Common use of Offer Procedure Clause in Contracts

Offer Procedure. 34.2.1 If at any time during the Term of this Lease (as the same may be extended), Landlord desires to sell, convey or otherwise transfer the entirety of the Project, or one hundred percent (100%) of the direct or indirect ownership interests in Landlord, to an unaffiliated third party buyer (a “Project Transfer”), and on the condition that Tenant is still the original Tenant under this Lease (or a Permitted Assignee) and occupies at least eighty percent (80%) of the original Premises, then Landlord shall first give written notice (the “Purchase Offer Notice”) to Tenant of such proposed Project Transfer. The Purchase Offer Notice shall state (a) the purchase price, (b) the sale structure Landlord will require, taking into account tax and other considerations which may, for example, require a sale of REIT shares but in any event shall be the same structure Landlord will offer to other buyers in the event Tenant does not deliver an Acceptance Notice pursuant to Section 34.2.2 below, (c) the amount of any e▇▇▇▇▇▇ money deposit (which shall not be greater than five percent (5%) of the purchase price), (d) the length of any due diligence period (which shall not be less than thirty (30) days) pursuant to which Tenant may terminate the Purchase Agreement (as defined below) for any reason in its sole and absolute discretion and receive its e▇▇▇▇▇▇ money deposit, (e) the date of closing (which shall not be earlier than fifteen (15) days after waiver or expiration of the due diligence period), (f) the place for close of escrow, (g) the allocation of the expenses of closing between Landlord and Tenant, (h) the responsibilities for examination of the title to the Project being offered in connection with the Project Transfer and for issuance of title insurance to Tenant, (i) the responsibility for delivery of a survey, if any, and (j) other material terms and conditions of the proposed Project Transfer. 34.2.2 Upon receipt of the Purchase Offer Notice, Tenant shall have the right, for a period of ten (10) business days (the “Acceptance Period”) to exercise the Right of First Offer to Purchase by giving Landlord written notice (“Acceptance Notice”) that Tenant desires to purchase the Project (or if applicable one hundred percent (100%) of the direct or indirect ownership interests in Landlord being offered) upon the terms and conditions contained in the Purchase Offer Notice. Tenant shall deposit with Landlord or Landlord’s escrow officer designated in the Purchase Offer Notice, within one (1) business day of delivery of the Acceptance Notice, a refundable e▇▇▇▇▇▇ money deposit equal to the amount of any e▇▇▇▇▇▇ money deposit described in the Purchase Offer Notice (the “Initial Deposit”). Any qualified or conditional acceptance by Tenant of the offer set forth in the Purchase Offer Notice shall be deemed a rejection of the offer. If Tenant fails to timely exercise the Right of First Offer to Purchase, or fails to timely deposit the Initial Deposit as required herein, then, at Landlord’s sole option, T▇▇▇▇▇’s exercise of the Right of First Offer to Purchase, and this Article 34, shall be null and void. 34.2.3 Tenant shall have no Right of First Offer to Purchase and Landlord need not provide Tenant with a Purchase Offer Notice, if an Event of Default is continuing by Tenant under this Lease at the time a Purchase Offer Notice would otherwise be required to be sent under this Article 34.

