Preferential Rights and Consents. (a) Within five (5) Business Days after execution of this Agreement, Seller shall send notices to the holders of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement. (b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03). (c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets. (d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations. (e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Carbon Natural Gas Co), Purchase and Sale Agreement (Carbon Natural Gas Co)
Preferential Rights and Consents. (a) Within five From and after the Execution Date, each Contributing Party shall use commercially reasonable efforts to promptly prepare and send (5i) Business Days after execution notices to any third Person holders of this Agreementany consents to assignment of any of the Oil and Gas Properties requesting applicable consents, Seller shall send and (ii) notices to the holders of any applicable preferential rights or consents to assign under joint operating agreements (which consentspurchase any of the Oil and Gas Properties requesting waivers of such preferential rights to purchase, for purposes of in each case that would be triggered by the transactions contemplated by this Agreement, and of which such Contributing Party has knowledge. From and after the Execution Date, each Contributing Party shall further use commercially reasonable efforts to diligently pursue and obtain all Required Consents (provided, however, that no Contributing Party shall be treated as required to make any out of pocket payments to such holders of such Required Consents). Each Contributing Party shall notify the MLP prior to the Closing of all such preferential rights under Section 4.10(b) through (d) below) applicable and consents that have not been waived or granted, as applicable, or that have been exercised in the case of preferential rights to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyerpurchase, and shall not be inconsistent with any of the terms of this Agreementspecific Oil and Gas Properties to which they pertain.
(b) In At the event Closing, any Oil and Gas Properties subject to an unsatisfied Required Consent and any Oil and Gas Properties with respect to which a third party exercises an applicable preferential purchase right to purchase any of the Assets prior to the Closing Date (and does not, has been exercised prior to the Closing, subsequently waive or with respect to which the period for the exercise of such preferential purchase right) or a preferential right has not expired expired, without exercise, shall not be assigned or transferred (whether directly or indirectly) to Intermediate Holdings or Holdings, as applicable.
(c) If a preferential purchase right has been exercised prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from but the holder of such preferential purchase right fails to consummate the purchase of the applicable Oil and Gas Property (or a portion thereof) on or before the first to occur of (i) the date that is 120 days following the Closing or (ii) the end of the period of time for closing such sale or exercising such right). Within ten , then (10x) Business Days after Buyer’s receipt of such notice, Seller the applicable Contributing Parties shall sell, assign and convey to Buyerso notify the MLP, and Buyer (y) the applicable Contributing Parties shall purchase and accept from Sellerassign to Intermediate Holdings or Holdings, as applicable, the affected Assets pursuant to the terms of this Agreement Oil and for the Allocated Value thereof Gas Property (as adjusted pursuant to Section 2.03).
(cor portion thereof) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be so excluded from the Assets delivered at the Closing and pursuant to an instrument in substantially the Purchase Price shall be reduced by same form as the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such AssetsAssignment.
(d) If more than ninety any Required Consent is not obtained by the Closing, the applicable Contributing Parties and the MLP shall, to the extent permitted by applicable Law, (90x) cooperate and use reasonable best efforts to establish an arrangement reasonably satisfactory to the MLP under which Intermediate Holdings or Holdings, as applicable, would obtain the claims, rights and benefits and assume the corresponding liabilities, debts, obligations and commitments under such Oil and Gas Properties (including by means of any subcontracting, sublicensing or subleasing arrangement) or under which the applicable Contributing Parties would enforce for the benefit of Intermediate Holdings or Holdings, as applicable, any and all claims, rights and benefits of the applicable Contributing Parties against a third party thereto and (y) the applicable Contributing Parties, at the reasonable request of the MLP and for the account of Intermediate Holdings or Holdings, as applicable, shall enforce, any of such Contributing Parties’ rights thereto or interests therein against any third parties thereto (including the right to terminate any such Oil and Gas Property in accordance with its terms, provided that the applicable Contributing Parties shall pay any cancellation or other fee due upon such termination). If the Contributing Parties obtain the consent or waiver of such Required Consent within 120 days following the Closing, (i) the applicable Contributing Parties shall so notify the MLP and (ii) the applicable Contributing Parties shall assign to Intermediate Holdings or Holdings, as applicable the Oil and Gas Property (or portion thereof) so excluded, pursuant to an instrument in substantially the same form as the Assignment. If such Required Consent is not obtained by the date that is 120 days after the Closing, a third (A) Intermediate Holdings or Holdings, as applicable shall pay to such Contributing Party any net proceeds received by such party exercises an applicable preferential right from such Contributing Party pursuant to purchase any this Section 6.10(d), that are attributable to such Oil and Gas Property, and (B) the Contributing Party shall pay to the MLP the cash value of the Assets portion of which Seller and Buyer were not aware prior to the expiration of Aggregate Consideration received by such period, then Buyer shall sell, assign and convey the affected Asset Contributing Party that is directly attributable to such third party excluded Oil and Buyer shall be entitled to receive and collect Gas Property (as reasonably determined by the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitationsMLP).
(e) Seller will use reasonable efforts to obtain For the avoidance of doubt, any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents action that may be taken by any Represented Contributor under joint operating agreements described in this Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of 6.10 may be taken by any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value Contributors’ Representatives on behalf of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and SellerRepresented Contributor.
