First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant. (b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above.
Appears in 2 contracts
Samples: Lease Agreement, Lease (Complete Genomics Inc)
First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable)Lease, Landlord receives and wishes to accept a bona fide fide, written offer from a person or entity other than Tenant (an the “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights”) to lease all purchase the Site or any portion either or both of the First Refusal Premises Buildings, and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods)Lease, then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”)Tenant, specifying the material terms on which the Offeror proposes to lease the First Refusal Premises purchase such building or applicable specified portion thereof (the “Offered SpaceProperty”), and shall offer to Tenant the opportunity to lease purchase the Offered Space Property on the terms specified in the First Refusal NoticeLandlord’s notice, as modified by Section 7.3 (if applicable). For purposes of this Section 1.4(b)7.2, an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet intent or other writing signed by the Offeror and specifies the material terms of the such proposed leasepurchase. Tenant shall have five twenty (520) business days after the date of giving of the First Refusal Notice such notice by Landlord in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space Property shall be leased sold to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease Landlord’s notice, as modified by Section 7.3 hereof (except to the extent inconsistent with the terms set forth in the First Refusal Noticeif applicable), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written an agreement incorporating and implementing containing the terms of TenantLandlord’s leasing of said notice and such other reasonable and customary terms as the Offered Space in accordance with this subparagraph (b)parties shall agree. If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification)time, Landlord shall thereafter have the right to lease sell the Offered Space Property to the Offeror or to any other third partyOfferor, at any time within one hundred eighty (180) days after the expiration of Tenant’s failure to accept Landlord’s offer under the First Refusal Noticeoffer, at a minimum rental price and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the price and other terms set forth of the original offer specified in the First Refusal NoticeLandlord’s said notice. If Tenant does not accept Landlord’s offer and Landlord does not lease sell the Offered Space Property to the Offeror or another third party during the within one hundred eighty (180-day period described above) days, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right First Refusal Right shall reattach to the Offered Space on all of the same terms set forth aboveProperty.
Appears in 2 contracts
Samples: Sublease (Five Prime Therapeutics Inc), Sublease (Five Prime Therapeutics Inc)
First Refusal Right. At least 30 days prior to making any Transfer of any Stockholder Shares (aother than pursuant to a Sale of the Company or a Public Offering), the transferring Stockholder (the “Transferring Stockholder”) The First Refusal Premises are presently leased shall deliver a written notice (an “Offer Notice”) to another tenant, Omnicell, Inc. the Company and to the holders of the Series B Preferred Stock (the “OmnicellOfferees”). The Offer Notice shall disclose in reasonable detail the proposed type, under a lease presently scheduled class or series, and number of Stockholder Shares to expire in August 2011be transferred, the proposed terms and conditions of the Transfer and the identity, background and ownership (if applicable) of the prospective transferee(s), and the Offer Notice shall constitute an irrevocable binding offer to sell the Stockholder Shares to the Offerees on such terms and conditions. Landlord shall not lease Each Offeree may elect to purchase all or any portion of the First Refusal Premises Stockholder Shares specified in the Offer Notice at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that price and on the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) terms specified therein by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give delivering written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except election to the extent inconsistent with the terms set forth Transferring Stockholder as soon as practical, but in the First Refusal Notice), and the parties shall promptly (and in all events any event within twenty (20) 20 days after delivery of Tenant’s acceptance) execute a lease amendment the Offer Notice. If more than one Offeree has elected to purchase the Stockholder Shares specified in the Offer Notice, the number of Stockholder Shares subject to each such agreement shall be proportionate to such Offerees’ relative Pro Rata Share (but in no event will an Offeree be obligated to purchase more than the number of Stockholder Shares specified in its election notice), or on such other written agreement incorporating and implementing basis as such Offerees shall agree. If any one or more Offerees have elected to purchase any Stockholder Shares specified in the terms Offer Notice, the sale of Tenant’s leasing such Stockholder Shares shall be consummated as soon as practical after the delivery of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space election notice(s) to the Offeror or to Transferring Stockholder, but in any other third party, at any time event within one hundred eighty (180) 45 days after the expiration of Landlord’s offer under the First Refusal Election Period, subject to any required regulatory approvals. To the extent that the Offerees have not elected to purchase all of the Stockholder Shares being offered, the Transferring Stockholder may, within 90 days after the expiration of the Election Period and subject to the provisions of Section 4(c) below, transfer such Stockholder Shares to the Person or group of Persons identified in the Offer Notice, at a minimum rental price no less than the price per share specified in the Offer Notice and on other terms and conditions not materially no more favorable to the lessee transferees thereof than the minimum rental and other terms offered to Tenant the Offerees in the First Refusal Offer Notice. If, in the course of negotiations with the Offeror or another third party during the 180Any Stockholder Shares not transferred within such 90-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable shall be reoffered to the Offeror Offerees under this Section 4(b) prior to any subsequent Transfer. The purchase price specified in any Offer Notice shall be payable solely in cash at the closing of the transaction or in installments over time, and no Stockholder Shares may be subject to a pledge. Each Stockholder’s “Pro Rata Share” shall be based upon such Stockholder’s proportionate ownership of all shares of Series B Preferred Stock owned by Stockholders other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth aboveTransferring Stockholder.
