Exhibit 10.11
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT ("Agreement") is entered into on, and effective
as of, the Closing Date, by and among Atlas Pipeline Holdings, L.P.
("Holdings"), a Delaware limited partnership, Atlas Pipeline Holdings GP, LLC, a
Delaware limited liability company ("Holdings GP"), and Atlas Pipeline Partners,
L.P., a Delaware limited partnership (the "MLP").
In consideration of the premises and the covenants, conditions, and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
(a) Capitalized terms used herein but not defined herein shall have the
meanings given them in the MLP Agreement.
(b) As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Closing Date" shall mean the closing of the initial public
offering of common units representing limited partner interests in
Atlas Pipeline Holdings, L.P.
"Holdings Conflicts Committee" shall mean the "Conflicts
Committee" as defined in the Amended and Restated Agreement of Limited
Partnership of Holdings.
"Holdings Entities" shall mean Holdings and Holdings GP.
"MLP Agreement" shall mean the Second Amended and Restated
Agreement of Limited Partnership of the MLP, dated as of March 9, 2004,
as the same may be amended.
"MLP Conflicts Committee" shall mean the "Conflicts Committee"
as defined in the MLP Agreement.
"MLP Entities" shall mean the MLP and any of its subsidiaries.
"MLP Group" shall mean the MLP and all of its subsidiaries.
ARTICLE II
BUSINESS OPPORTUNITIES
Section 2.1 Restricted Businesses. For as long as Holdings or any of
its subsidiaries is the general partner of the MLP, if a Holdings Entity is
presented with an opportunity to pursue, purchase or invest in any business
opportunity (a "Business Opportunity") with respect to a business activity in
which the MLP is engaged as of the Closing Date (a "Restricted Business"), the
Holdings Entity shall give prompt written notice to the MLP of the Business
Opportunity. Such notice shall set forth all information available to the
Holdings Entity including, but not limited to, the identity of the Business
Opportunity and its seller, the proposed price, all written information about
the Business Opportunity provided to the Holdings Entity by and on behalf of the
seller as well as any information or analyses compiled by the Holdings Entity
from other sources (such information referred to collectively herein as
"Business Opportunity Information"). The Holdings Entity shall continue to
provide to the MLP promptly any and all Business Opportunity Information
subsequently received. Within a time period specified by the Holdings Entity's
notice, which shall be a reasonable time under the circumstances, the MLP shall
advise the Holdings Entity in writing whether MLP wishes to acquire the Business
Opportunity. If the MLP advises the Holdings Entity of its intent to acquire the
Business Opportunity, the Holdings Entities shall refrain from making an offer
for the Business Opportunity except as permitted hereunder. If the MLP (i)
advises the Holdings Entity that (with the approval of the MLP Conflicts
Committee) it does not intend to acquire the Business Opportunity, (ii) advises
the Holdings Entity of its intent to acquire the Business Opportunity but does
not complete the acquisition within a reasonable time after the MLP's notice of
its intent to the Holdings Entity or (iii) fails to timely advise the Holdings
Entity of its intent, any of the Holdings Entities shall be free to acquire the
Business Opportunity.
Section 2.2 Scope of Restricted Business Prohibition. Except as
provided in this Article II and the Amended and Restated Agreement of Limited
Partnership of Holdings, as the same may be amended from time to time, each
Holdings Entity shall be free to engage in any business activity whatsoever,
including those that may be in direct competition with any MLP Entity.
Section 2.3 Enforcement. The Holdings Entities agree and acknowledge
that the MLP Group does not have an adequate remedy at law for the breach by the
Holdings Entities of the covenants and agreements set forth in this Article II,
and that any breach by the Holdings Entities of the covenants and agreements set
forth in Article II would result in irreparable injury to the MLP Group. The
Holdings Entities further agree and acknowledge that any member of the MLP Group
may, in addition to the other remedies which may be available to the MLP Group
hereunder or under applicable law, file a suit in equity to enjoin the Holdings
Entities from such breach, and the Holdings Entities consent to the issuance of
injunctive relief hereunder.
