Common use of First Offer Clause in Contracts

First Offer. Provided that no material Event of Default has occurred and is continuing, if Lessor shall desire to sell or convey the Property to a third party that is not an Affiliate of Lessor, then Lessor shall first give Lessee the right to purchase the Property for a price and on terms and conditions determined by Lessor and set forth in a notice given to Lessee (the “Offer”). Lessee shall have twenty (20) Business Days from receipt of the Offer within which to elect to purchase the Property on the precise terms and conditions of the Offer (except that if the Offer shall be in whole or in part for consideration other than cash, Lessee shall have the right to pay in cash the fair market value of such noncash consideration). If Lessee elects to so purchase the Property, Lessee shall give to Lessor written notice thereof (“Acceptance Notice”) and the closing shall be held within forty-five (45) days after the date of the Acceptance Notice or such longer period of time as is set forth in the Offer, whereupon Lessor shall convey the Property to Lessee. At the closing, Lessor shall deliver to Lessee a special warranty deed (or local equivalent) sufficient to convey to Lessee fee simple title to the Property free and clear of all easements, rights-of-way, encumbrances, liens, covenants, conditions, restrictions, obligations and liabilities, except for any such matters in effect upon the acquisition of the Property by Lessor, such matters created, suffered or consented to in writing by Lessee or arising by reason of the failure of Lessee to have observed or performed any term, covenant or agreement of this Lease to be observed or performed by Lessee, and the lien of any taxes then affecting the Property; provided, however, that if the Offer contemplates that the Property is to be conveyed subject to any existing financing then the Property shall be conveyed subject to the mortgage or deed of trust securing such financing unless Lessee elects to pay off such financing in accordance with the terms of the applicable loan documents (provided that Lessee shall not be responsible for payment of any late charges or other charges that are not directly related to the payoff). If Lessee does not timely elect to purchase the Property, Lessor shall, subject to Section 16.03, be free to sell the Property to any other Person within twelve (12) months of Lessee’s rejection or deemed rejection without being required to comply again with the foregoing provisions of this Section 16.01, provided that, if Lessor intends to sell the Property (i) after such twelve (12) month period, or (ii) within such twelve (12) month period at a price less than ninety-five percent (95%) of the price described in the Offer, Lessor shall give Lessee written notice, setting forth the applicable purchase price and terms and conditions, and Lessee shall have twenty (20) business days to elect in writing to purchase the Property at such purchase price and on such terms and conditions. The right of first offer granted by this Section 16.01 with respect to the Property shall not survive the expiration or earlier termination of this Lease.

First Offer. Provided that no material Event If a Shareholder (the "Selling Shareholder") desires to transfer any or all of Default has occurred and is continuingsuch Shareholder's Stock (the "Offered Stock"), if Lessor shall desire to sell or convey the Property to a third party that is not an Affiliate of Lessor, then Lessor such Shareholder shall first give Lessee written notice (a "Transfer Notice") thereof to the right Company, identifying the proposed transferee, the number of shares sought to be transferred, the proposed purchase the Property for a price and on terms and conditions determined by Lessor and set forth in a notice given to Lessee (the “Offer”"Offered Price"). Lessee shall have twenty (20) Business Days from receipt , if applicable, the terms of the Offer within which to elect to purchase proposed transaction including the Property on proposed transaction date and a copy of any written offer or other writing setting forth the precise terms and conditions of the Offer (except that if proposed transaction. Such Transfer Notice shall constitute an irrevocable offer by the Offer shall Selling Shareholder to sell all of the Offered Stock to the Company at the Offered Price and upon the same terms and conditions as the Selling Shareholder is willing to sell the Offered Stock to the proposed transferee. To the extent the consideration proposed to be in whole or in part for consideration paid by the