Appears in 2 contracts
Sources: Contribution, Conveyance, Assignment and Assumption Agreement (Kimbell Royalty Partners, LP), Contribution, Conveyance, Assignment and Assumption Agreement (Kimbell Royalty Partners, LP)
Preferential Rights and Consents. (a) Within five (5) Business Days after execution Some of this Agreement, Seller shall send notices the Leases may be subject to the holders of preferential rights to purchase in favor of third parties or third party consents to assign under joint operating agreements (which consents, for purposes assignment and notices of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated herebysale. The form and content of all solicitations for the waivers and consents affecting the Assets Interests, shall be determined by Seller, after consultation with Buyer, and Seller but shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired Interests prior to the Closing Date, the affected Assets Interests shall be removed from this Agreement and the Purchase Price shall be reduced adjusted by the Allocated Value of the Interests. In the event such Assets. For a period of ninety third party fails or refuses to close on such preferential right within sixty (9060) days of the date of such third party's exercise of its preferential right, then Buyer shall purchase such affected Interests covered by the preferential right for its Allocated Value as of the Effective Time and the closing for such transaction shall take place on a mutually acceptable date not more than thirty (30) days following such failure or refusal. If any preferential right to purchase any portion of the Interests is exercised after the Closing Date, Seller maysuch affected portion of the Interests shall not be treated as a Title Defect, from time to time, notify Buyer in writing if the holder and no adjustment shall be made on account of such exercise. All Interests that are subject to preferential rights to purchase that have not been exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder as of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign date and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets time shall be excluded from the Assets delivered conveyed to Buyer at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If any such preferential right is exercised after such date and time, Buyer agrees to convey such affected Interests to the party exercising such right on the Closing Date any same terms and conditions under which Seller conveyed such consents have not been obtainedInterests to Buyer. Buyer shall retain all amounts paid by the party exercising such preferential right to purchase. In the event of such exercise, and the failure to obtain Buyer shall prepare a form of conveyance of such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to interests from Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such casesexercising party, such Hard Consent Asset shall conveyance to be retained by Seller in form and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset substance as provided in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of except that such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, conveyance shall be removed from this Agreement made free and the Parties shall have no further obligations clear of all liens, encumbrances, royalty interests, production payments and other charges or defects created by, through or under Buyer. Buyer agrees to each other with respect hold harmless and indemnify Seller regarding any claims made by third parties claiming preferential rights subsequent to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and SellerClosing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Exco Resources Inc), Purchase and Sale Agreement (Venus Exploration Inc)
Preferential Rights and Consents. Buyer (aor one of its affiliates, as general partner of Seller) Within five will be solely responsible for identifying the names and addresses of parties whose consent is required in order to assign the Properties to Buyer (5“Consent”), or who have preferential purchase rights to purchase an Oil and Gas Property (“Preferential Rights”). Buyer (or one of its affiliates as general partner of Seller) Business Days after will request from the parties so identified (and in accordance with the documents creating such rights), execution of this Agreement, Seller shall send notices to the holders such Consents and/or waivers of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated herebyPreferential Rights. The form From and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, prior to the Closing, subsequently waive Buyer shall indemnify and hold Seller (and its partners and its and their affiliates and the respective officers, directors, employees, attorneys, contractors and agents of such preferential purchase rightparties) harmless from and against all claims, actions, causes of action, liabilities, damages, losses, costs or expenses (including, without limitation, court costs and attorney’s fees) whatsoever that arise out of any failure to obtain Consents or waivers of Preferential Rights with respect to any transfer by Seller to Buyer of any part of the Properties and with respect to any subsequent transfers WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF ANY INDEMNIFIED PARTY. Buyer has allocated an amount of the Base Purchase Price to each Property as shown on Schedule I. If a preferential right has not expired prior party from whom a waiver of a Preferential Right is requested refuses to give such waiver, Seller will tender to such party the required interest in the Property (at a price equal to the Closing Date“Allocated Amount” specified in Schedule I hereto for such Property, reduced appropriately, as determined by mutual agreement of Buyer and Seller, if less than the affected Assets shall entire Property must be removed tendered), and to the extent that such Preferential Right is exercised by such party, and such interest in such Property is actually sold to such party so exercising such right, such interest in such Property will be excluded from this Agreement the transaction contemplated hereby and the Purchase Price shall will be reduced adjusted downward by the Allocated Value actual amount paid to Seller by the party exercising such right. Upon the exercise of such Assets. For a period of ninety (90) days any Preferential Rights after the Closing Date, Seller may, from time with respect to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey any Property conveyed to Buyer, Buyer will tender the required interest in such Property affected by such unwaived Preferential Right in accordance with such Preferential Right and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive collect and collect retain the proceeds of the purchase, either purchase price received from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitationspurchaser.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (EV Energy Partners, LP), Sale and Purchase Agreement (EV Energy Partners, LP)
Preferential Rights and Consents. Seller and Buyer will use reasonable efforts consistent with industry practice in transactions of this type, with respect to all Oil and Gas Properties, to develop a list of the names and addresses of parties holding Preferential Rights and Consents. Seller will request, from the parties so identified (a) Within five (5) Business Days after and in accordance with the documents creating such rights), execution of this AgreementConsents and/or waivers of Preferential Rights. Seller shall have no obligation other than to request such execution of Consents and/or waivers of Preferential Rights (including, without limitation, Seller shall send notices have no obligation to the holders assure that such Consents or waivers of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated herebyPreferential Rights are obtained). The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does notIf, prior to the Closing, subsequently waive such preferential purchase right) Seller fails to obtain requisite Consents and/or waivers of Preferential Rights or the time periods for the giving of a preferential right has Consent or the exercise of a Preferential Right have not expired expired, Buyer may at its sole option prior to Closing (i) waive the Closing Datedefect or (ii) exclude the property affected, or in the case where only a portion of the property is affected, exclude the affected Assets portion, from the Oil and Gas Properties and deduct the Pref Right Value (as defined below) therefore from the Base Purchase Price. If a party from whom a waiver of a Preferential Right is requested refuses to give such waiver prior to Closing, Seller will tender to such party the required interest in the Property (the value of which shall be removed from this Agreement deemed to be equal to the amount specified in Schedule I hereto for such Property, reduced appropriately, as determined by mutual agreement of Buyer and Seller, if less than the Purchase Price shall entire Property must be reduced by tendered) (the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right"Pref Right Value"). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement extent that such Preferential Right is exercised by such party, and for the Allocated Value thereof (as adjusted pursuant such interest in such Property is actually sold to Section 2.03).
