ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream to undertake to honor the right of first offer on the ROFO Equity. The actions described herein shall be taken by Noble or NBL Midstream, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4. (a) If NBL Midstream proposes to Transfer all or any part of any ROFO Equity (other than to a Noble Energy Group member in accordance with Section 4.3(a)) prior to the Rights Termination Date (a “Proposed ROFO Transaction”), NBL Midstream shall, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include any material terms, conditions and details that would be necessary for the Partnership to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstream, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream would propose to provide to non-Affiliates in connection with the Proposed ROFO Transaction. If the Partnership determines to purchase the ROFO Equity, the Partnership shall have 60 days following receipt of the ROFO Notice to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including the purchase price the Partnership proposes to pay for the ROFO Equity and the other terms of the purchase) pursuant to which the Partnership would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership within such 60-day period, then the Partnership shall be deemed to have waived its right of first offer with respect to such ROFO Equity subject to Section 4.3. (b) Unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream to the Partnership within 60 days of the delivery to NBL Midstream of the ROFO Response, such ROFO Response shall be deemed to have been accepted by NBL Midstream, and NBL Midstream shall enter into a definitive agreement with the Partnership providing for the consummation of the Proposed ROFO Transaction upon the terms set forth in the ROFO Response. Unless NBL Midstream and the Partnership otherwise agree, the terms of the definitive agreement will include the following: (i) the Partnership will deliver the agreed purchase price (in cash, Partnership Interests, an interest-bearing promissory note or any combination thereof); (ii) the closing date for the purchase of the ROFO Equity shall occur no later than 120 days following receipt by NBL Midstream of the ROFO Response pursuant to Section 4.3(a); (iii) each of NBL Midstream and the Partnership 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 this Section 4.4, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and (iv) neither NBL Midstream nor the Partnership shall have any obligation to consummate the Proposed ROFO Transaction if any consent referred to in Section 4.3(b) has not been obtained. (c) If the Partnership has not timely delivered a ROFO Response as specified in this Section 4.4 with respect to a Proposed ROFO Transaction that is subject to a ROFO Notice, NBL Midstream shall be free to enter into a Proposed ROFO Transaction with any third party on terms and conditions no more favorable to such third party than those set forth in the ROFO Notice. If NBL Midstream rejects a ROFO Response with respect to any Proposed ROFO Transaction, NBL Midstream shall be free to enter into a Proposed ROFO Transaction with any third party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership in the ROFO Response to NBL Midstream. (d) The Partnership may assign its rights and obligations under this Article IV to any Partnership Group Member.
Appears in 2 contracts
Samples: Omnibus Agreement, Omnibus Agreement (Noble Midstream Partners LP)
ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream to undertake to honor the right of first offer on the ROFO Equity. The actions described herein shall be taken by Noble or NBL Midstream, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4.
(a) If NBL Midstream In the event a ROFO Asset Owner proposes to Transfer all or any part of any applicable ROFO Equity Asset (other than to a Noble Energy Group member in accordance with Section 4.3(a)Permitted Transferee) prior to during the Rights Termination Date term of this Agreement (a “Proposed ROFO Transaction”), NBL Midstream such ROFO Asset Owner shall, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership Ergon (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include any material terms, conditions and details that as would be necessary for the Partnership Ergon to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstream, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream would propose to provide to non-Affiliates in connection with the Proposed applicable ROFO TransactionAsset Owner. If the Partnership determines to purchase the ROFO Equity, the Partnership Ergon shall have 60 30 days following receipt of the ROFO Notice to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream such ROFO Asset Owner (the “ROFO Response”). The ROFO Response shall be in writing and shall set forth the terms and conditions (including the purchase price the Partnership Ergon proposes to pay for the ROFO Equity Asset and the other terms of the purchase) pursuant to which the Partnership Ergon would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership Ergon within such 6030-day period, then the Partnership Ergon shall be deemed to have waived its right of first offer with respect to such ROFO Equity subject Asset, except to the extent reinstated as provided in Section 4.32.3(e).