proposed transferee consists of property other than cash, Lessee the reasonable cash equivalent of such property, and the manner of determining the same, shall have be stated in such Transfer Notice. Once given, a Transfer Notice may not be modified or amended except with the written consent of the Company. Within the ten (10) day period following the giving of the Transfer Notice (the "Offer Period"), the Company may, by a majority vote of its disinterested directors, elect, by giving written notice of such election to the Selling Shareholder, to purchase all but not less than all of the Offered Stock. If the Company waives in writing the Company's right to exercise, or if the Company fails to timely exercise any purchase option under the provisions of this subsection, then, the Selling Shareholder hereby gives and grants to the other Shareholders the right and option to pay in cash purchase (one time) the fair market value Offered Stock for the Offered Price on a pro rata basis (which right and option must be exercised and consummated within ten (10) days after receipt of such noncash considerationnotice from the Selling Shareholder). If Lessee elects to so purchase the Property, Lessee shall give to Lessor written notice thereof (“Acceptance Notice”) Company and the closing Shareholders do not elect, by notice in writing given to the Selling Shareholder within the Offer Period, to purchase all (but not less than all) of the Offered Stock to which they are entitled, then the Selling Shareholder shall be held free to dispose of all of the Offered Stock within forty-five ninety (4590) days after the date of the Acceptance Notice or such longer period end of time as is set forth the Offer Period to the original proposed transferee, at a price not lower than the Offered Price, and upon the terms stipulated in the Offer, whereupon Lessor shall convey the Property to Lessee. At the closing, Lessor shall deliver to Lessee a special warranty deed (or local equivalent) sufficient to convey to Lessee fee simple title to the Property free and clear of Transfer Notice in all easements, rights-of-way, encumbrances, liens, covenants, conditions, restrictions, obligations and liabilities, except for any such matters in effect upon the acquisition of the Property by Lessor, such matters created, suffered or consented to in writing by Lessee or arising by reason of the failure of Lessee to have observed or performed any term, covenant or agreement of this Lease to be observed or performed by Lessee, and the lien of any taxes then affecting the Propertymaterial respects; provided, however, however that if the Offer contemplates that the Property is to any such sale shall be conveyed subject to any existing financing then participation by the Property Investor pursuant to the provisions of Section 2.01. However, as a condition to the effectiveness of such transfer, said transferee shall be conveyed required to become a party to this Agreement as a Shareholder and, pursuant to Section 4.15, shall confirm such fact by executing a counterpart of this Agreement. If such Offered Stock is not so disposed of by the Selling Shareholder within such ninety (90) day period, the Selling Shareholder shall continue to hold such Stock subject to the mortgage or deed all of trust securing such financing unless Lessee elects to pay off such financing in accordance with the terms and conditions of this Agreement and may not sell the Stock without again complying with all of the applicable loan documents (provided that Lessee shall not be responsible for payment of any late charges or other charges that are not directly related to the payoff). If Lessee does not timely elect to purchase the Property, Lessor shall, subject to Section 16.03, be free to sell the Property to any other Person within twelve (12) months of Lessee’s rejection or deemed rejection without being required to comply again with the foregoing provisions of this Section 16.01, provided that, if Lessor intends to sell the Property (i) after such twelve (12) month period, or (ii) within such twelve (12) month period at a price less than ninety-five percent (95%) of the price described in the Offer, Lessor shall give Lessee written notice, setting forth the applicable purchase price and terms and conditions, and Lessee shall have twenty (20) business days to elect in writing to purchase the Property at such purchase price and on such terms and conditions. The right of first offer granted by this Section 16.01 with respect to the Property shall not survive the expiration or earlier termination of this Leasehereof.

