Common use of Series ME Right of First Refusal Clause in Contracts

Series ME Right of First Refusal. (a) If any Partner receives a Third Party Offer for the Transfer of all or a part of such Partner’s (and its respective Permitted Transferees) Partnership Interests in Series ME and such Partner (the “ME Offering Partner”) desires to accept and is otherwise permitted to effect such proposed Transfer pursuant to this Article IV, such ME Offering Partner shall deliver written notice of such Third Party Offer (the “ME ROFR Notice”) to the Managing General Partner of the Partnership generally as soon as reasonably practicable, but in no event less than 35 days prior to the date of the proposed Transfer. The date that the ME ROFR Notice is received by the Managing General Partner of the Partnership generally shall constitute the “ME ROFR Notice Date.” Within five Business Days following the ME ROFR Notice Date, the Managing General Partner of the Partnership generally shall send a copy of the ME ROFR Notice along with a letter indicating the ME ROFR Notice Date to the ROFR Holders. The ME ROFR Notice shall set forth the identity of the Third Party (including, (x) if such information is not publicly available, information about the identity of the Third Party, (y) the identity of Affiliates of the Third Party and (z) if the Third Party is making the Third Party Offer as a nominee of another Person, the identity of such other Person and its Affiliates), the amount and the Partnership Interests to be sold (the “ME Offered Interests”), the proposed purchase price for the ME Offered Interests (the “ME ROFR Offer Price”), all details of the payment terms and all other material terms and conditions, including the nature of the representations and warranties to be made and the indemnities to be given, in connection with the proposed Transfer. The ME ROFR Offer Price shall be expressed in U.S. dollars, whether or not the form of consideration in the Third Party Offer is wholly or partially cash or cash equivalents. (b) Each ROFR Holder shall have the right, but not the obligation, to purchase up to that amount of the ME Offered Interests equal to the product of (i) the amount of the ME Offered Interests and (ii) a fraction (the “ME ROFR Proportionate Share”), the numerator of which shall be the Series ME Percentage Interest of such ROFR Holder and the denominator of which shall be the sum of the Series ME Percentage Interests held by the ROFR Holders. Within 25 days after the ME ROFR Notice Date, each ROFR Holder may deliver a written notice to the ME Offering Partner, the Managing General Partner of the Partnership generally and the other ME ROFR Holder of its election to purchase such ME Offered Interests. Any ROFR Holder whose written notice has not been received by the Managing General Partner of the Partnership generally within such 25-day period shall be deemed to have elected not to exercise its right of first refusal in connection with such Transfer. To the extent a ROFR Holder does not elect to purchase its full ME ROFR Proportionate Share of such ME Offered Interests, the other ROFR Holder, if it has elected to purchase its full ME ROFR Proportionate Share, shall be entitled, by delivering written notice to the ME Offering Partner and the Managing General Partner of the Partnership generally within five Business Days following the end of such 25-day period (such fifth Business Day, the “ME ROFR Expiration Date”), to purchase up to all of the remaining ME Offered Interests. The delivery of a notice of election under this Section 4.6(b) shall constitute an irrevocable commitment to purchase such ME Offered Interests. If the ROFR Holders shall have elected to purchase all but not less than all of the ME Offered Interests, the Managing General Partner of the Partnership generally shall thereafter set a reasonable place and time for the closing of the purchase and sale of the ME Offered Interests, which shall be not less than 10 days nor more than 60 days after the ME ROFR Expiration Date (subject to extension to the extent necessary to pursue any required regulatory or Partner approvals, including to allow for the expiration or termination of all waiting periods under the HSR Act) unless otherwise agreed by all of the parties to such transaction. (c) The purchase price and terms and conditions for the purchase of the ME Offered Interests pursuant to this Section 4.6 shall be the purchase price and terms and conditions set forth in the applicable Third Party Offer (or the cash equivalent thereof); provided that the purchase price shall be the ME ROFR Offer Price and shall be payable in immediately available U.S. dollars; and provided further that the ME Offering Partner shall at a minimum make customary representations and warranties concerning (i) such ME Offering Partner’s valid title to and ownership of the ME Offered Interests, free and clear of all liens, claims and encumbrances (excluding those arising hereunder and under applicable securities laws), (ii) such ME Offering Partner’s authority, power and right to enter into and consummate the sale of the ME Offered Interests, (iii) the absence of any violation, default or acceleration of any agreement or obligation to which such ME Offering Partner is subject or by which its assets are bound as a result of the sale of the ME Offered Interests and (iv) the absence of, or compliance with, any governmental or third party consents, approvals, filings or notifications required to be obtained or made by such ME Offering Partner in connection with the sale of the ME Offered Interests. The ME Offering Partner and participating ROFR Holders shall use commercially reasonable efforts to close the purchase of the ME Offered Interests as soon as reasonably practicable following the ME ROFR Expiration Date and shall each execute and deliver such instruments and documents and take such actions, including obtaining all applicable approvals and consents and making all applicable notifications and filings, as the other parties may reasonably request in order more effectively to implement the purchase and sale of the ME Offered Interests hereunder. (d) Notwithstanding the foregoing, if (i) the ROFR Holders (A) shall have elected to purchase less than all of the ME Offered Interests or (B) shall not have elected to purchase any of the ME Offered Interests on or prior to the ME ROFR Expiration Date, and the ME Offering Partner has fully complied with the provisions of this Section 4.6, then the ME Offering Partner may sell all, but not less than all, of the ME Offered Interests within 90 days after the ME ROFR Expiration Date (subject to extension for a reasonable amount of time to the extent necessary to obtain any required regulatory or Partner approvals, including to allow for the expiration of all waiting periods under the HSR Act) or (ii) if the ROFR Holders fail to consummate the closing of the purchase and sale of the Offered Interests within the time period provided in the last sentence of Section 4.6(b) (such period, the “ME ROFR Closing Period”) and the ME Offering Partner has fully complied with the provisions of this Section 4.6, then the ME Offering Partner may sell all, but not less than all, of the ME Offered Interests within 90 days after the expiration of the ME ROFR Closing Period to the Third Party, in each case subject to the provisions of Section 4.2. Any such sale shall not be at less than the purchase price or upon terms and conditions more favorable in any material respect, individually or in the aggregate, to the purchaser than those specified in the Third Party Offer. If the ME Offered Interests are not so transferred within the applicable time periods specified in this Section 4.6(d), the ME Offering Partner may not sell any of the ME Offered Interests without again complying in full with the provisions of this Article IV. (e) Each of EECI and Enbridge Partners shall be entitled to assign any rights it has to purchase ME Offered Interests pursuant to this Section 4.6 to any of its Permitted Transferees. (f) This Section 4.6 shall not apply to any Transfer or proposed Transfer of Partnership Interests to a Permitted Transferee.