Appears in 2 contracts
Samples: Stockholders Agreement (ACA Capital Holdings Inc), Stockholders Agreement (Stephens Investments Holdings LLC)
First Refusal Right. (a) The First Refusal Premises are presently leased If any Holder desires to another tenant, Omnicell, Inc. (“Omnicell”Transfer any Executive Securities other than in an Exempt Transaction or a transaction pursuant to Section 6(c), under such Holder (the "Transferring Holder") shall deliver a lease presently scheduled written notice (the "Offer Notice") to expire the Company and CHS. The Offer Notice shall disclose in August 2011reasonable detail the identity of the proposed transferee(s) (including, without limitation, all parties holding controlling interests in such proposed transferee), the proposed number, amount and type of Executive Securities to be transferred and the proposed terms and conditions of the Transfer and any other material information reasonably requested by the Board or CHS and shall include a true and correct copy of the written offer to purchase Executive Securities received by him. Landlord The delivery by the Transferring Holder of the Offer Notice shall not lease create the following two (2) options:
(i) First, the Board, acting in good faith, may elect to cause the Company to purchase all or any portion of the First Refusal Premises Executive Securities specified in the Offer Notice at any time during the term price and on the terms specified therein by delivering written notice of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate such election to the rights Transferring Holder as soon as practical, but in any event within thirty (30) days following the delivery of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time the Offer Notice (the “Omnicell Lease”"Company Offer Period"), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(bii) IfIf the Company has not elected to purchase all of the Executive Securities within the Company Offer Period, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes then CHS may elect to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease purchase all or any portion of the First Refusal Premises Executive Securities not elected to be purchased by the Company at the price and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Offer Notice by delivering written notice of such election to the Transferring Holder as soon as practical, but in any event within sixty (60) days following the delivery of the Offer Notice. For purposes If the Company and/or CHS have elected to purchase all or any of this Section 1.4(b)the Executive Securities offered by the Transferring Holder, an offer the Transfer of such Executive Securities to the Company or CHS, as the case may be, shall be considered bona fide if it is contained consummated as soon as practical after the delivery of the election notices, but in a letter any event within thirty (30) days following the expiration of intentthe Election Period. Subject to Section 5 hereof, terms sheet or other writing signed the Company and/or CHS shall pay for the Executive Securities offered by the Offeror and specifies the material terms Transferring Holder by delivery of the proposed leasea cashier's check or wire transfer of immediately available funds. Tenant shall have five (5) business days after the date The purchasers of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth Executive Securities offered in the First Refusal Offer Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party hereunder shall be entitled to invoke its own lack of good faithreceive customary representations and warranties as to ownership, diligent effortstitle, if applicableauthority to sell and the like from the Holder regarding such sale, to require the Holder's signature to be guaranteed and to receive such other evidence, including applicable inheritance and estate tax waivers, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have may reasonably be necessary to effect the right to lease purchase of the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms Executive Securities offered to Tenant in the First Refusal Offer Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above.