First Offer. Provided that no material Event (a) If at any time any of Default has occurred and is continuingthe Key Stockholders wishes to sell, if Lessor assign, transfer or otherwise dispose of any or all of such Key Stockholder's Shares pursuant to the terms of a bona fide offer received from a third party, such Key Stockholder shall desire submit a written offer to sell or convey such Shares to the Property Company on terms and conditions, including price, not less favorable to a the Company than those on which such Key Stockholder proposes to sell such Shares to such third party that is (the "First Offer"). The First Offer shall disclose the identity of the proposed purchaser or transferee, the Shares proposed to be sold or transferred (the "Offered Shares"), the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the First Offer, the Company shall give notice to the Key Stockholder of its intent to purchase all or any portion of the Offered Shares on the same terms and conditions as set forth in the First Offer. If the Company does not an Affiliate elect to purchase all of Lessorthe Offered Shares, then Lessor there shall first give Lessee the be no right to purchase shares pursuant to this Section 3(a). The Company shall act upon the Property First Offer as soon as practicable after receipt of the First Offer, and in any event within fifteen (15) days after receipt thereof. In the event that the Company shall elect to purchase all or part of the Offered Shares covered by the First Offer, the Company shall communicate in writing such election to purchase to whichever of the Key Stockholders has made the First Offer, which communication shall be delivered by hand or mailed to such Key Stockholder at the address set forth on Schedule II hereto and as described in Section 7 below and shall, when taken in conjunction with the First Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Company does not purchase all of the Offered Shares offered by the Key Stockholder pursuant to and within thirty (30) days after the First Offer, the agreement to purchase the Offered Shares shall be deemed null and void. Notwithstanding the provisions of this subsection (a), the Key Stockholder proposing to sell the Offered Shares shall have the discretion to allow the Company to buy a price and portion of such Offered Shares. (b) If the Company fails to purchase all or, subject to the Key Stockholder's consent, any part of the Offered Shares, the Key Stockholder shall submit a written offer (the "Second Offer") to sell such Offered Shares (the "Remaining Shares") to the Preferred Shareholders on terms and conditions, including price, not less favorable to the Preferred Shareholders than those on which such Key Stockholder proposes to sell such Remaining Shares to the third party. The Second Offer shall also disclose the identity of the proposed purchaser or transferee, the Remaining Shares proposed to be sold or transferred, the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the Second Offer, the Preferred Shareholders shall give notice to the Key Stockholder of their intent to purchase all or any portion of the Remaining Shares on the same terms and conditions determined by Lessor and as set forth in a notice given to Lessee (the “Second Offer”). Lessee shall have twenty (20) Business Days from receipt of the Offer within which to elect to purchase the Property on the precise terms and conditions of the Offer (except that if the Offer shall be in whole or in part for consideration other than cash, Lessee Each Preferred Shareholder shall have the right to pay purchase that number of the Remaining Shares as shall be equal to the aggregate Remaining Shares multiplied by a fraction, the numerator of which is the number of shares of Common Stock of the Company then owned by such Preferred Shareholder (including any shares of Common Stock deemed to be owned hereunder on the date of the second offer, being a number of shares equal to (i) that into which the Series A-1 Convertible Preferred Stock, $.01 par value per share (the "Series A-1 Preferred Stock"), Series B-1 Convertible Preferred Stock, $.01 par value per share (the "Series B-1 Preferred Stock"), Series C Convertible Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"), Series D Convertible Preferred Stock, $.01 par value per share (the "Series D Preferred Stock"), Series E Preferred Stock, Series A-2 Convertible Preferred Stock, $.01 par value per share (the "Series A-2 Preferred Stock"), Series B-2 Convertible Preferred Stock, $.01 par value per share (the "Series B-2 Preferred Stock"), Series C-2 Convertible Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"), Series D-2 Convertible Preferred Stock, $.01 par value per share (the "Series D-2 Preferred Stock"), and Series E-2 Convertible Preferred Stock, $.01 par value per share (the "Series E-2 Preferred Stock" and together with the Series A-1 Preferred Stock, Series B-1 Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series A-2 Preferred Stock, Series B-2 Preferred Stock, Series C-2 Preferred Stock and Series D-2 Preferred Stock, the "Preferred Stock"), held by such Preferred Shareholder is convertible and (ii) the shares of Common Stock issuable upon exercise of the Warrants), and the