WHEREAS, concurrently with the execution of this Agreement, Parent has delivered to the
Partnership a duly executed guaranty (the
Limited Guarantee
) of ArcLight Energy Partners Fund V, L.P., a Delaware limited partnership and Affiliate of Parent (the
Guarantor
), in favor of the Partnership, which,
subject to the terms and conditions therein, guarantees the obligations of Parent under
Section
8.2(b)
.
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound, the Parties agree as follows:
ARTICLE I
Defined Terms; Construction
Section 1.1
Definitions
.
(a) As used in this Agreement, the following terms have the meanings ascribed thereto below:
Acquisition Proposal
means any inquiry, proposal or offer from or by any Person other than Parent, Merger Sub or their
respective Affiliates relating to: (a) any direct or indirect acquisition (whether in a single transaction or series of related transactions) of (i) more than 15% of the assets of the Partnership and its Subsidiaries, taken as a whole,
(ii) more than 15% of the outstanding equity securities of the Partnership or (iii) a business or businesses that constitute more than 15% of the cash flow, net revenues or net income of the Partnership and its Subsidiaries, taken as a
whole; (b) any tender offer or exchange offer, as defined under the Exchange Act, that, if consummated, would result in any Person or
group
(as defined in Section 13(d) of the Exchange Act) beneficially owning, directly
or indirectly, more than 15% of the outstanding equity securities of the Partnership; or (c) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Partnership or any of
its Subsidiaries, other than the Merger and the
Pre-Closing
Transactions, which is structured to permit a Person or group (as defined in Section 13(d) of the Exchange Act) to acquire
beneficial ownership, directly or indirectly, of at least 15% of the Partnerships consolidated assets, net income, net reserves or equity securities.
Affiliate
means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is
under common control with, such Person. For this purpose, control (including, with its correlative meanings, controlled by and under common control with) means the possession, directly or indirectly, of the power
to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by Contract or otherwise;
provided
,
however
, that, except where otherwise
expressly provided, for the purposes of this Agreement, (a) the Partnership, the Partnership GP and the Partnerships Subsidiaries shall not be considered Affiliates of HPIP, Parent, Merger Sub or any of their respective direct or indirect
equityholders and (b) HPIP shall be deemed to be an Affiliate of Parent, Merger Sub and their respective Subsidiaries and shall not be considered an Affiliate of the Partnership, the Partnership GP or the Partnerships Subsidiaries.
Agreement
has the meaning set forth in the Preamble.
Alternative Commitment Letter
has the meaning set forth in
Section
6.4(c)
.
Alternative Financing
has the meaning set forth in
Section
6.4(c)
.
Alternative Financing Sources
means each lender, agent, arranger, investor, potential lender, potential agent, potential
arranger, potential investor, underwriter, initial purchaser and placement agent providing, or potentially providing or acting in connection with any Alternative Financing and the parties to any joinder agreements, indentures or credit agreements
entered into pursuant thereto or related thereto, together with their respective Affiliates and their and their respective Affiliates Representatives and their respective successors and assigns, but excluding Parent, Merger Sub, HPIP and the
Equity Financing Sources.
A-6