Appears in 2 contracts
Samples: Executive Securities Agreement (Houston Wire & Cable CO), Executive Securities Agreement (Houston Wire & Cable CO)
First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable)the respective Building Leases, Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell RightsTenant itself) to lease all purchase one or more Buildings covered by such respective Building Leases, and if Tenant’s rights under this Section have not become unexercisable or ineffective or expired for any portion of the First Refusal Premises and if Tenant is not then reasons specified in default under the introductory paragraph of this Lease (beyond any applicable notice and cure periods)Section, then Landlord shall give written notice first provide a complete copy of such the bona fide written offer to Tenant (the a “First Refusal Notice”), specifying which offer shall contain all of the material terms on which the Offeror proposes to lease purchase the First Refusal Premises or applicable portion thereof Building(s) (the “Offered SpaceBuilding(s)”), and Landlord shall offer to Tenant the opportunity to lease purchase the Offered Space Building(s) on the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five twenty (520) business days after the date of giving Tenant’s receipt of the First Refusal Notice in which to accept such offer by written notice to Landlord, which notice shall be accompanied by any “xxxxxxx money” deposit or similar deposit required under the terms of the First Refusal Notice. In the event Landlord receives and wishes to accept any material revisions to the bona fide offer within such twenty (20) business day period, Landlord shall provide a complete copy of the revised bona fide written offer to Tenant, which offer shall contain all of the material terms on which the Offeror proposes to purchase the applicable Building(s), and the twenty (20) business day period described above shall be extended by an additional five (5) business days for Tenant to consider such revised offer.
(i) Upon such acceptance by Tenant, Tenant shall be obligated to purchase and Landlord shall be obligated to sell the Offered Space shall be leased to Tenant Building(s) on the terms set forth in the First Refusal Notice and Notice, on the additional terms and provisions set forth in this Lease (except to the extent Section and not inconsistent with the First Refusal Notice, and on the additional terms set forth in a definitive agreement to be negotiated to the mutual satisfaction of the parties and mutually executed within thirty (30) days after Tenant’s exercise of the First Refusal NoticeRight (which definitive agreement shall be consistent with the First Refusal Notice and the requirements of this Section and shall otherwise contain reasonable and customary provisions, mutually acceptable to the parties, covering matters such as closing conditions and logistics, allocation of risk of loss, liquidated damages in the event of default by Tenant, etc.), which obligations shall be firm, unconditional and the parties shall promptly irrevocable except as expressly provided herein.
(and in all events within twenty (20ii) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept deliver a written acceptance of Landlord’s offer and an accompanying deposit (if applicable) within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreementtime, provided that neither party Tenant shall be entitled deemed not to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), have accepted such offer and Landlord shall thereafter have the right to lease sell the Offered Space Building(s) to the Offeror or to any other third partyOfferor, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Noticethereafter, at a minimum rental and on other terms and conditions not materially more favorable to the lessee Offeror than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms those set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentencessentence, the following shall not be deemed to be a variance change in terms materially more favorable to the Offeror which would cause a reinstatement of Tenant’s rights with respect to the Offered Building(s): (A) extensions of time to effect due diligence, cure defects or objections of any kind, or effect closing of a sale which do not exceed, in the aggregate, ninety (90) days; or (B) any reduction in price resulting from bona fide substantiated written due diligence objections of the Offeror if the aggregate reduction in price from all such matters is less than five percent (5%) of the specified purchase price. Landlord shall promptly provide Tenant with written evidence substantiating the basis for any proposed change in the amount terms of minimum sale pursuant to clause (A) or base NNN rent payments clause (B) in the preceding sentence. If Landlord intends to accept a reduction in the purchase price in excess of that set forth in the preceding clause (B), then Landlord shall give Tenant written notice thereof, including all correspondence and other written evidence substantiating the due diligence objections raised by the Offeror, and Tenant shall have five (5) business days after receipt of such notice to elect to purchase the Offered Building(s) on the same terms set forth in the First Refusal Notice but with the purchase price modified as disclosed in said notice to Tenant. If Tenant does not be deemed materially more favorable give written notice of its election to purchase within such five (5) business day period, then Landlord may proceed to effect the sale to the Offeror at a price not less than that disclosed in said notice to Tenant and otherwise on the terms and conditions set forth out in the First Refusal Notice. If Landlord does not lease sell the Offered Space Building(s) to the Offeror or another third party during the pursuant to this subparagraph within such 180-day period described aboveperiod, or if Landlord leases desires to sell any of the Offered Space Building(s) to the Offeror or another third party and Landlord later, upon expiration or termination of on more favorable terms during such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable)180-day period, then in either such event this first refusal right First Refusal Right shall reattach to or apply, as the Offered Space case may be, on all of the same terms set forth above. If Landlord sells the Offered Building(s) to the Offeror within such 180-day period, this First Refusal Right shall expire and be of no further force or effect with respect to the Offered Building(s) transferred by the Landlord to the Offeror, but shall remain in effect as to any of the Buildings that were not part of the Offered Building(s) transferred by the Landlord to the Offeror. Any sales contract with an Offeror shall indicate that the Offeror’s rights under such sales contract are subordinate to Tenant’s rights under this Section.