denominator of which is the aggregate number of shares of said Common Stock then issued and outstanding and held by (and deemed to be held by) all the Preferred Shareholders. (The amount of shares each Preferred Shareholder or Qualified Transferee, as that term is defined below, is entitled to purchase under this Section 3 shall be referred to as its "Pro Rata Fraction"). Each Preferred Shareholder shall have the right to transfer its right to any Pro Rata Fraction or part thereof to any Qualified Transferee. In the event a Preferred Shareholder does not wish to purchase or to transfer its right to purchase its Pro Rata Fraction, then any Preferred Shareholders who so elect shall have the right to purchase, on a pro rata basis with any other Preferred Shareholders who so elect, any Pro Rata Fraction not purchased by a Preferred Shareholder or Qualified Transferee. If the Preferred Shareholders do not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(b). Each Preferred Shareholder shall act upon the Second Offer as soon as practicable after receipt of the Second Offer, and in cash all events within fifteen (15) days after receipt thereof. Each Preferred Shareholder shall have the fair market value right to accept the Second Offer as to all or part of the Remaining Shares offered thereby. In the event that a Preferred Shareholder shall elect to purchase all or part of the Remaining Shares covered by the Second Offer, said Preferred Shareholder shall individually communicate in writing such election to purchase to whichever of the Key Stockholders has made the Second Offer (including in such writing the number of Remaining Shares such Preferred Shareholder would like to purchase, which, subject to the pro rata reduction set forth above, may be in excess of such noncash considerationPreferred Shareholder's Pro Rata Fraction). If Lessee elects to so purchase the Property, Lessee shall give to Lessor written notice thereof (“Acceptance Notice”) and the closing which communication shall be held delivered by hand or mailed to such Key Stockholder at the address set forth on Schedule II hereto and as described in Section 7 below and shall, when taken in conjunction with the Second Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Preferred Shareholders do not purchase all of the Remaining Shares offered by the Key Stockholder pursuant to and within forty-five thirty (4530) days after the date of the Acceptance Notice or such longer period of time as is set forth in the Second Offer, whereupon Lessor shall convey the Property to Lessee. At the closing, Lessor shall deliver to Lessee a special warranty deed (or local equivalent) sufficient to convey to Lessee fee simple title to the Property free and clear of all easements, rights-of-way, encumbrances, liens, covenants, conditions, restrictions, obligations and liabilities, except for any each such matters in effect upon the acquisition of the Property by Lessor, such matters created, suffered or consented to in writing by Lessee or arising by reason of the failure of Lessee to have observed or performed any term, covenant or agreement of this Lease to be observed or performed by Lessee, and the lien of any taxes then affecting the Property; provided, however, that if the Offer contemplates that the Property is to be conveyed subject to any existing financing then the Property shall be conveyed subject to the mortgage or deed of trust securing such financing unless Lessee elects to pay off such financing in accordance with the terms of the applicable loan documents (provided that Lessee shall not be responsible for payment of any late charges or other charges that are not directly related to the payoff). If Lessee does not timely elect to purchase the PropertyRemaining Shares shall be deemed null and void, Lessor shall, subject to Section 16.03, and such Remaining Shares may be free to sell sold by such Key Stockholder at any time within ninety (90) days after the Property to any other Person within twelve (12) months expiration of Lessee’s rejection or deemed rejection without being required to comply again with the foregoing provisions of this Section 16.01, provided that, if Lessor intends to sell the Property (i) after Second Offer. Any such twelve (12) month period, or (ii) within such twelve (12) month period sale shall be at a price not less than ninety-five percent (95%) of the price described in the Offer, Lessor shall give Lessee written notice, setting forth the applicable purchase price and upon other terms and conditions, and Lessee if any, not more favorable to the purchaser than those specified in the Second Offer. Notwithstanding the provisions of this subsection (b), the Key Stockholder proposing to sell the Remaining Shares shall have twenty (20) business days the discretion to elect in writing allow the Preferred Shareholders to purchase the Property at buy a portion of such purchase price and on Remaining Shares. Any Remaining Shares not sold within such terms and conditions. The right of first offer granted by this Section 16.01 with respect 90-day period shall continue to be subject to the Property shall not survive the expiration or earlier termination requirements of a prior offer and re-sale pursuant to this Leasesection.