(b) Unless If Ergon timely delivers a ROFO Response in accordance with Section 2.3(a), then, unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream the applicable ROFO Asset Owner to the Partnership Ergon within 60 30 days of the delivery to NBL Midstream of the ROFO Response, such ROFO Response shall be deemed to have been accepted by NBL Midstream, the applicable ROFO Asset Owner and NBL Midstream the applicable ROFO Asset Owner shall enter into a definitive an agreement with the Partnership Ergon or its Affiliate providing for the consummation of the Proposed ROFO Transaction upon the terms set forth in the ROFO Response. Unless NBL Midstream and otherwise agreed between the Partnership otherwise agreeand Ergon, the terms of the definitive purchase and sale agreement will include the following:following provisions (the “Acceptance Terms”):
(i) the Partnership Ergon will agree to deliver the agreed purchase price (entirely in cash, Partnership Interests, an interest-bearing promissory note or any combination thereof);
(ii) Ergon shall purchase the ROFO Assets “as is, where is”;
(iii) the ROFO Asset Owner will represent to Ergon that it has title to the ROFO Assets that is sufficient to operate the ROFO Assets in accordance with their historical use, subject to all recorded matters and all physical conditions in existence on the closing date for the purchase of the applicable ROFO Equity Assets. If Ergon desires to obtain any title insurance with respect to the ROFO Asset, the full cost and expense of obtaining the same (including the cost of title examination, document duplication and policy premium) shall occur be borne by Ergon;
(iv) the ROFO Asset Owner will grant to Ergon the right, exercisable at Ergon’s risk and expense prior to closing of the Proposed ROFO Transaction, to make such surveys, tests and inspections of the ROFO Assets as Ergon may deem desirable, so long as such surveys, tests or inspections do not damage the ROFO Assets or interfere with the activities of the applicable ROFO Asset Owner; provided, however, that no later invasive inspection or sampling of soil or materials shall be performed without the prior written consent of the ROFO Asset Owner, which may be withheld in its sole and absolute discretion;
(v) Ergon will have the right to terminate its obligation to purchase the ROFO Asset under this Article 2 if the results of any title examination, survey, test or inspection obtained under Sections 2.3(b)(iii) and 2.3(b)(iv) are, in the reasonable opinion of Ergon, unsatisfactory;
(vi) on the closing date set forth in the ROFO Response (such date to be not less than 90 and not more than 120 days following receipt by NBL Midstream after the date such ROFO Response is delivered to the ROFO Asset Owner (the “ROFO Drop Dead Date”)), the ROFO Asset Owner and Ergon shall close the purchase of the ROFO Assets on the terms set forth in the ROFO Response pursuant to Section 4.3(a)and on the Acceptance Terms, and in the event of any conflict between the terms set forth in the ROFO Response and the Acceptance Terms, the Acceptance Terms shall control;
(iiivii) each of NBL Midstream the ROFO Asset Owner and the Partnership Ergon 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 this Section 4.4Article 2, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and;
(ivviii) neither NBL Midstream the ROFO Asset Owner nor the Partnership Ergon shall have any obligation to consummate sell or buy the Proposed ROFO Transaction Assets if any consent of the consents referred to in Section 4.3(b2.2(b) has not been obtained; and
(ix) the ROFO Asset Owner and Ergon shall cooperate in good faith in obtaining all necessary governmental and other third-party approvals, waivers and consents required for the closing. Any such closing shall be delayed (and the ROFO Drop Dead Date shall be extended), to the extent required, until the third Business Day following the expiration of any required waiting periods under the HSR Act; provided, however, that such ROFO Drop Dead Date shall not extended for more than 65 days following the original ROFO Drop Dead Date described in Section 2.3(b)(vi).
