ROFR Procedures. (a) Asset Sale Procedures. The following sets forth the procedure for Noble to undertake to honor the right of first refusal with respect to the ROFR Assets. The actions described herein shall be taken by Noble or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.2(a). (i) If Noble proposes to Transfer one or more ROFR Assets to any third-party (other than a Partnership Group Member), then Noble shall promptly give written notice (a “Disposition Notice”) thereof to the Partnership. The Disposition Notice shall set forth the following information in respect of the proposed Transfer: (1) the name and address of any prospective acquirors (collectively, the “Proposed Transferee”), (2) the assets subject to the Disposition Notice (the “Sale Assets”), (3) the purchase price offered by such Proposed Transferee or, if no Proposed Transferee has been identified, a commercially reasonable price in the opinion of Noble (either price described in this clause (3), the “Offer Price”), (4) reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow the Partnership to reasonably determine the fair market value of such non-cash consideration and a statement of the estimate of the fair market value of any non-cash consideration in the opinion of Noble (such term in this Section 4.2 to refer, collectively, to both Noble and the Noble Energy Group Member Transferring the applicable ROFR Asset), and (5) all other material terms and conditions of the disposition that are then known to Noble and its Affiliates. To the extent a Proposed Transferee’s offer consists of consideration other than cash (or in addition to cash) the Offer Price shall be deemed equal to the amount of any such cash plus the fair market value of such non-cash consideration. (ii) The Partnership will provide written notice of either (1) its intent to dispute the Offer Price, as provided in Section 4.2(a)(iii) below or (2) its decision regarding the exercise or non-exercise of its right of first refusal to purchase the Sale Assets within 60 days of its receipt of the Disposition Notice (the “First ROFR Asset Acceptance Deadline”). Failure to provide such notice on or prior to the First ROFR Asset Acceptance Deadline shall be deemed to constitute an affirmative decision not to purchase the Sale Assets. (iii) In the event (1) the Offer Price is based upon an offer from a third-party and such Offer Price contains non-cash consideration and the Partnership’s determination of the fair market value of such non-cash consideration described in the Disposition Notice (to be determined by the Partnership on or prior to the First ROFR Asset Acceptance Deadline) is less than the fair market value of such consideration as determined by Noble in the Disposition Notice and (2) the Partnership and Noble are unable to mutually agree upon the fair market value of such non-cash consideration on or prior to the First ROFR Asset Acceptance Deadline, Noble and the Partnership shall engage a mutually agreed upon valuation firm to determine the fair market value of the non-cash consideration. Such valuation firm shall be instructed to notify the Partnership and Noble of its decision within 30 days after all material information is submitted thereto, which decision shall be final and binding. The fees of the valuation firm will be split equally between Noble and the Partnership. The Partnership will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets to Noble within 15 days after the valuation firm has submitted its determination (the “Second ROFR Asset Acceptance Deadline”). Failure to provide such notice on or prior to the Second ROFR Asset Acceptance Deadline shall be deemed to constitute an affirmative decision by the Partnership not to purchase the Sale Assets. (iv) If the Partnership fails to exercise a right during any applicable period set forth in this Section 4.2(a), the Partnership shall be deemed to have waived its right with respect to such proposed disposition of the Sale Assets, but such waiver shall not extend to any ROFR Assets that were not Sale Assets.
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Sources: Omnibus Agreement
ROFR Procedures. (a) If an Oasis Successor Entity proposes to Transfer any Subject Asset Sale Procedures(other than to an Affiliate in accordance with Section 4.1(a)) in connection with or following an Oasis Change of Control pursuant to a bona fide third-party offer (a “Proposed ROFR Transaction”), then Oasis Successor shall or shall cause such Oasis Successor Entity to, prior to entering into any such Proposed ROFR Transaction, first give notice in writing to the Partnership Group and to the GP Conflicts Committee (a “ROFR Notice”) of its intention to enter into such Proposed ROFR Transaction. The following sets forth Partnership Group shall delegate to the procedure GP Conflicts Committee full authority to review negotiate and approve any transaction subject to this Section 4.3. The ROFR Notice shall include any material terms, conditions and details as would be necessary for Noble the GP Conflicts Committee to undertake determine whether to honor exercise the right of first refusal on behalf of the Partnership Group with respect to the Proposed ROFR Assets. The actions described herein Transaction, which terms, conditions and details shall be taken by Noble or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.2(a).
