Common use of Right of First Option Clause in Contracts

Right of First Option. Borrower agrees that, during the period from and after the date hereof and ending on the earlier of (i) the date which is three (3) months after the date of prepayment in full Outstanding Loan Amount together with all Interest thereon and (ii) the occurrence of the Term Loan Commitment Termination Date pursuant to clause (iii) of the definition thereof, it will not, and will not permit either Parent or any of Parents’ respective Subsidiaries to, issue or sell to, or borrow from, an unaffiliated party (“Third-Party Lender”), any funded Indebtedness under which advances are made to Borrower, such Parent or Subsidiary, as applicable, based upon residual or subordinated interests in Financing SPCs or Warehouse Facilities, other than Excluded Indebtedness (as defined below) (“Additional Residual Indebtedness”), unless Borrower, such Parent or Subsidiary, as applicable, first submits a written notice (the “Additional Residual Indebtedness Notice”) to Lender identifying the date of such proposed issuance, sale or funding and the aggregate principal amount proposed to be issued, sold or funded, and offering Lender the opportunity to purchase or fund all, but not less than all, of the aggregate principal amount of such Additional Residual Indebtedness on terms and conditions, including pricing terms, not less favorable to Lender than those on which Borrower, such Parent or Subsidiary, as applicable, proposes to issue or sell to, or borrow from, any Third-Party Lender such Additional Residual Indebtedness. If such Additional Residual Indebtedness is sold to, or funded by, other Third-Party Lenders on varying terms, the Lender’s terms and conditions shall be the same as those most favorable to the prospective Third-Party Lenders. The offer by Borrower, such Parent or Subsidiary, as applicable, to Lender pursuant to this Section to purchase or fund the Additional Residual Indebtedness shall remain open and irrevocable for a period of 15 days following receipt by Lender of the Additional Residual Indebtedness Notice. Lender shall have the right to purchase or fund all, but not less than all, of the aggregate principal amount of such Additional Residual Indebtedness by giving written notice of its intent to do so (the “Additional Residual Indebtedness Acceptance”) to such Borrower, such Parent or Subsidiary, as applicable, within 15 days after Lender’s receipt of the Additional Residual Indebtedness Notice. Each Additional Residual Indebtedness Acceptance shall constitute a valid, legally binding and enforceable agreement for the purchase of, or funding by, Lender of the Additional Residual Indebtedness so elected to be purchased or funded. As used herein, “Excluded Indebtedness” shall mean: (i) Indebtedness outstanding from time to time under one or more Securitization Transactions or Warehouse Facilities (including swingline or other tranches of Indebtedness within a Warehouse Facility); (ii) any Indebtedness under those certain 12.625% Senior Secured Notes due 2017 issued by Parent and comparable note issuances secured in part by residual cash flows; and (ii) any Indebtedness and secured by (incurred to acquire) inventory, real estate or equipment which is also secured in part by residual cash flows.

Right of First Option. Borrower agrees that, during (a) During the period from and after beginning upon the date hereof upon which the Lease is fully executed, and ending on the earlier of (i) the date which is three (3) months after the date of prepayment twenty-fourth calendar month anniversary thereafter, if this Lease shall be in full Outstanding Loan Amount together with all Interest thereon force and effect, Tenant shall have the right, upon written notice to Landlord (ii) the occurrence of the Term Loan Commitment Termination Date pursuant to clause (iii) of the definition thereof, it will not, and will not permit either Parent or any of Parents’ respective Subsidiaries to, issue or sell to, or borrow from, an unaffiliated party (“Third-Party Lender”"Option Notice"), any funded Indebtedness under which advances are made to Borrower, such Parent lease all or Subsidiary, as applicable, based upon residual or subordinated interests in Financing SPCs or Warehouse Facilities, other than Excluded Indebtedness a portion (as defined below) (“Additional Residual Indebtedness”), unless