(c) If the Partnership ROFO Asset Owner accepts or is deemed to have accepted the ROFO Response, but the closing of the Proposed ROFO Transaction between the ROFO Asset Owner and Ergon does not occur on or before the ROFO Drop Dead Date, as such date may be extended pursuant to Section 2.3(b)(ix) (other an as a result of a breach of this Agreement or the applicable purchase and sale agreement by the ROFO Asset Owner), then the ROFO Asset Owner shall be free to enter into a Proposed ROFO Transaction with any third party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party than those proposed by Ergon in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by Ergon in the ROFO Response to such ROFO Asset Owner.
(d) If Ergon has not timely delivered a ROFO Response as specified in this Section 4.4 above with respect to a Proposed ROFO Transaction that is subject to a ROFO Notice, NBL Midstream the applicable ROFO Asset Owner shall be free to enter into a Proposed ROFO Transaction with any third party on terms and conditions no more favorable to such third party than those set forth in the ROFO Notice. If NBL Midstream rejects a ROFO Response with respect to any such Proposed ROFO TransactionTransaction is rejected by the applicable ROFO Asset Owner, NBL Midstream such ROFO Asset Owner shall be free to enter into a Proposed ROFO Transaction with any third party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group Ergon in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership Ergon in the ROFO Response to NBL Midstreamsuch ROFO Asset Owner.
(de) The Partnership If a Proposed ROFO Transaction with a third party is not consummated as provided in Section 2.3(c) or Section 2.3(d) within one year of, as applicable, the ROFO Drop Dead Date (with respect to a Proposed ROFO Transaction described in Section 2.3(c)) or Ergon’s failure to timely deliver a ROFO Response with respect to such Proposed ROFO Transaction that is subject to a ROFO Notice or the rejection by the ROFO Asset Owner of a ROFO Response (with respect to a Proposed ROFO Transaction described in Section 2.3(d)), then, in each case, the ROFO Asset Owner may assign its rights and obligations under not Transfer any ROFO Assets described in such ROFO Notice without complying again with the provisions of this Article IV 2, if and to any Partnership Group Memberthe extent then applicable.
Appears in 2 contracts
Samples: Omnibus Agreement (Blueknight Energy Partners, L.P.), Contribution Agreement (Blueknight Energy Partners, L.P.)
ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream the applicable Noble Energy Group Member to undertake to honor the right of first offer on the ROFO Equity. The Noble’s actions described herein in this Section 4.4 shall be taken by Noble or NBL MidstreamNoble, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4actions.
(a) If NBL Midstream the applicable Noble Energy Group Member proposes to Transfer all or any part of any ROFO Equity (other than to a Noble Energy Group member in accordance with Section 4.3(a)) Third Party prior to the Rights Termination Date (a “Proposed ROFO Transaction”), NBL Midstream the applicable Noble Energy Group Member shall, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include any material terms, conditions and details that would be necessary for the Partnership to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstreamthe applicable Noble Energy Group Member, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream the applicable Noble Energy Group Member would propose to provide to non-Affiliates in connection with the Proposed ROFO Transaction. If the Partnership determines to purchase the ROFO Equity, the Partnership shall have 60 days following receipt of the ROFO Notice to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream the applicable Noble Energy Group Member (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including the purchase price the Partnership proposes to pay for the ROFO Equity and the other terms of the purchase) pursuant to which the Partnership would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership within such 60-day period, then the Partnership shall be deemed to have waived its right of first offer with respect to such ROFO Equity subject to Section 4.3.