(c) Subject to Section 4.10(b)such party so exercising such right, if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall such interest in such Property will be excluded from the Assets delivered at the Closing transaction contemplated hereby and the cash portion of the Base Purchase Price shall will be reduced adjusted downward by the Allocated Value of such AssetsPref Right Value. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with With respect to each any properties that have been excluded from the Oil and Gas Properties prior to Closing because of the excluded Assets for which the applicable preferential purchase rights have expired existence of a Preferential Right that has not been exercised or been waived. If any preferential purchase rights have neither expired nor been waived , if, within ninety (90) days after Closing, such Preferential Right is waived or the Closing Datetime period for the exercise thereof has passed without the Preferential Right being exercised, the affected Assets, automatically and without need then Seller shall convey such property to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller Buyer and Buyer agree shall pay in writing to proceed with a closing on such Assets.
(d) cash the Pref Right Value therefor. If more than ninety (90) days after the Closing, any party holding a third party exercises an applicable preferential right Preferential Right on a Property elects to purchase any exercise same and Buyer has paid for and accepted conveyance of the Assets of which Seller and Buyer were not aware prior to the expiration of such periodProperty, then Buyer shall sell, assign and convey comply with the affected Asset to terms of the applicable Preferential Right. Buyer shall be due any consideration paid by such third party and upon the exercise of such Preferential Right in exchange for Buyer shall be entitled to receive and collect the proceeds delivering such third party an assignment for that portion of the purchaseProperty affected by the exercise of such Preferential Right, either and Seller shall pay to Buyer, the amount, if any, which the Pref Right Value for such Property exceeds the amount received by Buyer from such third party directly or from for such Property. Buyer shall indemnify Seller for any Seller Party that receives and collects such proceeds. This provision shall survive failure to comply with the Closing terms of the Preferential Right as provided in the preceding sentence, up to an amount not to exceed the Pref Right Value for the statute of limitationsaffected Property.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 1 contract
Preferential Rights and Consents. (a) Within five (5) Business Days after execution of this Agreement, Seller shall send notices to the holders of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b4.03(b) through (d) below) applicable to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety sixty (9060) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if If on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety sixty (9060) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety sixty (9060) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety sixty (9060) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitationsindefinitely.
(e) Seller will use reasonable efforts to attempt to obtain any other required consents (other than third party or Governmental Authority governmental consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a4.03(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and (i) the failure to obtain such consent could reasonably be expected would cause (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, or (B) to cause the termination or loss of a contract or an Asset under the express terms thereof thereof, or (Cii) to result in a Material Adverse EffectSeller has been notified that the holder of any such consent right has rejected or will otherwise not grant such consent, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety sixty (9060) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety sixty (9060) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EV Energy Partners, LP)
Preferential Rights and Consents. (a) Within five (5) Business Days after execution of this Agreement, Seller shall send notices to the holders of There are no preferential rights or to purchase affecting the Properties. Schedule 6.1 sets forth all required Third Party consents to assign under joint operating agreements (which consentsthe Properties, except for purposes those consents and approvals of this Agreementassignments that are customarily obtained after the Closing. As of the Closing Date, shall be treated as preferential rights under Section 4.10(b) through (d) below) Seller will have requested waivers of all known consents to assign applicable to the transactions contemplated hereby. The form herein and content will provide to Buyer copies of all solicitations for the requests of such waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior will keep Buyer informed as to the Closing Date (and does not, prior to the Closing, subsequently waive status of each such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assetsrequest. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other obligation with respect to the samesuch consents (including, unless without limitation, Seller and Buyer agree in writing shall have no obligation to proceed with a closing on assure that such Assets.
(dconsents are obtained) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right except that Seller agrees to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use commercially reasonable efforts to obtain any other required consents cooperate with Buyer in obtaining such consents. Buyer shall indemnify and hold Seller (other than third party or Governmental Authority consents customarily obtained post-Closingand its partners and its and their affiliates and the respective members, consents under joint operating agreements described in Section 4.10(aofficers, managers, directors, employees, attorneys, contractors and agents of such parties) or other approvals customarily obtained post-Closing) for the valid assignment harmless from and against all Losses whatsoever that arise out of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment consents or waivers of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement applicable preferential rights with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) any transfer by Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, of any part of the Properties and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the sameany subsequent transfers, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF NEGLIGENCE (other than consents relating to Hard Consent AssetsINCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and SellerOF ANY INDEMNIFIED PARTY.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Tetra Technologies Inc)
