Offered Assets, the Offeree shall purchase (or cause any of its Subsidiaries to purchase) and the Acquiring Party shall sell the Offered Assets Restricted Business on such terms as soon as commercially practicable after such agreement has been reached.
(iii) If during such 60-day period, no agreement has been reached between the Oil Assets Purchaser and MLP, the Oil Assets Purchaser and MLP will engage an independent investment banking firm with a national reputation to determine the value of the Restricted Business. Such investment banking firm will determine the value of the Restricted Business within 30 days and furnish the Oil Assets Purchaser and MLP its opinion of such value. The Oil Assets Purchaser and MLP will each pay one-half of the fees and expenses of such investment banking firm. Upon receipt of such opinion, the MLP shall have the option to (A) purchase the Restricted Business for an amount equal to the value determined by such investment banking firm or (B) decline to purchase such Restricted Business, in which obligation event the Oil Assets Purchaser will be free to continue to engage in such Restricted Business.
(d) MLP may require not avail itself of its rights under this Section 2.6 unless it executes (and the Oil Assets Purchaser would also be required to execute) a confidentiality agreement having the following provisions.
(i) each shall acknowledge that it, its Affiliates and its and its Affiliates’ employees, agents, advisors or representatives (collectively, “representatives”) possess and may thereafter obtain, confidential business, commercial, technical, financial and operational information from the other parties to such agreement, their respective Affiliates and their respective businesses and which relates to the past, ongoing or future operations of the Restricted Business and the Oil Assets Purchaser’s business and operations (collectively, such information, whether obtained in written form, visually (such as by inspection) or orally, is hereinafter referred to as “Confidential Information”). For purposes of such agreement, the “Confidential Information of a party” would include the Confidential Information of such Person’s Affiliates. With respect to such Confidential Information, each of the Oil Assets Purchaser and MLP would covenant to the other as follows:
(ii) Each party would agree to exercise the same degree of care as it uses in protecting its own Confidential Information from disclosure (but not less than reasonable care), to make no disclosure of any Confidential Information received from any other party, and would further agree to make no use of any Confidential Information received from any other party except, in each case, in connection with the transactions contemplated by the potential transfer of the Restricted Business. Notwithstanding the foregoing, to the extent required by law, any such parties (and each representative of such parties) would be permitted to consummate disclose to any and all Persons, without limitation of any kind, the purchase tax treatment and sale any facts that may be relevant to the tax structure of any such transaction, provided, however, that no such party (and no employee, representative, or other agent thereof) would be entitled to disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Qualifying Business transaction (including the identity of any party and any information that could lead another to determine the identity of any party), or any other information to the extent that such disclosure could result in a violation of any federal or state securities law.
(iii) The obligations of non-disclosure and restricted use contained in such agreement would not apply to any of the disclosing party’s Confidential Information that:
(1) was available to the public prior to satisfaction the date such Confidential Information was disclosed to the receiving party;
(2) became available to the public through no fault of the Conversion Conditionreceiving party subsequent to the date such Confidential Information was disclosed to the receiving party;
(3) was in the possession of the receiving party prior to the date such Confidential Information was disclosed to the receiving party, and was not obtained by the receiving party from a third party having an obligation of confidentiality to the disclosing party regarding such Confidential Information;
(4) was hereafter rightfully obtained by the receiving party from a third party not under an obligation of confidentiality to the disclosing party regarding such Confidential Information; or
(5) was independently developed by employees of the receiving party without using the Confidential Information of the disclosing party. It would not be a breach of the obligation of non-disclosure contained in such agreement if a receiving party disclosed any Confidential Information as required by law or judicial proceeding; provided, however, that such disclosure would be excused only to the extent such disclosure was required by law or such proceeding and only if, to the extent reasonably practicable, the receiving party provided prior written notice to the disclosing party sufficient to allow the disclosing party an opportunity to oppose or attempt to limit the required disclosure, and only if the receiving party itself used reasonable efforts to ensure that the confidentiality of the Confidential Information is protected by court or administrative order at no cost to such receiving party.
(i) Each party would have the right to disclose to its Affiliates and representatives (collectively, its “Permitted Receiving Persons”) all Confidential Information received under such agreement; however each receiving party would warrant that its Permitted Receiving Persons would comply with all of the obligations set out in such agreement, and would further agree to be responsible for all harm caused by any non-compliance by any Permitted Receiving Person of the receiving party with any of the obligations set out in such agreement, to the same extent the receiving party would have been responsible under applicable law for its own breach of the same obligations.
(ii) Each party would agree to use reasonable efforts to inform all of its Permitted Receiving Persons to whom Confidential Information of any other party is disclosed, of the existence of such agreement and of the confidential nature of such Confidential Information.
Appears in 1 contract