(b) Unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream the applicable Noble Energy Group Member to the Partnership within 60 days of after the delivery to NBL Midstream the applicable Noble Energy Group Member of the ROFO Response, such ROFO Response shall be deemed to have been accepted by NBL Midstreamthe applicable Noble Energy Group Member, and NBL Midstream the applicable Noble Energy Group Member shall enter into a definitive agreement with the Partnership providing for the consummation of the Proposed ROFO Transaction upon the terms set forth in the ROFO Response. Unless NBL Midstream the applicable Noble Energy Group Member and the Partnership otherwise agree, the terms of the definitive agreement will include reasonable and customary terms and conditions, including the following:
(i) the Partnership will deliver the agreed purchase price (in cash, Partnership Interests, an interest-bearing promissory note or any combination thereof);
(ii) the closing date for the purchase of the ROFO Equity shall occur no later than 120 days following receipt by NBL Midstream the applicable Noble Energy Group Member of the ROFO Response pursuant to Section 4.3(a);
(iii) each of NBL Midstream the applicable Noble Energy Group Member and the Partnership 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 between a Noble Energy Group Member and a Partnership Group Member contemplated by this Section 4.4, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and
(iv) neither NBL Midstream the applicable Noble Energy Group Member nor the Partnership shall have any obligation to consummate the Proposed ROFO Transaction if any consent referred to in Section 4.3(b) 4.3 has not been obtained.
(c) If the Partnership has not timely delivered a ROFO Response as specified in this Section 4.4 with respect to a Proposed ROFO Transaction that is subject to a ROFO Notice, NBL Midstream the applicable Noble Energy Group Member shall be free to enter into a Proposed ROFO Transaction with any third party Third Party on terms and conditions no more favorable to such third party Third Party than those set forth in the ROFO Notice. If NBL Midstream the applicable Noble Energy Group Member rejects a ROFO Response with respect to any Proposed ROFO Transaction, NBL Midstream the applicable Noble Energy Group Member shall be free to enter into a Proposed ROFO Transaction with any third party Third Party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party Third Party than those proposed in respect of by the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership in the ROFO Response to NBL Midstream.
(d) The Partnership may assign its rights and obligations under this Article IV to any Partnership Group Member.and
Appears in 1 contract
Samples: Omnibus Agreement
ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream to undertake to honor the right of first offer on the ROFO Equity. The actions described herein shall be taken by Noble or NBL Midstream, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4.
(a) If NBL Midstream an Oasis Entity proposes to Transfer all or any part of any ROFO Equity Subject Asset (other than to a Noble Energy Group member an Affiliate in accordance with Section 4.3(a4.1(a)) prior to the Rights Termination Date an Oasis Change of Control (a “Proposed ROFO Transaction”), NBL Midstream shallOasis shall or shall cause such Oasis Entity to, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership Group (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include (i) a description of the Subject Assets subject to the Proposed ROFO Transaction (as used in this Section 4.2, the “Sale Assets”) and (ii) any material terms, conditions and details that as would be necessary for the a Partnership Group Member to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstreamthe applicable Oasis Entity, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream such Oasis Entity would propose to provide to non-Affiliates in connection with the Proposed ROFO Transaction. If the a Partnership determines Group Member decides to purchase the ROFO EquitySale Assets, the applicable Partnership Group Member shall have 60 thirty (30) days following receipt of the ROFO Notice (the “ROFO Response Deadline”) to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream such Oasis Entity (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including including, without limitation, the purchase price the applicable Partnership Group Member proposes to pay for the ROFO Equity Sale Assets and the other terms of the purchasepurchase including, if requested by an Oasis Entity, the terms on which the Partnership Group Member will provide services to the Oasis Entity to enable the Oasis Entity to utilize the Sale Assets) pursuant to which the applicable Partnership Group Member would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership within such 60-day periodGroup by the ROFO Response Deadline, then the Partnership Group shall be deemed to have decided not to purchase the Sale Assets and to have waived its right of first offer with respect to such the Sale Assets, and the Oasis Entity shall be free to enter into the Proposed ROFO Equity subject to Section 4.3Transaction with any third party on terms and conditions determined in the sole discretion of the applicable Oasis Entity.