Preferential Rights and Consents. (a) Within five (5) Business Days after execution of this Agreement, Seller shall send give all required notices with respect to preferential purchase rights and consents to assignment as soon as reasonably practicable after this Agreement is executed and delivered by the holders Parties. The Parties shall use their commercially reasonable efforts in good faith to obtain waivers of preferential rights or and consents to assign under joint operating agreements (which consents, assignment. If the time period for purposes of this Agreement, shall be treated as any such preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall purchase right has not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, expired at or prior to the Closing, subsequently waive then such affected Properties shall be retained by Seller until such time as the time period for the exercise of such preferential purchase right) right expires or a such preferential purchase right has is waived, upon which Seller shall promptly assign such Properties to Buyer, and Buyer shall pay Seller the Allocated Value of the applicable Properties. For all Oil and Gas Properties affected by consents to assignment that would prohibit Seller from transferring such Oil and Gas Property if not expired obtained, and if the applicable Lease or agreement does not provide that such consent shall not be unreasonably withheld, such Properties shall be retained by Seller if such consents to assignment are not obtained prior to the Closing Date(unless waived by Buyer), the affected Assets shall be removed from this Agreement and the Purchase Price for the Properties shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of Properties. If such preferential right). Within ten (10) Business Days consents to assignment are obtained after Buyer’s receipt of such noticeClosing, then Seller shall sell, promptly assign and convey such Properties to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by pay Seller the Allocated Value of the applicable Properties. Notwithstanding the foregoing, if the consent to assignment relating to that certain Easement for Oil Storage Facility dated August 15, 1998, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and Abraxas Petroleum Corporation (the “Storage Easement”) has not been obtained by Closing, Seller shall retain the Storage Easement and there shall be no adjustment to the Purchase Price. Seller shall hold the Storage Easement for the benefit of Buyer until such Assetsconsent to assignment is obtained. The Parties shall conduct a subsequent closing ninety (90) days after use their commercially reasonable efforts in good faith to obtain the Closing Date (the “Second Closing”) with respect consent to each assignment of the excluded Assets for which Storage Easement. After the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need consent to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any assignment of the Assets of which Storage Easement has been obtained, Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset Storage Easement to such third party Buyer, Seller shall cause any encumbrances, deeds of trust or mortgages affecting the Storage Easement to be released and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred obligated to Buyer at Closing. In pay anything to Seller for such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Sellertransfer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Abraxas Petroleum Corp)
Preferential Rights and Consents. (ai) Within five All preferential rights to purchase that are known to Seller after reasonable inquiry and required consents to assignment that are known to Seller after reasonable inquiry, in each case that relate to any Oil and Gas Properties and that would be applicable to the transactions contemplated hereby, together with the names and addresses of parties holding such rights, are set forth at Schedule 5(c). Such preferential rights known to Seller after reasonable inquiry, together with any preferential rights that become known to Seller or Buyer prior to Closing that relate to any Oil and Gas Properties and that would be applicable to the transactions contemplated hereby are collectively referred to herein as the “Preferential Rights”. Such required consents known to Seller after reasonable inquiry, together with any required consents that become known to Seller or to Buyer (5provided that, if any become so known to Buyer, Buyer informs Seller) Business Days prior to Closing that relate to any Oil and Gas Properties and that would be applicable to the transactions contemplated hereby are collectively referred to herein as the “Consents”. Promptly after execution of this Agreement, Seller shall send notices request from the parties identified on said Schedule (and in accordance with the documents creating such rights), execution of Consents and/or waivers of Preferential Rights so identified. Seller shall use reasonable efforts to obtain before Closing all Consents. Buyer shall reasonably cooperate with Seller in obtaining any required Consent, including providing assurances of reasonable financial conditions, but neither Party shall be required to expend funds or make any other type of financial commitments as a condition of obtaining such Consent.
(ii) If a party from whom a waiver of a Preferential Right is requested refuses to give such waiver, Seller will tender to such party the required interest in the Property, and to the holders extent that such Preferential Right is exercised by such party, and such interest in such Property is actually sold to such party so exercising such right, the Allocated Amount of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall each respective Property will be treated as preferential rights under Section 4.10(b) through (d) below) applicable to excluded from the transactions contemplated hereby, and the Purchase Price will be adjusted downward by the Allocated Amount of each respective Property. The form and content of all solicitations Except as expressly waived by Buyer, if by Closing, (1) the time frame for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, exercise of a Preferential Right has not expired and shall Seller has not be inconsistent with any received notice of an intent not to exercise or a waiver of the terms of this Agreement.
Preferential Right, (b2) In the event a third party exercises an applicable preferential right its Preferential Right to purchase, but fails to consummate the purchase any of the Assets prior to the Closing Date or (and does not3) Seller is unable to obtain any Consent, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, then Seller shall retain the affected Assets shall be removed from this Agreement Property and the Purchase Price shall be reduced adjusted downward by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value Amount of the affected Properties; provided, however, that in the case where Seller is unable to obtain any required Consent in accordance with Section 5(c)(i) above, Buyer may waive the requirement that Seller retain the affected Property and such Hard Consent Asset Property shall be conveyed at Closing, without any adjustment to Sellerthe Purchase Price relating to such Property. If such consent requirement For a period of six (6) months after Closing as to any Assets retained by Seller hereunder, following Closing if (a) a Preferential Right to purchase is not satisfied consummated within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included time frame specified in the Purchase PricePreferential Right, but (b) the time frame for exercise of the Preferential Right expired without exercise after the Closing or (c) Seller receives a Consent, Seller shall continue its efforts promptly convey the affected Property to obtain such consents on a case by case basis as agreed upon by Buyer and SellerBuyer shall pay to Seller an amount equal to the Allocated Amount of the conveyed Properties.
Appears in 1 contract
Preferential Rights and Consents. Sellers do not believe that the Oil and Gas Properties are, but if, certain of the Oil and Gas Properties are or may be subject to (a) Within five (5) Business Days after execution preferential purchase rights, rights of this Agreement, Seller shall send notices first refusal and similar option rights in third parties to the holders purchase all or part of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any certain of the terms of this Agreement.
