Common use of RIGHTS OF Clause in Contracts

RIGHTS OF. First Refusal For Stock Held By Management Stockholders or Investor Stockholders (other than the Warburg Group) — Secondary Right Of First Refusal. (a) If, pursuant to Section 3.4, the Company elects to purchase less than all the Offered Stock (or elects to purchase none of the Offered Stock), the Stockholders other than the Offeror Stockholder that are “accredited investors” as defined in Rule 501(a) under the Securities Act (the “Other Stockholders”) shall have the option from the 11th to the 30th day following the First Refusal Notice Date to accept not less than all of the Offered Stock (other than the portion which the Company has elected to purchase) in accordance with the provisions of the Notice of Right of First Refusal. The Other Stockholders may, by agreement, allocate among themselves the right to acquire such part of the Offered Stock. In the absence of such an agreement among the Other Stockholders, each Other Stockholder will be entitled to give written notice to the Offeror Stockholder, to the Company and to the remaining Other Stockholders, from the eleventh day to the twentieth day following the First Refusal Notice Date, of such Other Stockholder’s election (“Election Notice”) to acquire all or any part of its Proportionate Percentage (calculated solely with respect to the Other Stockholders) of the Offered Stock that is not being acquired by the Company or the Other Stockholders including a statement of the maximum number of shares of Offered Stock that such Other Stockholder is willing to purchase. (b) Any Offered Stock not subscribed for pursuant to Section 3.5(a) as a result of all the Other Stockholders not electing to purchase their Proportionate Percentage shall be deemed to be re-offered to and accepted by the Other Stockholders exercising their rights to purchase more than their Proportionate Percentage. Such Offered Stock shall be allocated to such Other Stockholders in an amount equal to the lesser of (A) the maximum amount specified in their respective Election Notices and (B) an amount equal to their respective Proportionate Percentages (calculated solely with respect to such Other Stockholders) with respect to such deemed offer. Such deemed offer and acceptance procedures described in the immediately preceding sentence shall be deemed to be repeated, to the extent required, until either (x) all of the remaining Offered Stock is accepted by the Other Stockholders or (y) the maximum number or amount of Offered Stock that such Other Stockholders have indicated they are willing to purchase has been deemed accepted. If all the Offered Stock is subscribed for, then the Company shall notify each Other Stockholder within five days following the expiration of the 30-day period described in Section 3.5(a) of the number or amount of Offered Stock which such Stockholder has subscribed to purchase and shall set a reasonable place and time for the closing Table of Contents of the purchase and sale of the Offered Stock, which shall be not less than 45 days nor more than 90 days after the First Refusal Notice Date. The purchase price and terms for the Offered Stock purchased by the Other Stockholders shall be the price and terms set forth in the applicable Third Party Offer. Upon delivery of the purchase price, the Offeror Stockholders shall have no further rights as holders of Offered Shares and shall immediately cause all certificate(s) evidencing Offered Shares to be surrendered for transfer to the Company or the purchasing Stockholders, as the case may be. (c) If the Company and the Other Stockholders do not subscribe to purchase all of the Offered Stock, then the Company and the Other Stockholders shall not be entitled to purchase such Offered Stock and all, but not less than all, of such Offered Stock may be sold by the Offeror Stockholder at any time within 90 days after the date of the Third Party Offer, subject to the provisions of Section 3.1 hereof. Any such sale shall not be at less than the price or upon terms and conditions more favorable, individually or in the aggregate, to the purchaser than those specified in the Third Party Offer. If such Offered Stock is not so transferred within such 90-day period, such Capital Stock may not be sold by the Offeror Stockholder without complying again in full with the provisions of this Agreement.