(b) Unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream to the If a Partnership within 60 days of the delivery to NBL Midstream of the Group Member submits a ROFO Response, such ROFO Response the Oasis Entity shall be deemed negotiate in good faith with the Partnership Group Member for a period of thirty (30) days in order to have been accepted by NBL Midstream, and NBL Midstream shall give the Partnership Group Member an opportunity to enter into a letter of intent or definitive documentation for the purchase and sale of the Sale Assets on terms that are mutually acceptable to the Oasis Entity and the Partnership Group Member, and, if applicable, the Partnership Group Member shall use commercially reasonable efforts to enter into an agreement with the Partnership providing for the consummation of the Proposed ROFO Transaction upon Oasis Entity setting forth the terms set forth in on which the ROFO ResponsePartnership Group Member will provide services to the Oasis Entity to enable the Oasis Entity to utilize the Sale Assets. Unless NBL Midstream otherwise agreed between Oasis and the applicable Partnership otherwise agreeGroup Member, the terms of the definitive purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver the agreed purchase price in cash (unless the Partnership Group and Oasis agree that such consideration will be paid, in cashwhole or in part, in Partnership Interestssecurities, an interest-bearing promissory note note, assets or any combination thereof);
(ii) Oasis 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 Partnership Group Member may approve;
(iii) Oasis 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 ROFO Equity 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;
(iv) the Partnership Group Member will have the right to terminate its obligation to purchase the Sale Assets under this Article IV if the results of any searches under Section 4.2(b)(ii) or Section 4.2(b)(iii) are, in the reasonable opinion of the Partnership Group Member, unsatisfactory;
(v) the right of the Partnership Group Member to purchase the Sale Assets shall terminate if the closing date for the purchase of the Sale Assets does not occur no later than 120 on or before the date that is 180 days following receipt by NBL Midstream Oasis of the ROFO Response pursuant to Section 4.3(a4.2(a);
(iiivi) each of NBL Midstream Oasis 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 this Section 4.4the 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
(ivvii) neither NBL Midstream nor the applicable Partnership Group Member shall not have any obligation to consummate buy the Proposed ROFO Transaction Sale Assets if any consent of the consents referred to in Section 4.3(b4.1(b) has have not been obtainedobtained and the failure to obtain such consent would materially interfere with the use made and proposed to be made of the Sale Assets by the Partnership Group Member.
(c) If (i) the Oasis Entity and the Partnership has not Group Member timely delivered delivering a ROFO Response as specified in this Section 4.4 have not entered into a letter of intent or a definitive purchase and sale agreement with respect to the Sale Assets within the 30-day negotiation period provided for in Section 4.2(b), (ii) no definitive agreement is reached within 60-days following the execution of a Proposed ROFO Transaction that letter of intent, or (iii) any such letter of intent or agreement is subject to a ROFO Noticeentered into but subsequently terminated, NBL Midstream shall be free to the Oasis Entity may, at any time during the succeeding 150-day period, enter into a Proposed ROFO Transaction definitive transfer agreement with any third party with respect to the Sale Assets on terms and conditions no more favorable that, when taken as a whole, are superior, in the good faith determination of such Oasis Entity, to such third party than those set forth in the ROFO Noticelast written offer proposed by the Partnership Group Member during negotiations between the Partnership Group Member and the Oasis Entity pursuant to Section 4.2(b), and may Transfer the Sale Assets pursuant to such transfer agreement. If NBL Midstream rejects Oasis or any Oasis Entity does not enter into a ROFO Response definitive agreement with a third party with respect to any the Proposed ROFO TransactionTransaction within such 150-day period, NBL Midstream Oasis shall, or shall be free cause such Oasis Entity to, comply with the provisions of this Article IV again prior to enter entering into a any Proposed ROFO Transaction with any third party (i) on terms and conditions (excluding those relating respect to price) that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership in the ROFO Response to NBL MidstreamSale Assets.