Oil and Gas Properties (collectively, "Preferential Rights"), or (b) In the event a third party exercises an applicable preferential right lessors' approvals or other consents to purchase transfer any part of the Assets prior Oil and Gas Properties (other than governmental approvals routinely acquired after a transfer) including the non-transferability requirement of any license, permits, right-of-way, pipeline franchise or easement, or a requirement of renegotiation upon transfer of ownership (collectively, "Consents"), Sellers shall request, from each party shown on Sellers' records as holding Preferential Rights or as required to give Consents, and in accordance with the documents creating such rights, waivers of the Preferential Rights and Consents. If a party from whom a waiver of a Preferential Right is requested refuses to give such waiver, Sellers shall tender (at a price determined by the documents creating the Preferential Rights) the Oil and Gas Properties affected by such unwaived Preferential Right and if, and to the Closing Date (extent that, such Preferential Right is exercised by the holder thereof, and does notsuch interest in the Oil and Gas Property is actually sold pursuant to such right, prior to such interest in the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the affected Assets Oil and Gas Properties shall be removed excluded from this Agreement the sale and purchase of Assets contemplated hereby and the Purchase Price shall be reduced by the Allocated Value amount allocated to such Oil and Gas Property as set forth in Schedule 2.3 hereto, or if not so set forth, by the amount so determined by mutual agreement of such Assetsthe parties hereto. For All Oil and Gas Properties for which a period of ninety (90) days after Preferential Right has not been asserted prior to the Closing Date, Seller may, from time to time, notify Buyer in writing if by the holder of such exercised preferential right has withdrawn shall be sold to Purchaser at the Closing pursuant to the provisions of this Agreement. Except that the Purchaser at its exercise thereof option shall exclude such Preferential Right properties if no written consent is given and reduce the Purchase Price dollar-for-dollar by the amount set forth on Schedule 2.3 hereto, or has failed to close or if not so set forth, by the applicable preferential right has expired (without challenge or comment from amount so determined by mutual agreement of the parties hereto. If any holder of Preferential Rights notifies Sellers subsequent to the Closing that it intends to assert its Preferential Rights, Sellers shall give notice thereof t Purchaser, whereupon Purchaser shall satisfy such preferential rightPreferential Rights and all other obligations of Sellers to such holder. Sellers shall have no obligation hereunder other than to request waivers of Preferential Rights and to request Consents (including, without limitation, Sellers shall have no obligation to assure that such waivers of Preferential Rights or Consents are obtained). Within If the Sellers sell any of their interest in the Assets, subject to any Preferential Rights and Consents Sellers shall provide Purchaser, in writing the name of the purchaser of such Assets and the purchase price thereof within ten (10) Business Days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any days of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect third parties notice to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such AssetsSellers.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 1 contract
Preferential Rights and Consents. (a) Within five From and after the Execution Date, each Contributing Party shall use commercially reasonable efforts to promptly prepare and send (5i) Business Days after execution notices to any third Person holders of this Agreementany consents to assignment of any of the Contributed Interests requesting applicable consents, Seller shall send and (ii) notices to the holders of preferential rights or consents to assign under joint operating agreements (which consentsany applicable Preferential Purchase Rights requesting waivers of such Preferential Purchase Rights, for purposes of this Agreement, shall in each case that would be treated as preferential rights under Section 4.10(b) through (d) below) applicable to triggered by the transactions contemplated herebyby this Agreement. The form From and content after the Execution Date, each Contributing Party shall further use commercially reasonable efforts to diligently pursue and obtain all Required Consents (provided, however, that no Contributing Party shall be required to make any out of pocket payments to such holders of such Required Consents). Each Contributing Party shall notify the Company prior to the Closing of all solicitations for such Preferential Purchase Rights and consents that have not been waived or granted, as applicable, or that have been exercised in the waivers affecting the Assets shall be determined by Seller, after consultation with Buyercase of Preferential Purchase Rights, and shall not be inconsistent with any of the terms of this Agreementspecific Contributed Interests to which they pertain.
(b) In At the event Closing, any Contributed Interests subject to an unsatisfied Required Consent and any Contributed Interests with respect to which a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, Preferential Purchase Rights has been exercised prior to the Closing, subsequently waive or with respect to which the period for the exercise of such preferential purchase right) or a preferential right has not expired expired, without exercise, shall not be assigned or transferred (whether directly or indirectly) to Remora Holdings.
(c) If a Preferential Purchase Rights has been exercised prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from but the holder of such preferential purchase right fails to consummate the purchase of the applicable Contributed Interest (or a portion thereof) on or before the first to occur of (i) the date that is 120 days following the Closing or (ii) the end of the period of time for consummating such sale or exercising such right). Within ten , then (10x) Business Days after Buyer’s receipt of the Applicable Contributing Party shall so notify the Company, and (y) the Applicable Contributing Party shall assign to Remora Holdings, as applicable, the Contributed Interest (or portion thereof) so excluded at the Closing pursuant to an instrument in substantially the same form as the applicable Conveyance Document to which such notice, Seller shall sell, Contributing Party is required to assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof such Contributed Interest (as adjusted pursuant to Section 2.03).
(cor portion thereof) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend under this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety any Required Consent is not obtained by the Closing, each Applicable Contributing Party and the Company shall, to the extent permitted by applicable Law, (90x) cooperate and use reasonable best efforts to establish an arrangement reasonably satisfactory to the Company under which Remora Holdings would obtain the claims, rights and benefits and assume the corresponding liabilities, debts, obligations and commitments under such Contributed Interests (including by means of any subcontracting, sublicensing or subleasing arrangement) or under which each Applicable Contributing Party would enforce for the benefit of Remora Holdings any and all claims, rights and benefits of such Applicable Contributing Party against a third party thereto and (y) each Applicable Contributing Party, at the reasonable request of the Company (and at the Company and Remora Holdings’ sole cost and expense) and for the account of Remora Holdings shall enforce, any of such Contributing Parties’ rights thereto or interests therein against any third parties thereto (including the right to terminate any such Contributed Interest in accordance with its terms). If within 120 days following the Closing the Applicable Contributing Party obtains the consent or waiver of any Required Consent binding on a Contributed Interest which is withheld from Closing pursuant to Section 6.8(b), then (i) the Applicable Contributing Party shall so notify the Company and (ii) the Applicable Contributing Party shall assign to Remora Holdings the Contributed Interest (or portion thereof) so excluded, pursuant to an instrument in substantially the same form as the applicable Conveyance Document to which such Contributing Party is required to assign and convey such Contributed Interest (or portion thereof) under this Agreement. If any Required Consent binding on a Contributed Interest which is withheld from Closing pursuant to Section 6.8(b) is not obtained by the date that is 120 days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) Remora Holdings shall pay to cause the assignment of the Assets affected thereby such Contributing Party any proceeds received by Remora Holdings from such Contributing Party pursuant to Buyer this Section 6.8(d), that are attributable to be void or voidablesuch Contributed Interest, and (B) the Applicable Contributing Party shall pay to cause the termination Company the cash value of the portion of the Aggregate Consideration received by such Contributing Party that is equal to Excluded Contributed Interest Value directly attributable to such excluded Contributed Interest. For purposes of this Section 6.8(d), the “Excluded Contributed Interest Value” with respect to such an excluded Contributed Interest shall be calculated as the sum of the result of the following calculation which shall be made with respect to each Well or loss ▇▇▇▇▇ for which the Net Revenue Interest is decreased due to the exclusion of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such casesContributed Interest, such Hard Consent Asset shall be retained by Seller and calculation being the Purchase Price shall be reduced by product of (a) the Allocated Value of the applicable Well or ▇▇▇▇▇ multiplied by (b) a fraction, the numerator of which is the decrease in the Applicable Contributing Party’s (and Remora Holdings’, as successor in interest to Seller) Net Revenue Interest in such Hard Consent Asset. If an unsatisfied consent requirement Well or ▇▇▇▇▇ and the denominator of which is the Net Revenue Interest stated on the Applicable Schedule with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and SellerWell or ▇▇▇▇▇.