at a minimum include: (i) If Noble proposes to Transfer one or more ROFR Assets to any third-party (other than a Partnership Group Member), then Noble shall promptly give written notice (a “Disposition Notice”) thereof to the Partnership. The Disposition Notice shall set forth the following information in respect of the proposed Transfer: (1) the name and address of any the prospective acquirors acquiror (collectively, the “Proposed Transferee”), (2ii) the assets Subject Assets subject to the Disposition Notice (Proposed ROFR Transaction ( as used in this Section 4.3, the “Sale Assets”), (3iii) the purchase price offered by such Proposed Transferee or, if no Proposed Transferee has been identified, a commercially reasonable price in the opinion of Noble (either price described in this clause (3), the “Offer Price”), (4iv) reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow the Partnership GP Conflicts Committee to reasonably determine the fair market value of such non-cash consideration and a statement of consideration, (v) the Oasis Successor’s estimate of the fair market value of any non-cash consideration in the opinion of Noble (such term in this Section 4.2 to refer, collectively, to both Noble and the Noble Energy Group Member Transferring the applicable ROFR Asset), and (5vi) all other material terms and conditions of the disposition Proposed ROFR Transaction that are then known to Noble and its Affiliatesany Oasis Successor Entity. To the extent a the Proposed Transferee’s offer consists of consideration other than cash (or in addition to cash) ), the Offer Price shall be deemed equal to the amount of any such cash plus the fair market value of such non-cash consideration.
(ii) The Partnership . In the event the GP Conflicts Committee and the applicable Oasis Successor Entity are able to agree on the fair market value of any non-cash consideration or if the consideration consists solely of cash, the GP Conflicts Committee will provide written notice of either (1) its intent to dispute the Offer Price, as provided in Section 4.2(a)(iii) below or (2) its decision regarding the exercise or non-exercise of its the right of first refusal to purchase the Sale Assets on behalf of the Partnership Group (the “ROFR Response”) to the applicable Oasis Successor Entity within 60 30 days of its receipt of the Disposition ROFR Notice (the “First ROFR Asset Acceptance Deadline”). Failure In the event the GP Conflicts Committee and the applicable Oasis Successor Entity are unable to provide such notice agree on or the fair market value of any non-cash consideration prior to the First ROFR Asset Acceptance Deadline Deadline, the GP Conflicts Committee shall be deemed indicate its desire to constitute an affirmative decision not to purchase the Sale Assets.
(iii) In the event (1) the Offer Price is based upon an offer from a third-party and such Offer Price contains non-cash consideration and the Partnership’s determination of determine the fair market value of such non-cash consideration described pursuant to the procedures outlined in the Disposition Notice (to be determined by the Partnership on or remainder of this Section 4.3(b) in a ROFR Response delivered prior to the First ROFR Asset Acceptance Deadline. If no ROFR Response is delivered by the GP Conflicts Committee prior to the First ROFR Acceptance Deadline, then the GP Conflicts Committee shall be deemed to have waived the right of first refusal on behalf of the Partnership Group with respect to such Sale Asset. In the event (i) the GP Conflicts Committee’s determination of the fair market value of any non-cash consideration described in the ROFR Notice is less than the fair market value of such consideration as determined by Noble the applicable Oasis Successor Entity in the Disposition ROFR Notice and (2ii) the Partnership GP Conflicts Committee and Noble the applicable Oasis Successor Entity are unable to mutually agree upon the fair market value of such non-cash consideration on or prior to within 30 days after the First GP Conflicts Committee notifies the applicable Oasis Successor Entity of its determination thereof (the “ROFR Asset Acceptance Negotiation Deadline”), the GP Conflicts Committee and the applicable Oasis Successor Entity will, within 10 days of the ROFR Negotiation Deadline, Noble and the Partnership shall engage a mutually agreed upon valuation firm to determine the fair market value of the non-cash consideration. Such If the GP Conflicts Committee and the applicable Oasis Successor Entity do not agree on the appointment of such valuation firm within such timeframe, within 15 days of the ROFR Negotiation Deadline, each of the GP Conflicts Committee and the applicable Oasis Successor Entity shall appoint an independent third party and shall instruct such third party, together with the independent third party appointed by the other party, to select a valuation firm to perform the valuation hereunder within 30 days of the ROFR Negotiation Deadline. The valuation firm mutually agreed upon by the GP Conflicts Committee and the applicable Oasis Successor Entity or selected pursuant to the procedures in the immediately preceding sentence, as applicable, shall be instructed to notify the Partnership GP Conflicts Committee and Noble the applicable Oasis Successor Entity of its decision fair market value determination within 30 days after all material information is submitted theretoof its appointment, which decision determination shall be final and binding. The fees of the valuation firm or firms will be split equally between Noble the Partnership Group and the Partnershipapplicable Oasis Successor Entity. The Partnership will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets to Noble within 15 GP Conflicts Committee shall have 30 days after the earlier of the date that the fair market value of all non-cash consideration has been agreed to by the GP Conflicts Committee and the applicable Oasis Successor Entity or the date that the valuation firm has submitted submits its determination of such fair market value to the parties (the “Second ROFR Asset Acceptance Deadline”)) to deliver to the applicable Oasis Successor Entity a ROFR Response. Failure to provide such notice on or If no ROFR Response is delivered by the GP Conflicts Committee prior to the Second ROFR Asset Acceptance Deadline shall be deemed to constitute an affirmative decision by Deadline, then the Partnership not to purchase the Sale Assets.