(d) The If requested by the Partnership may assign its rights Group and obligations under at the Partnership Group’s expense, Oasis shall use commercially reasonable efforts to provide or prepare, or cause to be provided or prepared, any audited or unaudited financial statements with respect to any Sale Assets Transferred pursuant to this Article IV to the extent required under Regulation S-X promulgated by the Securities and Exchange Commission or any Partnership Group Membersuccessor statute.
Appears in 1 contract
ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream to undertake to honor the right of first offer on the ROFO Equity. The actions described herein shall be taken by Noble or NBL Midstream, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4.
(a) If NBL Midstream an Oasis Entity proposes to Transfer all or any part of any ROFO Equity Subject Asset (other than to a Noble Energy Group member an Affiliate in accordance with Section 4.3(a4.1(a)) prior to the Rights Termination Date an Oasis Change of Control (a “Proposed ROFO Transaction”), NBL Midstream shallOasis shall or shall cause such Oasis Entity to, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership Group (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include (i) a description of the Subject Assets subject to the Proposed ROFO Transaction (as used in this Section 4.2, the “Sale Assets”) and (ii) any material terms, conditions and details that as would be necessary for the a Partnership Group Member to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstreamthe applicable Oasis Entity, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream such Oasis Entity would propose to provide to non-Affiliates in connection with the Proposed ROFO Transaction. If the a Partnership determines Group Member decides to purchase the ROFO EquitySale Assets, the applicable Partnership Group Member shall have 60 thirty (30) days following receipt of the ROFO Notice (the “ROFO Response Deadline”) to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream such Oasis Entity (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including including, without limitation, the purchase price the applicable Partnership Group Member proposes to pay for the ROFO Equity Sale Assets and the other terms of the purchasepurchase including, if requested by an Oasis Entity, the terms on which the Partnership Group Member will provide services to the Oasis Entity to enable the Oasis Entity to utilize the Sale Assets) pursuant to which the applicable Partnership Group Member would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership within such 60-day periodGroup by the ROFO Response Deadline, then the Partnership Group shall be deemed to have decided not to purchase the Sale Assets and to have waived its right of first offer with respect to such the Sale Assets, and the Oasis Entity shall be free to enter into the Proposed ROFO Equity subject to Section 4.3Transaction with any third party on terms and conditions determined in the sole discretion of the applicable Oasis Entity.
(b) Unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream to the If a Partnership within 60 days of the delivery to NBL Midstream of the Group Member submits a ROFO Response, such ROFO Response the Oasis Entity shall be deemed negotiate in good faith with the Partnership Group Member for a period of thirty (30) days in order to have been accepted by NBL Midstream, and NBL Midstream shall give the Partnership Group Member an opportunity to enter into a letter of intent or definitive documentation for the purchase and sale of the Sale Assets on terms that are mutually acceptable to the Oasis Entity and the Partnership Group Member, and, if applicable, the Partnership Group Member shall use commercially reasonable efforts to enter into an agreement with the Partnership providing for the consummation of the Proposed ROFO Transaction upon Oasis Entity setting forth the terms set forth in on which the ROFO ResponsePartnership Group Member will provide services to the Oasis Entity to enable the Oasis Entity to utilize the Sale Assets. Unless NBL Midstream otherwise agreed between Oasis and the applicable Partnership otherwise agreeGroup Member, the terms of the definitive purchase and sale agreement will include the following:
(i) the Partnership Group Member will deliver the agreed purchase price in cash (unless the Partnership Group and Oasis agree that such consideration will be paid, in cashwhole or in part, in Partnership Interestssecurities, an interest-bearing promissory note note, assets or any combination thereof);
(ii) Oasis 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 Partnership Group Member may approve;
(iii) Oasis 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 ROFO Equity 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;
(iv) the Partnership Group Member will have the right to terminate its obligation to purchase the Sale Assets under this Article IV if the results of any searches under Section 4.2(b)(ii) or Section 4.2(b)(iii) are, in the reasonable opinion of the Partnership Group Member, unsatisfactory;
(v) the right of the Partnership Group Member to purchase the Sale Assets shall terminate if the closing date for the purchase of the Sale Assets does not occur no later than 120 on or before the date that is 180 days following receipt by NBL Midstream Oasis of the ROFO Response pursuant to Section 4.3(a4.2(a);
(iiivi) each of NBL Midstream Oasis 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 this Section 4.4the 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
(ivvii) neither NBL Midstream nor the applicable Partnership Group Member shall not have any obligation to consummate buy the Proposed ROFO Transaction Sale Assets if any consent of the consents referred to in Section 4.3(b4.1(b) has have not been obtainedobtained and the failure to obtain such consent would materially interfere with the use made and proposed to be made of the Sale Assets by the Partnership Group Member.