Appears in 1 contract
Sources: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Preferential Rights and Consents. (a) All Consents and Preferential Rights are set forth on Schedule 3.2.7. Within five (5) Business Days after execution of this Agreementbusiness days from the Execution Date, Seller shall send deliver notices to the holders of preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby. The form and content of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyerthereof, and shall not be inconsistent with promptly provide copies of any response to such notices to Buyer.
4.3.1 If Seller fails to obtain a Consent prior to Closing and the failure to obtain such Consent would cause (i) the assignment of that portion of the terms Property affected thereby to Buyer to be void, (ii) any revenue attributable to the Property to be held in suspense or otherwise reduced; or (iii) the termination of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any that portion of the Assets prior to Property affected thereby under the Closing Date express terms thereof (and does noteach, prior to a “Hard Consent”), then, in each such case, that portion of the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the Property affected Assets thereby shall be removed excluded from this Agreement the Property to be acquired by Buyer at Closing hereunder and the Purchase Price shall be reduced by the Allocated Value of such Assetsportion of the Property so excluded. For In the event that a period of ninety Hard Consent that was not obtained prior to Closing is obtained within sixty (9060) days after the Closing Datefollowing Closing, Seller maythen, from time to timeBuyer shall purchase, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within within ten (10) Business Days days after Buyer’s receipt such Hard Consent is obtained, such portion of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to Property so excluded under the terms of this Agreement and for the Allocated Value thereof amount (as adjusted pursuant to Section 2.03).
(cif any) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and by which the Purchase Price shall be was reduced by at Closing due to the Allocated Value exclusion of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each portion of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety Property (90) days after the Closing Date, the affected Assets, automatically and without need to amend as such amount is appropriately adjusted in accordance with this Agreement), and Seller shall be removed from this Agreement and assign to Buyer such portion of the Parties shall have no further obligations Property pursuant to each other with respect an instrument in form substantially similar to the same, unless Seller and Buyer agree in writing to proceed with a closing on such AssetsAssignment Documents.
(d) 4.3.2 If more than ninety (90) days after the Closing, Seller fails to obtain a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware Consent prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected Consent would not cause (Ai) to cause the assignment of that portion of the Assets Property affected thereby to Buyer to be void void; (ii) any revenue attributable to the Property to be held in suspense or voidable, otherwise reduced; or (Biii) to cause the termination or loss of a contract or an Asset such portion of the Property affected thereby under the express terms thereof or (C) to result in a Material Adverse Effectthereof, then (x) that portion of the Property subject to such un-obtained Consent shall be acquired by Buyer at Closing as part of the Property, (y) Buyer shall have no claim against, and hereby releases and indemnifies the right Seller Indemnified Parties from any liability for the failure to elect that any obtain such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with this AgreementConsent, and (z) Buyer shall pay an amount equal be solely responsible from and after Closing for any and all liabilities arising from the failure to obtain such Consent.
4.3.3 To the extent that any preferential right is exercised by a third party, such interests in the Property affected thereby will be excluded from the transaction contemplated hereby and the Purchase Price will be adjusted downward by the Allocated Value of that portion of the Property affected by such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Sellerright.
Appears in 1 contract
Preferential Rights and Consents. (a) Within five From and after the Execution Date, each Contributing Party shall use commercially reasonable efforts to promptly prepare and send (5i) Business Days after execution notices to any third Person holders of this Agreementany consents to assignment of any of the Contributed Interests requesting applicable consents, Seller shall send and (ii) notices to the holders of preferential rights or consents to assign under joint operating agreements (which consentsany applicable Preferential Purchase Rights requesting waivers of such Preferential Purchase Rights, for purposes of this Agreement, shall in each case that would be treated as preferential rights under Section 4.10(b) through (d) below) applicable to triggered by the transactions contemplated herebyby this Agreement. The form From and content after the Execution Date, each Contributing Party shall further use commercially reasonable efforts to diligently pursue and obtain all Required Consents (provided, however, that no Contributing Party shall be required to make any out of pocket payments to such holders of such Required Consents). Each Contributing Party shall notify the Company prior to the Closing of all solicitations for such Preferential Purchase Rights and consents that have not been waived or granted, as applicable, or that have been exercised in the waivers affecting the Assets shall be determined by Seller, after consultation with Buyercase of Preferential Purchase Rights, and shall not be inconsistent with any of the terms of this Agreementspecific Contributed Interests to which they pertain.
(b) In At the event Closing, any Contributed Interests subject to an unsatisfied Required Consent and any Contributed Interests with respect to which a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, Preferential Purchase Rights has been exercised prior to the Closing, subsequently waive or with respect to which the period for the exercise of such preferential purchase right) or a preferential right has not expired expired, without exercise, shall not be assigned or transferred (whether directly or indirectly) to Remora Holdings.