RIGHTS OF. First Refusal For Stock Held By Management Stockholders CERTIFICATEHOLDERS TO DIRECT TRUSTEE AND TO WAIVE EVENTS OF TERMINATION. Certificateholders with aggregate Fractional Interests representing 51% or Investor Stockholders (other than the Warburg Group) — Secondary Right Of First Refusal. (a) If, pursuant to Section 3.4, the Company elects to purchase less than all the Offered Stock (or elects to purchase none more of the Offered Stock), Trust (with the Stockholders other than consent of the Offeror Stockholder that are “accredited investors” as defined in Rule 501(a) under the Securities Act (the “Other Stockholders”Swap Provider unless a Swap Provider Default has occurred and is continuing) shall have the option from right to direct the 11th time, method and place of conducting any proceeding for any remedy available to the 30th day following Trustee (or the First Refusal Notice Date Servicer as the Trustee's attorney-in- fact pursuant to accept not less than all of Section 4.3), or exercising any trust or power conferred on the Offered Stock Trustee (other than or the portion which Servicer as such attorney-in-fact); provided, however, that, subject to Section 10.1, the Company has elected to purchaseTrustee (or the Servicer as such attorney-in-fact) in accordance with the provisions of the Notice of Right of First Refusal. The Other Stockholders may, by agreement, allocate among themselves shall have the right to acquire decline to follow any such part direction if the Trustee (or the Servicer as such attorney-in-fact), being advised by counsel, determines that the action so directed may not lawfully be taken, or if the Trustee (or the Servicer as such attorney-in-fact) in good faith determines that the action so directed would be illegal or would be unduly prejudicial to the rights of Certificateholders not parties to such direction, or if the Trustee (but not the Servicer) in good faith determines that the action would involve it in personal liability and provided further that nothing in this Agreement shall impair the right of the Offered Stock. In Trustee (or the absence of Servicer as such an agreement among the Other Stockholders, each Other Stockholder will be entitled to give written notice to the Offeror Stockholder, to the Company and to the remaining Other Stockholders, from the eleventh day to the twentieth day following the First Refusal Notice Date, of such Other Stockholder’s election (“Election Notice”attorney-in-fact) to acquire all take any action deemed proper by the Trustee and which is not inconsistent with such direction by the Certificateholders. Certificateholders with aggregate Fractional Interests representing 51% or any part of its Proportionate Percentage (calculated solely with respect to the Other Stockholders) more of the Offered Stock that is not being acquired by Trust (with the Company or the Other Stockholders including a statement consent of the maximum number Swap Provider unless a Swap Provider Default has occurred and is continuing ) may on behalf of shares Certificateholders waive any past Event of Offered Stock that Servicing Termination or Swap Provider Default hereunder and its consequences; but no such Other Stockholder is willing waiver shall extend to purchaseany subsequent or other Event of Servicing Termination or Swap Provider Default or impair any right consequent thereof. (b) Any Offered Stock not subscribed for pursuant to Section 3.5(a) as a result of all the Other Stockholders not electing to purchase their Proportionate Percentage shall be deemed to be re-offered to and accepted by the Other Stockholders exercising their rights to purchase more than their Proportionate Percentage. Such Offered Stock shall be allocated to such Other Stockholders in an amount equal to the lesser of (A) the maximum amount specified in their respective Election Notices and (B) an amount equal to their respective Proportionate Percentages (calculated solely with respect to such Other Stockholders) with respect to such deemed offer. Such deemed offer and acceptance procedures described in the immediately preceding sentence shall be deemed to be repeated, to the extent required, until either (x) all of the remaining Offered Stock is accepted by the Other Stockholders or (y) the maximum number or amount of Offered Stock that such Other Stockholders have indicated they are willing to purchase has been deemed accepted. If all the Offered Stock is subscribed for, then the Company shall notify each Other Stockholder within five days following the expiration of the 30-day period described in Section 3.5(a) of the number or amount of Offered Stock which such Stockholder has subscribed to purchase and shall set a reasonable place and time for the closing Table of Contents of the purchase and sale of the Offered Stock, which shall be not less than 45 days nor more than 90 days after the First Refusal Notice Date. The purchase price and terms for the Offered Stock purchased by the Other Stockholders shall be the price and terms set forth in the applicable Third Party Offer. Upon delivery of the purchase price, the Offeror Stockholders shall have no further rights as holders of Offered Shares and shall immediately cause all certificate(s) evidencing Offered Shares to be surrendered for transfer to the Company or the purchasing Stockholders, as the case may be. (c) If the Company and the Other Stockholders do not subscribe to purchase all of the Offered Stock, then the Company and the Other Stockholders shall not be entitled to purchase such Offered Stock and all, but not less than all, of such Offered Stock may be sold by the Offeror Stockholder at any time within 90 days after the date of the Third Party Offer, subject to the provisions of Section 3.1 hereof. Any such sale shall not be at less than the price or upon terms and conditions more favorable, individually or in the aggregate, to the purchaser than those specified in the Third Party Offer. If such Offered Stock is not so transferred within such 90-day period, such Capital Stock may not be sold by the Offeror Stockholder without complying again in full with the provisions of this Agreement.