(c) If (i) the Oasis Entity and the Partnership has not Group Member timely delivered delivering a ROFO Response as specified in this Section 4.4 have not entered into a letter of intent or a definitive purchase and sale agreement with respect to the Sale Assets within the 30-day negotiation period provided for in Section 4.2(b), (ii) no definitive agreement is reached within 60-days following the execution of a Proposed ROFO Transaction that letter of intent, or (iii) any such letter of intent or agreement is subject to a ROFO Noticeentered into but subsequently terminated, NBL Midstream shall be free to the Oasis Entity may, at any time during the succeeding 150-day period, enter into a Proposed ROFO Transaction definitive transfer agreement with any third party with respect to the Sale Assets on terms and conditions no more favorable that, when taken as a whole, are superior, in the good faith determination of such Oasis Entity, to such third party than those set forth in the ROFO Noticelast written offer proposed by the Partnership Group Member during negotiations between the Partnership Group Member and the Oasis Entity pursuant to Section 4.2(b), and may Transfer the Sale Assets pursuant to such transfer agreement. If NBL Midstream rejects Oasis or any Oasis Entity does not enter into a ROFO Response definitive agreement with a third party with respect to any the Proposed ROFO TransactionTransaction within such 150-day period, NBL Midstream Oasis shall, or shall be free cause such Oasis Entity to, comply with the provisions of this ARTICLE IV again prior to enter entering into a any Proposed ROFO Transaction with any third party (i) on terms and conditions (excluding those relating respect to price) that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership in the ROFO Response to NBL MidstreamSale Assets.
(d) The If requested by the Partnership may assign its rights Group and obligations under at the Partnership Group’s expense, Oasis shall use commercially reasonable efforts to provide or prepare, or cause to be provided or prepared, any audited or unaudited financial statements with respect to any Sale Assets Transferred pursuant to this Article IV to the extent required under Regulation S-X promulgated by the Securities and Exchange Commission or any Partnership Group Membersuccessor statute.
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ROFO Procedures. The following sets forth the procedure for Noble and NBL Midstream the applicable Noble Energy Group Member to undertake to honor the right of first offer on the ROFO Equity. The Noble’s actions described herein in this Section 4.4 shall be taken by Noble or NBL MidstreamNoble, or Noble shall cause the applicable Noble Energy Group Member to take such actions required by this Section 4.4actions.