Offer Procedure. 34.2.1 (a) If at a Party (in this Section, the “Offeror”) is required by Section 4.1 or 4.2 above to offer an opportunity to the other Party (in this Section, the “Offeree”) the Offeror shall, as soon as practicable, and in any time during event not less than [ * ] prior to the Term of this Lease date on which the Offeree would be required to fund its investment, provide written notice to the Offeree (as an “Investment Notice”) which shall describe the same may be extended)nature, Landlord desires to sell, convey or otherwise transfer the entirety form and amount of the Projectoffered investment in sufficient detail to enable the Offeree to reasonably determine whether it wishes to participate in the proposed investment. (b) The Offeree may, or one hundred percent (100%) of the direct or indirect ownership interests in Landlord, to an unaffiliated third party buyer (a “Project Transfer”), and on the condition that Tenant is still the original Tenant under this Lease (or a Permitted Assignee) and occupies at least eighty percent (80%) of the original Premises, then Landlord shall first give by written notice (the “Purchase Offer Notice”) to Tenant of such proposed Project Transfer. The Purchase Offer Notice shall state (a) the purchase price, (b) the sale structure Landlord will require, taking into account tax and other considerations which may, for example, require a sale of REIT shares but in any event shall be the same structure Landlord will offer to other buyers in the event Tenant does not deliver an Acceptance Notice pursuant to Section 34.2.2 below, (c) the amount of any e▇▇▇▇▇▇ money deposit (which shall not be greater than five percent (5%) of the purchase price), (d) the length of any due diligence period (which shall not be less than thirty (30) days) pursuant to which Tenant may terminate the Purchase Agreement (as defined below) for any reason in its sole and absolute discretion and receive its e▇▇▇▇▇▇ money deposit, (e) the date of closing (which shall not be earlier than fifteen (15) days after waiver or expiration of the due diligence period), (f) the place for close of escrow, (g) the allocation of the expenses of closing between Landlord and Tenant, (h) the responsibilities for examination of the title to the Project being offered in connection with the Project Transfer and for issuance of title insurance to Tenant, (i) the responsibility for delivery of a survey, if any, and (j) other material terms and conditions of the proposed Project Transfer. 34.2.2 Upon receipt of the Purchase Offer Notice, Tenant shall have the right, for a period of ten (10) business days (the “Acceptance Period”) to exercise the Right of First Offer to Purchase by giving Landlord written notice (“Acceptance Notice”) to the Offeror within [ * ] after its receipt of an Investment Notice, elect to participate in such co-investment opportunity, up to the dollar amount and/or equity specified in such Acceptance Notice. (c) If the Offeree has determined that Tenant desires it does not wish to purchase the Project (or if applicable one hundred percent (100%) of the direct or indirect ownership interests in Landlord being offered) upon the terms and conditions contained participate in the Purchase Offer Notice. Tenant shall deposit with Landlord or Landlord’s escrow officer designated in the Purchase Offer Notice, within one (1) business day of delivery of the Acceptance Notice, a refundable e▇▇▇▇▇▇ money deposit equal to the amount of any e▇▇▇▇▇▇ money deposit investment described in the Purchase Offer Notice Investment Notice, it shall make reasonable efforts to so advise the Offeror as soon as practicable by written notice (the a “Initial DepositDeclination Notice”). Any qualified or conditional acceptance by Tenant , so as to permit the Offeror to proceed with its planning of the offer set forth in the Purchase Offer Notice shall be deemed a rejection of the offerproposed Qualified Project. If Tenant fails to timely exercise the Right of First Offer to PurchaseOfferee delivers a Declination Notice, or fails to timely deposit deliver an Acceptance Notice within the Initial Deposit as required hereinperiod set forth in subsection (b) above, thenthe Offeree shall, at Landlord’s sole optionsubject to subsection (d), T▇▇▇▇▇’s exercise be deemed to have conclusively declined to participate in the Qualified Project. (d) Notwithstanding that the Offeree has declined to participate in a Qualified Project, if (i) the nature or scope of the Right Qualified Project, or the financial terms for investing therein, change substantially from those described in the Investment Notice; (ii) the Commercial Agreement pertaining to such Qualified Project is not executed within [ * ] after the date of First Offer to Purchasethe Investment Notice; or (iii) the construction of the contemplated plant is not started within [ * ] after the execution of the Commercial Agreement therefor; the Offeror shall deliver a further Investment Notice, and this Article 34, the provisions of subsections (b) and (c) above shall be null and voidapply to the Qualified Project as modified. 34.2.3 Tenant shall have no Right of First Offer to Purchase and Landlord need not provide Tenant with a Purchase Offer Notice, if an Event of Default is continuing by Tenant under this Lease at the time a Purchase Offer Notice would otherwise be required to be sent under this Article 34.