(iv) If the Partnership fails to exercise a right during any applicable period set forth in this Section 4.2(a), the Partnership GP Conflicts Committee shall be deemed to have waived its the right of first refusal on behalf of the Partnership Group with respect to such proposed disposition Sale Asset.
(b) If the GP Conflicts Committee elects in a ROFR Response delivered prior to the First ROFR Acceptance Deadline or, if applicable, the Second ROFR Acceptance Deadline, to exercise the right of first refusal on behalf of the Partnership Group with respect to the Sale Assets, but such waiver ROFR Response shall be deemed to have been accepted by the applicable Oasis Successor Entity and such Oasis Successor Entity shall enter into an agreement with the applicable Partnership Group Member providing for the consummation of the sale of the Sale Assets upon the terms set forth in the ROFR Response. Unless otherwise agreed between the applicable Oasis Successor Entity and the GP Conflicts Committee, the terms of the purchase and sale agreement will include the following:
(i) the Partnership Group will agree to deliver the Offer Price in cash (unless the Partnership Group and the applicable Oasis Successor Entity agree that such consideration will be paid, in whole or in part, in Partnership securities, an interest-bearing promissory note, assets or any combination thereof);
(ii) the applicable Oasis Successor Entity will represent that it has title to the Sale Assets that is sufficient to operate the Sale Assets in accordance with their intended and historical use, subject to (A) all recorded matters and all physical conditions in existence on the closing date for the purchase of the Sale Assets and (B) any other such matters as the GP Conflicts Committee may approve;
(iii) the applicable Oasis Successor Entity will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense prior to the delivery of the ROFR Response, to make such surveys, tests and inspections of the Sale Assets as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections occur during normal business hours and do not damage the Sale Assets or interfere with the activities of Oasis Successor or the applicable Oasis Successor Entity;
(iv) the GP Conflicts Committee will have the right to terminate, on behalf of the Partnership Group, the applicable Partnership Group Member’s obligation to purchase the Sale Assets under this Article IV if the results of any searches under Section 4.3(b)(ii) or Section 4.3(b)(iii) above are, in the reasonable opinion of the GP Conflicts Committee, unsatisfactory;
(v) the closing date for the purchase of the Sale Assets shall occur no later than 180 days following receipt by the applicable Oasis Successor Entity of the ROFR Response pursuant to Section 4.3(a);
(vi) Oasis Successor or the applicable Oasis Successor Entity and the applicable Partnership Group Member shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by the purchase and sale agreement, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and
(vii) the applicable Partnership Group Member shall not extend have any obligation to buy the Sale Assets if any of the consents referred to in Section 4.1(b) have not been obtained and the failure to obtain such consent would materially interfere with the use made and proposed to be made of the applicable Sale Assets by the Partnership Group Member.
(c) If the Transfer to the Proposed Transferee is not consummated in accordance with the terms of the Proposed ROFR Transaction within the later of (i) 150 days after the First ROFR Acceptance Deadline or the Second ROFR Acceptance Deadline, as applicable, and (ii) three business days after the satisfaction of all governmental approval or filing requirements, if any, then the Proposed ROFR Transaction shall be deemed to lapse, and the applicable Oasis Successor Entity may not Transfer any of the Sale Assets that were not Sale Assetsdescribed in the ROFR Notice without complying again with the provisions of this Article IV.