(a) If NBL Midstream the applicable Noble Energy Group Member proposes to Transfer all or any part of any ROFO Equity (other than to a Noble Energy Group member in accordance with Section 4.3(a)) Third Party prior to the Rights Termination Date (a “Proposed ROFO Transaction”), NBL Midstream the applicable Noble Energy Group Member shall, prior to entering into any such Proposed ROFO Transaction, first give notice in writing to the Partnership (the “ROFO Notice”) of its intention to enter into such Proposed ROFO Transaction. The ROFO Notice shall include any material terms, conditions and details that would be necessary for the Partnership to make a responsive offer to enter into the Proposed ROFO Transaction with NBL Midstreamthe applicable Noble Energy Group Member, which terms, conditions and details shall at a minimum include any terms, conditions or details that NBL Midstream the applicable Noble Energy Group Member would propose to provide to non-Affiliates in connection with the Proposed ROFO Transaction. If the Partnership determines to purchase the ROFO Equity, the Partnership shall have 60 days following receipt of the ROFO Notice to propose an offer to enter into the Proposed ROFO Transaction with NBL Midstream the applicable Noble Energy Group Member (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including the purchase price the Partnership proposes to pay for the ROFO Equity and the other terms of the purchase) pursuant to which the Partnership would be willing to enter into a binding agreement for the Proposed ROFO Transaction. If no ROFO Response is delivered by the Partnership within such 60-day period, then the Partnership shall be deemed to have waived its right of first offer with respect to such ROFO Equity subject to Section 4.3.
(b) Unless the ROFO Response is rejected pursuant to written notice delivered by NBL Midstream the applicable Noble Energy Group Member to the Partnership within 60 days of after the delivery to NBL Midstream the applicable Noble Energy Group Member of the ROFO Response, such ROFO Response shall be deemed to have been accepted by NBL Midstreamthe applicable Noble Energy Group Member, and NBL Midstream the applicable Noble Energy Group Member shall enter into a definitive agreement with the Partnership providing for the consummation of the Proposed ROFO Transaction upon the terms set forth in the ROFO Response. Unless NBL Midstream the applicable Noble Energy Group Member and the Partnership otherwise agree, the terms of the definitive agreement will include reasonable and customary terms and conditions, including the following:
(i) the Partnership will deliver the agreed purchase price (in cash, Partnership Interests, an interest-bearing promissory note or any combination thereof);
(ii) the closing date for the purchase of the ROFO Equity shall occur no later than 120 days following receipt by NBL Midstream the applicable Noble Energy Group Member of the ROFO Response pursuant to Section 4.3(a);
(iii) each of NBL Midstream the applicable Noble Energy Group Member and the Partnership 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 between a Noble Energy Group Member and a Partnership Group Member contemplated by this Section 4.4, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and
(iv) neither NBL Midstream the applicable Noble Energy Group Member nor the Partnership shall have any obligation to consummate the Proposed ROFO Transaction if any consent referred to in Section 4.3(b) 4.3 has not been obtained.
(c) If the Partnership has not timely delivered a ROFO Response as specified in this Section 4.4 with respect to a Proposed ROFO Transaction that is subject to a ROFO Notice, NBL Midstream the applicable Noble Energy Group Member shall be free to enter into a Proposed ROFO Transaction with any third party Third Party on terms and conditions no more favorable to such third party Third Party than those set forth in the ROFO Notice. If NBL Midstream the applicable Noble Energy Group Member rejects a ROFO Response with respect to any Proposed ROFO Transaction, NBL Midstream the applicable Noble Energy Group Member shall be free to enter into a Proposed ROFO Transaction with any third party Third Party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party Third Party than those proposed in respect of by the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 100% of the price offered by the Partnership in the ROFO Response to NBL Midstream.
the applicable Noble Energy Group Member. If a Proposed ROFO Transaction with a Third Party is not consummated as provided in this Section 4.4(c) within the later of (dA) The Partnership 180 days after the expiration of the 60-day period set forth in Section 4.4(a) or the applicable Noble Energy Group Member’s delivery of notice rejecting the ROFO Response, as applicable, and (B) 10 days after the satisfaction of all approval or filing requirements with Governmental Authorities, if any, the ROFO Notice shall be deemed to lapse, and no member of the Noble Energy Group may assign its rights enter into a Proposed ROFO Transaction with a Third Party without complying again with the provisions of this Article IV, and obligations under any purported consummation of a Proposed ROFO Transaction with a Third Party not in compliance with this Article IV shall be, to any Partnership Group Memberthe fullest extent permitted by law, null and void.
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