ARTICLE III
MISCELLANEOUS
Section 3.1 Choice of Law; Submission to Jurisdiction. This Agreement
shall be subject to and governed by the laws of the State of Delaware, excluding
any conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state.
Section 3.2 Notice. All notices or requests or consents provided for or
permitted to be given pursuant to this Agreement must be in writing and must be
given by depositing same in the United States mail, addressed to the Person to
be notified, postpaid, and registered or certified with return receipt requested
or by delivering such notice in person or by telecopier or telegram to such
party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices to be sent to a party
pursuant to this Agreement shall be sent to or made at the address set forth
below such party's signature to this Agreement, or at such other address as such
party may stipulate to the other parties in the manner provided in this Section
3.2.
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Section 3.3 Entire Agreement; Supersedure. This Agreement constitutes
the entire agreement of the parties relating to the matters contained herein,
superseding all prior contracts or agreements, whether oral or written, relating
to the matters contained herein.
Section 3.4 Effect of Waiver or Consent. No waiver or consent, express
or implied, by any party to or of any breach or default by any Person in the
performance by such Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a party to complain of any act of any Person
or to declare any Person in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder
until the applicable statute of limitations period has run.
Section 3.5 Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the parties
hereto; provided, however, that (i) the MLP may not, without the prior approval
of the MLP Conflicts Committee, agree to any amendment or modification of this
Agreement that, in the reasonable discretion of Atlas Pipeline Partners GP, LLC,
will adversely affect the holders of MLP common units; and (ii) Holdings may
not, without the prior approval of the Holdings Conflicts Committee, agree to
any amendment or modification of this Agreement that, in the reasonable
discretion of Holdings, will adversely affect the holders of Holdings common
units. Each such instrument shall be reduced to writing and shall be designated
on its face an "Amendment" or an "Addendum" to this Agreement.
Section 3.6 Assignment. No Party shall have the right to assign its
rights or obligations under this Agreement without the consent of the other
parties hereto.
Section 3.7 Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if all Parties had signed the same
document. All counterparts shall be construed together and shall constitute one
and the same instrument.
Section 3.8 Severability. If any provision of this agreement or the
application thereof to any person or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
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Section 3.9 Gender, Parts, Articles and Sections. Whenever the context
requires, the gender of all words used in this Agreement shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural. All references to Article numbers and Section numbers refer
to Parts, Articles and Sections of this Agreement, unless the context otherwise
requires.
Section 3.10 Further Assurances. In connection with this Agreement and
all transactions contemplated by this Agreement, each Party hereto agrees to
execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
Section 3.11 Laws and Regulations. Notwithstanding any provision of
this Agreement to the contrary, no Party hereto shall be required to take any
act, or fail to take any act, under this Agreement if the effect thereof would
be to cause such Party to be in violation of any applicable law, statute, rule
or regulation.
Section 3.12 Negation of Rights of Limited Partners, Assignees, and
Third Parties. The provisions of this Agreement are enforceable solely by the
parties to this Agreement, and no limited partner, assignee or other Person
shall have the right, separate and apart from the MLP or Holdings, to enforce
any provision of this Agreement or to compel any Party to this Agreement to
comply with the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on, and
effective as of, the Closing Date.
ATLAS PIPELINE HOLDINGS, L.P.
By: ATLAS PIPELINE HOLDINGS GP, LLC, its
general partner
By: ____________________________________
Name:
Title:
Address for Notice: 000 Xxxxxx Xxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Telecopy Number: (215-761-0457)
ATLAS PIPELINE HOLDINGS GP, LLC
By: ____________________________________
Name:
Title:
Address for Notice:
000 Xxxxxx Xxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Telecopy Number: (215-761-0457)
A-1
ATLAS PIPELINE PARTNERS, L.P.
By: ATLAS PIPELINE PARTNERS GP, LLC, its
general partner
By: ____________________________________
Name:
Title:
Address for Notice: 000 Xxxxxx Xxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Telecopy Number: (215-761-0457)
A-2