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ROFR Procedures. (a) If an Oasis Successor Entity proposes to Transfer any Subject Asset Sale Procedures(other than to an Affiliate in accordance with Section 4.1(a)) in connection with or following an Oasis Change of Control pursuant to a bona fide third-party offer (a “Proposed ROFR Transaction”), then Oasis Successor shall or shall cause such Oasis Successor Entity to, prior to entering into any such Proposed ROFR Transaction, first give notice in writing to the Partnership Group and to the GP Conflicts Committee (a “ROFR Notice”) of its intention to enter into such Proposed ROFR Transaction. The following sets forth Partnership Group shall delegate to the procedure GP Conflicts Committee full authority to review negotiate and approve any transaction subject to this Section 4.3. The ROFR Notice shall include any material terms, conditions and details as would be necessary for Noble the GP Conflicts Committee to undertake determine whether to honor exercise the right of first refusal on behalf of the Partnership Group with respect to the Proposed ROFR Assets. The actions described herein Transaction, which terms, conditions and details shall be taken by Noble or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.2(a).
at a minimum include: (i) If Noble proposes to Transfer one or more ROFR Assets to any third-party (other than a Partnership Group Member), then Noble shall promptly give written notice (a “Disposition Notice”) thereof to the Partnership. The Disposition Notice shall set forth the following information in respect of the proposed Transfer: (1) the name and address of any the prospective acquirors acquiror (collectively, the “Proposed Transferee”), (2ii) the assets Subject Assets subject to the Disposition Notice (Proposed ROFR Transaction ( as used in this Section 4.3, the “Sale Assets”), (3iii) the purchase price offered by such Proposed Transferee or, if no Proposed Transferee has been identified, a commercially reasonable price in the opinion of Noble (either price described in this clause (3), the “Offer Price”), (4iv) reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow the Partnership GP Conflicts Committee to reasonably determine the fair market value of such non-cash consideration and a statement of consideration, (v) the Oasis Successor’s estimate of the fair market value of any non-cash consideration in the opinion of Noble (such term in this Section 4.2 to refer, collectively, to both Noble and the Noble Energy Group Member Transferring the applicable ROFR Asset), and (5vi) all other material terms and conditions of the disposition Proposed ROFR Transaction that are then known to Noble and its Affiliatesany Oasis Successor Entity. To the extent a the Proposed Transferee’s offer consists of consideration other than cash (or in addition to cash) ), the Offer Price shall be deemed equal to the amount of any such cash plus the fair market value of such non-cash consideration.
(ii) The Partnership . In the event the GP Conflicts Committee and the applicable Oasis Successor Entity are able to agree on the fair market value of any non-cash consideration or if the consideration consists solely of cash, the GP Conflicts Committee will provide written notice of either (1) its intent to dispute the Offer Price, as provided in Section 4.2(a)(iii) below or (2) its decision regarding the exercise or non-exercise of its the right of first refusal to purchase the Sale Assets on behalf of the Partnership Group (the “ROFR Response”) to the applicable Oasis Successor Entity within 60 30 days of its receipt of the Disposition ROFR Notice (the “First ROFR Asset Acceptance Deadline”). Failure In the event the GP Conflicts Committee and the applicable Oasis Successor Entity are unable to provide such notice agree on or the fair market value of any non-cash consideration prior to the First ROFR Asset Acceptance Deadline Deadline, the GP Conflicts Committee shall be deemed indicate its desire to constitute an affirmative decision not to purchase the Sale Assets.
(iii) In the event (1) the Offer Price is based upon an offer from a third-party and such Offer Price contains non-cash consideration and the Partnership’s determination of determine the fair market value of such non-cash consideration described pursuant to the procedures outlined in the Disposition Notice (to be determined by the Partnership on or remainder of this Section 4.3(a) in a ROFR Response delivered prior to the First ROFR Asset Acceptance Deadline. If no ROFR Response is delivered by the GP Conflicts Committee prior to the First ROFR Acceptance Deadline, then the GP Conflicts Committee shall be deemed to have waived the right of first refusal on behalf of the Partnership Group with respect to such Sale Asset. In the event (i) the GP Conflicts Committee’s determination of the fair market value of any non-cash consideration described in the ROFR Notice is less than the fair market value of such consideration as determined by Noble the applicable Oasis Successor Entity in the Disposition ROFR Notice and (2ii) the Partnership GP Conflicts Committee and Noble the applicable Oasis Successor Entity are unable to mutually agree upon the fair market value of such non-cash consideration on or prior to within 30 days after the First GP Conflicts Committee notifies the applicable Oasis Successor Entity of its determination thereof (the “ROFR Asset Acceptance Negotiation Deadline”), the GP Conflicts Committee and the applicable Oasis Successor Entity will, within 10 days of the ROFR Negotiation Deadline, Noble and the Partnership shall engage a mutually agreed upon valuation firm to determine the fair market value of the non-cash consideration. Such If the GP Conflicts Committee and the applicable Oasis Successor Entity do not agree on the appointment of such valuation firm within such timeframe, within 15 days of the ROFR Negotiation Deadline, each of the GP Conflicts Committee and the applicable Oasis Successor Entity shall appoint an independent third party and shall instruct such third party, together with the independent third party appointed by the other party, to select a valuation firm to perform the valuation hereunder within 30 days of the ROFR Negotiation Deadline. The valuation firm mutually agreed upon by the GP Conflicts Committee and the applicable Oasis Successor Entity or selected pursuant to the procedures in the immediately preceding sentence, as applicable, shall be instructed to notify the Partnership GP Conflicts Committee and Noble the applicable Oasis Successor Entity of its decision fair market value determination within 30 days after all material information is submitted theretoof its appointment, which decision determination shall be final and binding. The fees of the valuation firm or firms will be split equally between Noble the Partnership Group and the Partnershipapplicable Oasis Successor Entity. The Partnership will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets to Noble within 15 GP Conflicts Committee shall have 30 days after the earlier of the date that the fair market value of all non-cash consideration has been agreed to by the GP Conflicts Committee and the applicable Oasis Successor Entity or the date that the valuation firm has submitted submits its determination of such fair market value to the parties (the “Second ROFR Asset Acceptance Deadline”)) to deliver to the applicable Oasis Successor Entity a ROFR Response. Failure to provide such notice on or If no ROFR Response is delivered by the GP Conflicts Committee prior to the Second ROFR Asset Acceptance Deadline shall be deemed to constitute an affirmative decision by Deadline, then the Partnership not to purchase the Sale Assets.