Borrower, such Parent or Subsidiary, as applicable, first submits a written notice (the “Additional Residual Indebtedness Notice”) to Lender identifying the date of such proposed issuance, sale or funding and the aggregate principal amount proposed to be issued, sold or funded, and offering Lender the opportunity to purchase or fund all, but not less than all11,000 rentable square feet) of any available space (defined as space, which, as of the aggregate principal amount date of such Additional Residual Indebtedness the date of the Option Notice, is not either under lease or subject to an executed letter of intent to another tenant) on terms and conditions, including pricing terms, not less favorable to Lender than those on which Borrower, such Parent or Subsidiary, as applicable, proposes to issue or sell to, or borrow from, any Third-Party Lender such Additional Residual Indebtednessthe second floor of the Building (the "Option Space"). If Tenant shall require greater than sixty-seven percent (67%) of the then remaining available space on the second floor, Tenant shall be obligated to take the entire then available space on the second floor. The lease of any Option Space by Tenant pursuant to this Right of First Option shall be upon such Additional Residual Indebtedness is sold to, or funded by, other Third-Party Lenders on varying terms, the Lender’s terms and conditions shall be contained in the same Lease, including, without limitation, the payment of the then current Base Rent per square foot, together with any Additional Rent due as those most favorable recalculated to include the prospective Third-Party Lenders. The offer by BorrowerOffered Space, such Parent or Subsidiarydelivery of an additional Security Deposit, as applicableset forth in Article 23(e) above, to Lender pursuant to this Section to purchase or fund and the Additional Residual Indebtedness shall remain open and irrevocable for a period of 15 days following receipt by Lender expiration of the Additional Residual Indebtedness Notice. Lender shall have the right to purchase or fund allTerm, but not less than all, of the aggregate principal amount of such Additional Residual Indebtedness by giving written notice of its intent to do so (the “Additional Residual Indebtedness Acceptance”) to such Borrower, such Parent or Subsidiary, as applicable, within 15 days after Lender’s receipt of the Additional Residual Indebtedness Notice. Each Additional Residual Indebtedness Acceptance shall constitute a valid, legally binding and enforceable agreement for the purchase of, or funding by, Lender of the Additional Residual Indebtedness so elected to be purchased or funded. As used herein, “Excluded Indebtedness” shall meanexcept: (i) Indebtedness outstanding from that the per square foot Tenant Work Allowance for the Option Space shall be obtained by multiplying the per square foot Tenant Work Allowance by a fraction, the numerator of which is the number of months remaining in the initial term of this Lease at the time to time under one or more Securitization Transactions or Warehouse Facilities (including swingline or other tranches that Base Rent will commence on the Option Space and the denominator of Indebtedness within a Warehouse Facility)which is the total number of months in the initial term; (ii) any Indebtedness under those certain 12.625% Senior Secured Notes due 2017 issued unused tenant allowance applicable to the Option Space shall not be available for use by Parent Tenant as a rent credit, and comparable note issuances secured shall be automatically forfeited as to any amount of such allowance not properly requested by Tenant, in part by residual cash flowsaccordance with the terms and conditions set forth in Exhibit C of this Lease; and (iiiii) any Indebtedness and secured by (incurred to acquire) inventory, real estate or equipment except that the rent commencement for the Offered Space shall be the date which is also secured the first day following the eighth month anniversary of the date Landlord and Tenant execute and deliver a mutually acceptable amendment to the Lease incorporating therein the lease of the Option Space. Promptly after Tenant exercises this option (but in no event later than thirty (30) days after the Option Notice), the parties shall enter into a supplemental agreement to this Lease incorporating the Option Space as part by residual cash flowsof the Premises.