(c) If a Preferential Purchase Rights has been exercised prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from but the holder of such preferential purchase right fails to consummate the purchase of the applicable Contributed Interest (or a portion thereof) on or before the first to occur of (i) the date that is 120 days following the Closing or (ii) the end of the period of time for consummating such sale or exercising such right). Within ten , then (10x) Business Days after Buyer’s receipt of the Applicable Contributing Party shall so notify the Company, and (y) the Applicable Contributing Party shall assign to Remora Holdings, as applicable, the Contributed Interest (or portion thereof) so excluded at the Closing pursuant to an instrument in substantially the same form as the applicable Conveyance Document to which such notice, Seller shall sell, Contributing Party is required to assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof such Contributed Interest (as adjusted pursuant to Section 2.03).
(cor portion thereof) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend under this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after any Required Consent is not obtained by the Closing, each Applicable Contributing Party and the Company shall, to the extent permitted by applicable Law, (x) cooperate and use reasonable best efforts to establish an arrangement reasonably satisfactory to the Company under which Remora Holdings would obtain the claims, rights and benefits and assume the corresponding liabilities, debts, obligations and commitments under such Contributed Interests (including by means of any subcontracting, sublicensing or subleasing arrangement) or under which each Applicable Contributing Party would enforce for the benefit of Remora Holdings any and all claims, rights and benefits of such Applicable Contributing Party against a third party exercises an applicable preferential right to purchase thereto and (y) each Applicable Contributing Party, at the reasonable request of the Company (and at the Company and Remora Holdings’ sole cost and expense) and for the account of Remora Holdings shall enforce, any of the Assets of which Seller and Buyer were not aware prior to the expiration of such period, then Buyer shall sell, assign and convey the affected Asset to such Contributing Parties’ rights thereto or interests therein against any third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
parties thereto (e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have including the right to elect that terminate any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer Contributed Interest in accordance with this Agreementits terms). If within 120 days following the Closing the Applicable Contributing Party obtains the consent or waiver of any Required Consent binding on a Contributed Interest which is withheld from Closing pursuant to Section 6.8(b), then (i) the Applicable Contributing Party shall so notify the Company and (zii) Buyer the Applicable Contributing Party shall pay an amount equal assign to Remora Holdings the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety Contributed Interest (90or portion thereof) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.so excluded,
Appears in 1 contract
Sources: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Preferential Rights and Consents. Seller will assist Buyer in identifying, with respect to all material, (ai) Within five (5) Business Days after execution of this Agreement, Seller shall send notices to the holders of all preferential rights or to purchase ("PREFERENTIAL RIGHTS") and requirements that consents to assign under joint operating agreements assignment ("CONSENTS") be obtained which consents, for purposes of this Agreement, shall would be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby. The form hereby and content (ii) the names and addresses of all solicitations for the waivers affecting the Assets shall be determined by Seller, after consultation with Buyerparties holding such rights; in attempting to assist in identifying such Preferential Rights and Consents, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (names and does not, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date, the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value addresses of such Assets. For a period of ninety (90) days after parties holding the Closing Date, Seller may, from time to time, notify Buyer in writing if the holder of such exercised preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential right). Within ten (10) Business Days after Buyer’s receipt of such noticesame, Seller shall sell, assign in no event be obligated to go beyond its own records. Seller is presently aware that the Oil and convey Gas Properties are subject to the Preferential Rights and Consents under the Agreements listed on Exhibit A-3. As identified and requested by Buyer, and Buyer shall purchase and accept from SellerSeller will assist in preparing request, in accordance with the affected Assets pursuant to the terms of this Agreement and documents creating such rights, for the Allocated Value thereof (as adjusted pursuant to Section 2.03).
(c) Subject to Section 4.10(b), if on the Closing Date preferential purchase rights applicable to any execution of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value Consents and/or waivers of such AssetsPreferential Rights. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties Seller shall have no further obligations obligation other than to each other with respect so attempt to assist in identifying such Preferential Rights or Consents and to assist in requesting such execution of Consents and/or waivers of Preferential Rights (including, without limitation, Seller shall have no obligation to assure that such Consents or waivers of Preferential Rights are obtained). Buyer shall indemnify and hold Seller (and its Members and its and their affiliates and the samerespective officers, unless Seller directors, employees, attorneys, contractors and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior to the expiration agents of such periodparties) harmless from and against all claims, then Buyer shall sellactions, assign causes of action, liabilities, damages, losses, costs or expenses (including, without limitation, court costs and convey the affected Asset to such third party and Buyer shall be entitled to receive and collect the proceeds attorney's fees) whatsoever that arise out of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) for the valid assignment of any Asset with an Allocated Value of greater than zero prior to the Closing. If on the Closing Date any such consents have not been obtained, and the failure to obtain such consent could reasonably be expected (A) to cause the assignment Consents or waivers of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Asset. If an unsatisfied consent requirement Preferential Rights with respect to a Hard Consent Asset for which an adjustment is made to the Purchase Price is subsequently satisfied prior to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) any transfer by Seller shall convey such Hard Consent Asset to Buyer in accordance with this Agreement, of any part of the Properties and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the sameany subsequent transfers WHETHER OR NOT SUCH CLAIMS, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent AssetsACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE) OF ANY INDEMNIFIED PARTY. If on a party from whom a waiver of a Preferential Right is requested refuses to give such waiver, Seller will tender to such party the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included required interest in the Purchase PriceProperty, but after and to the Closing Seller shall continue its efforts to obtain extent that such consents on a case Preferential Right is exercised by case basis as agreed upon by Buyer such party, and Seller.such interest
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Power Exploration Inc)
Preferential Rights and Consents. (a) Within five (5) Business Days As soon as practicable after execution of this Agreement, Seller shall send (i) notices to the holders of the preferential rights or consents to assign under joint operating agreements (which consents, for purposes of this Agreement, shall be treated as preferential rights under Section 4.10(b) through (d) below) applicable to the transactions contemplated hereby, and (ii) with respect to consents to assignment applicable to the transactions contemplated hereby, requests to third parties for their consent to assignment of the affected Assets to Buyer. The form and content of all solicitations for the waivers and consents affecting the Assets shall be determined by Seller, after consultation with Buyer, and shall not be inconsistent with any of the terms of this Agreement.