(iv) If the Partnership fails to exercise a right during any applicable period set forth in this Section 4.2(a), the Partnership GP Conflicts Committee shall be deemed to have waived its the right of first refusal on behalf of the Partnership Group with respect to such proposed disposition Sale Asset.
(b) If the GP Conflicts Committee elects in a ROFR Response delivered prior to the First ROFR Acceptance Deadline or, if applicable, the Second ROFR Acceptance Deadline, to exercise the right of first refusal on behalf of the Partnership Group with respect to the Sale Assets, but such waiver ROFR Response shall be deemed to have been accepted by the applicable Oasis Successor Entity and such Oasis Successor Entity shall enter into an agreement with the applicable Partnership Group Member providing for the consummation of the sale of the Sale Assets upon the terms set forth in the ROFR Response. Unless otherwise agreed between the applicable Oasis Successor Entity and the GP Conflicts Committee, the terms of the purchase and sale agreement will include the following:
(i) the Partnership Group will agree to deliver the Offer Price in cash (unless the Partnership Group and the applicable Oasis Successor Entity agree that such consideration will be paid, in whole or in part, in Partnership securities, an interest-bearing promissory note, assets or any combination thereof);
(ii) the applicable Oasis Successor Entity will represent that it has title to the Sale Assets that is sufficient to operate the Sale Assets in accordance with their intended and historical use, subject to (A) all recorded matters and all physical conditions in existence on the closing date for the purchase of the Sale Assets and (B) any other such matters as the GP Conflicts Committee may approve;
(iii) the applicable Oasis Successor Entity will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense prior to the delivery of the ROFR Response, to make such surveys, tests and inspections of the Sale Assets as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections occur during normal business hours and do not damage the Sale Assets or interfere with the activities of Oasis Successor or the applicable Oasis Successor Entity;
(iv) the GP Conflicts Committee will have the right to terminate, on behalf of the Partnership Group, the applicable Partnership Group Member’s obligation to purchase the Sale Assets under this Article IV if the results of any searches under Section 4.3(b)(ii) or Section 4.3(b)(iii) above are, in the reasonable opinion of the GP Conflicts Committee, unsatisfactory;
(v) the closing date for the purchase of the Sale Assets shall occur no later than 180 days following receipt by the applicable Oasis Successor Entity of the ROFR Response pursuant to Section 4.3(a);
(vi) Oasis Successor or the applicable Oasis Successor Entity and the applicable Partnership Group Member shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by the purchase and sale agreement, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and
(vii) the applicable Partnership Group Member shall not extend have any obligation to buy the Sale Assets if any of the consents referred to in Section 4.1(b) have not been obtained and the failure to obtain such consent would materially interfere with the use made and proposed to be made of the applicable Sale Assets by the Partnership Group Member.
(c) If the Transfer to the Proposed Transferee is not consummated in accordance with the terms of the Proposed ROFR Transaction within the later of (i) 150 days after the First ROFR Acceptance Deadline or the Second ROFR Acceptance Deadline, as applicable, and (ii) three business days after the satisfaction of all governmental approval or filing requirements, if any, then the Proposed ROFR Transaction shall be deemed to lapse, and the applicable Oasis Successor Entity may not Transfer any of the Sale Assets that were not Sale Assetsdescribed in the ROFR Notice without complying again with the provisions of this Article IV.
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