Right of First Option. Borrower agrees thatThe Company has entered into that Right of First Offer Agreement of even date herewith, during with Xxxxxxx-CCP, LLC (the period from and after “ROFO Agreement”) with respect to certain property described in the date hereof and ending on ROFO Agreement (the earlier “ROFO Property”). Upon receipt by the Company of a ROFO Notice (i) as defined in the date which is three (3) months after ROFO Agreement), the date Company shall promptly provide a copy of prepayment in full Outstanding Loan Amount such ROFO Notice to each Member, together with all Interest thereon written information received by the Company with respect to such ROFO Notice. The Company shall determine whether it shall elect to exercise its rights under the ROFO Agreement as a Major Decision in accordance with Section 6.2(a)(xxiv) no later than seven (7) Business Days after its receipt of such ROFO Notice (the “Company Election Date”) and provide each Member written notice of such determination on such date. In the event that the Company elects not to exercise its rights under the ROFO (iior does not make a determination as to whether to exercise such rights) on or prior to the occurrence Company Election Date due to a failure of either Member to approve the Term Loan Commitment Termination Date pursuant to clause exercise, then if a Member did vote in favor of exercising such rights (iii) of the definition thereof, it will not, and will not permit either Parent or any of Parents’ respective Subsidiaries to, issue or sell to, or borrow from, an unaffiliated party (a “Third-Party LenderROFO Approving Member”), any funded Indebtedness under which advances are made to Borrowerthen such ROFO Approving Member may, such Parent or Subsidiary, as applicable, based upon residual or subordinated interests in Financing SPCs or Warehouse Facilities, other than Excluded Indebtedness (as defined below) (“Additional Residual Indebtedness”), unless Borrower, such Parent or Subsidiary, as applicable, first submits a written notice (the “Additional Residual Indebtedness NoticeROFO Election”) to Lender identifying the other Member, make an election to purchase the ROFO rights and receive an assignment of the rights under ROFO Agreement with respect to the portion of the ROFO Property then being offered under the ROFO Notice from the Company in exchange for an amount equal to (i) the total of all payments made by the Company under the ROFO Agreement through the date of such proposed issuance, sale or funding and the aggregate principal ROFO Election prorated appropriately for the amount proposed to be issued, sold or funded, and offering Lender the opportunity to purchase or fund all, but not less than all, of the aggregate principal amount of such Additional Residual Indebtedness on terms and conditionsROFO Property so offered in the ROFO Notice, including pricing terms, not less favorable to Lender than those on which Borrower, such Parent or Subsidiary, as applicable, proposes to issue or sell to, or borrow from, any Third-Party Lender such Additional Residual Indebtedness. If such Additional Residual Indebtedness is sold to, or funded by, other Third-Party Lenders on varying terms, the Lender’s terms and conditions shall be the same as those most favorable to the prospective Third-Party Lenders. The offer by Borrower, such Parent or Subsidiary, as applicable, to Lender pursuant to this Section to purchase or fund the Additional Residual Indebtedness shall remain open and irrevocable for a period of 15 days following receipt by Lender of the Additional Residual Indebtedness Notice. Lender shall have the right to purchase or fund all, but not less than all, of the aggregate principal amount of such Additional Residual Indebtedness by giving written notice of its intent to do so (the “Additional Residual Indebtedness Acceptance”) to such Borrower, such Parent or Subsidiary, as applicable, within 15 days after Lender’s receipt of the Additional Residual Indebtedness Notice. Each Additional Residual Indebtedness Acceptance shall constitute a valid, legally binding and enforceable agreement for the purchase of, or funding by, Lender of the Additional Residual Indebtedness so elected to be purchased or funded. As used herein, “Excluded Indebtedness” shall mean: (i) Indebtedness outstanding from time to time under one or more Securitization Transactions or Warehouse Facilities (including swingline or other tranches of Indebtedness within a Warehouse Facility); plus (ii) any Indebtedness due diligence (including, without limitation, filing fees and consultants fees and expenses) and legal expenses incurred by the Company, in respect of the portion of the ROFO Property so offered in the ROFO Notice or the exercise of the rights under those certain 12.625% Senior Secured Notes the ROFO Agreement with respect to such ROFO Property, plus (iii) any amounts which would be due 2017 issued by Parent and comparable note issuances secured the Company under the ROFO Agreement attributable to such ROFO Property offered in part by residual cash flows; and the ROFO Notice prior to the assignment from the Company to the ROFO Approving Member (the amounts referenced in (i), (ii) any Indebtedness and secured (iii) being hereafter collectively referred to as the “ROFO Purchase Price”). Upon receipt of a copy of the ROFO Election, the Company shall notify the ROFO Approving Member making the election of the ROFO Purchase Price after which the ROFO Approving Member making the timely election shall tender payment of the ROFO Purchase Price in exchange for the assignment of the rights necessary to purchase the portion of ROFO Property offered pursuant to the ROFO Notice under the ROFO Agreement, which assignment shall be made without representation or warranty by the Company (incurred other than having made no prior assignment of such rights). Each of CNL and Woodfield acknowledge that the right to acquire) inventory, real estate exercise the rights under the ROFO Agreement is subject to certain conditions and that the rights under the ROFO may not be available to the Company or equipment which is also secured in part by residual cash flowseither Member.