(b) In the event a third party exercises an applicable preferential right to purchase any of the Assets prior to the Closing Date (and does not, prior to the Closing, subsequently waive such preferential purchase right) or a preferential right has not expired prior to the Closing Date), the affected Assets shall be removed from this Agreement and the Purchase Price shall be reduced by the Allocated Value of such Assets. For a period of ninety (90) days after the Closing Date, Seller may, from time to time, notify Buyer in writing if any exercised preferential purchase right is not consummated with the holder of such exercised the preferential right has withdrawn its exercise thereof or has failed to close or the applicable preferential right has expired (without challenge or comment from the holder of such preferential purchase right). Within ten (10) Business Days after Buyer’s 's receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, the affected Assets pursuant to the terms of this Agreement and for the Allocated Value thereof (as adjusted pursuant to Section 2.032.2).
(c) Subject to Section 4.10(b), if If on the Closing Date preferential purchase rights applicable to any of the Assets have not expired or been waived, the affected Assets shall be excluded from the Assets delivered at the Closing and the Purchase Price shall be reduced by the Allocated Value of such Assets. The Parties shall conduct a subsequent closing ninety (90) days after the Closing Date (the “Second Closing”) with respect to each of the excluded Assets for which if and when the applicable preferential purchase rights have expired or been waived. If any preferential purchase rights have neither expired nor been waived within ninety (90) days after the Closing Date, the affected Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Assets.
(d) If more than ninety (90) days after the Closing, a third party exercises an applicable preferential right to purchase any of the Assets of which Seller and Buyer were not aware prior required consents to the expiration assignment of such period, then Buyer shall sell, assign and convey the affected any Asset to such third party and Buyer shall be entitled to receive and collect the proceeds of the purchase, either from such third party directly or from any Seller Party that receives and collects such proceeds. This provision shall survive the Closing for the statute of limitations.
(e) Seller will use reasonable efforts to obtain any other required consents (other than third party governmental consents or Governmental Authority consents customarily obtained post-Closing, consents under joint operating agreements described in Section 4.10(a) or other approvals customarily obtained post-Closing) are neither obtained prior to Closing nor waived by Buyer, then with respect to each affected Asset, Seller shall have the option to either (x) include such Asset in the Assets purchased by Buyer at Closing and agree to hold record title and/or operating rights to such Asset as nominee for the valid assignment of any Asset with an Buyer until such time as all applicable required consents have been obtained or waived by Buyer (in which case Buyer shall deliver the Allocated Value of greater than zero prior such Asset (as adjusted pursuant to Section 2.2) to Seller at Closing as a portion of the Closing. If on the Closing Date any Preliminary Purchase Price) or (y) exclude such consents have not been obtained, Asset from this Agreement and the failure to obtain such consent could reasonably be expected transactions contemplated hereby (A) to cause the assignment of the Assets affected thereby to Buyer to be void or voidable, (B) to cause the termination or loss of a contract or an Asset under the express terms thereof or (C) to result in a Material Adverse Effect, then Buyer shall have the right to elect that any such affected Asset (a “Hard Consent Asset”) not be transferred to Buyer at Closing. In such cases, such Hard Consent Asset shall be retained by Seller and which case the Purchase Price shall be reduced by the Allocated Value of such Hard Consent Assetthereof). If an unsatisfied consent requirement with With respect to a Hard Consent each Asset for which an adjustment Seller has agreed to hold record title and/or operating rights as nominee for Buyer (each “Nominee Asset”), Buyer shall be responsible for, and entitled to, all obligations, liabilities, and benefits relating to such Nominee Asset during the period in which Seller is made holding record title and/or operating rights as Buyer's nominee (the “Nominee Period”), and BUYER SHALL DEFEND, INDEMNIFY, AND HOLD SELLER HARMLESS FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION AND LAWSUITS ASSERTED BY ANY PERSON, ENTITY OR GOVERNMENTAL AGENCY ARISING OUT OF THE OPERATION OF EACH NOMINEE ASSET DURING ITS RESPECTIVE NOMINEE PERIOD, REGARDLESS OF THE NEGLIGENCE OR STRICT LIABILITY OF SELLER. Upon all required consents to the Purchase Price is subsequently satisfied prior assignment of any Nominee Asset being obtained or waived by Buyer, Seller shall assign and convey to Buyer such Nominee Asset pursuant to the date that is ninety (90) days after the Closing, the Parties shall include such Hard Consent Asset in the Second Closing at which (y) Seller shall convey such Hard Consent Asset to Buyer in accordance with terms of this Agreement, and (z) Buyer shall pay an amount equal to the Allocated Value of such Hard Consent Asset to Seller. If such consent requirement is not satisfied within ninety (90) days after the Closing, the affected Hard Consent Assets, automatically and without need to amend this Agreement, shall be removed from this Agreement and the Parties shall have no further obligations to each other with respect to the same, unless Seller and Buyer agree in writing to proceed with a closing on such Hard Consent Assets. If on the Closing Date any other consents (other than consents relating to Hard Consent Assets) have not been obtained the affected Assets nevertheless shall be delivered at the Closing and the Allocated Value therefor shall be included in the Purchase Price, but after the Closing Seller shall continue its efforts to obtain such consents on a case by case basis as agreed upon by Buyer and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EV Energy Partners, LP)