(iii) The right of first refusal provided in this Section 7(a) shall not apply to any transaction by Landlord consisting of a capital reorganization or reclassification of the capital stock or membership interests of Landlord, the consolidation or merger of Landlord with another entity in which Landlord is not the surviving entity, the sale of all or substantially all of Landlord’s assets to another entity; or the transfer of all of the Buildings to an entity controlling, controlled by or under common control with Landlord; provided that the rights conferred hereunder shall survive any such transaction and shall apply to subsequent bona fide transactions with respect to the Buildings or the Center. The successor-in-interest to Landlord’s rights and obligations hereunder shall assume by written instrument executed and delivered to Tenant Landlord’s obligations to honor Tenant’s rights with respect to any such subsequent offer for one or more Buildings or the Center.
Appears in 1 contract
First Refusal Right. Tenant shall have a continuing right of first refusal (a) The a “First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“OmnicellRight”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion Rentable Area on the third (3rd) floor of the First Refusal Premises Building that is or becomes vacant and if Tenant available for lease during the initial Term and is comprised of at least 5,000 square feet but not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant more than 10,000 square feet (the “First Refusal NoticeSpace”), specifying the material terms on which the Offeror proposes . Tenant’s First Refusal Right shall be triggered by Landlord’s receipt of a bona fide offer to lease the First Refusal Premises Space that Landlord desires to accept or applicable portion thereof a bona fide third party offer that Landlord desires to make (the in either case, a “Offered SpaceBona Fide Offer”). Upon receipt of such Bona Fide Offer, and Landlord shall offer provide notice (“Landlord’s Lease Notice”) to Tenant the opportunity to lease the Offered Space on of such receipt together with the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms conditions of the proposed leaseBona Fide Offer. Tenant shall have five (5) business days after the date Tenant’s receipt of giving of the Landlord’s Lease Notice to exercise its First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b)Right. If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke deliver its own lack notice of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right intent to lease the Offered First Refusal Space to the Offeror or to any other third party, at any time within one hundred eighty five (1805) business days after the expiration Tenant’s receipt of Landlord’s offer under Lease Notice, then Tenant’s First Refusal Right will lapse and be of no further force and effect (unless and until again effective pursuant to this Section) and Landlord may lease the First Refusal Notice, at Space to a minimum rental and third party on the same or any other terms and conditions conditions, not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms tenant than as set forth in the First Refusal Notice in a manner materially more favorable Bona Fide Offer accompanying Landlord’s Lease Notice; provided, however, that if the rent to the Offeror or other third be paid by such party than the minimum rental or other terms set forth in for the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than is over five percent (5%) less (“Lower Rent”) than the rent initially offered in the amount Bona Fide Offer accompanying Landlord’s Lease Notice, or the terms of minimum or base NNN rent payments shall not such third party’s lease are to be deemed otherwise materially more favorable to the Offeror third party than the terms as set forth in the Bona Fide Offer accompanying Landlord’s Lease Notice, Landlord shall offer the First Refusal Notice. If Landlord does not lease the Offered Space to Tenant at the Offeror Lower Rent or another third party during on such other favorable terms in accordance with the 180-day period described above, or if Landlord leases procedure contained in this Article 33 before leasing the Offered First Refusal Space to the Offeror or another such third party and Landlord laterparty, upon expiration or termination provided that Tenant shall deliver its notice of such lease, again wishes intent to lease the Offered First Refusal Space at such Lower Rent or any portion thereof during on such other favorable terms within three (3) business days after Tenant’s receipt of Landlord’s notice. Time is of the term essence with respect to the provisions of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth aboveArticle 33.
Appears in 1 contract
Samples: Office Lease (Jamba, Inc.)
First Refusal Right. (a) The During the Term, City hereby grants to Tenant a First Refusal Premises are presently leased Right applicable to another tenantthe Option Area as shown on Exhibit C, Omnicell, Inc. attached hereto. This First Refusal Right pertains to a qualified offer by a third party (“OmnicellThird Party”), under a whether an aviation related or non-aviation related entity, to lease presently scheduled to expire in August 2011. Landlord shall not lease or otherwise occupy all or any a portion of the Option Area. This First Refusal Premises at Right may be exercisable upon the receipt by City of any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written qualified offer from a person or entity (an “Offeror,” provided, however, that Third Party to lease the term “Offeror” shall not include Omnicell Option Area or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) part thereof. If City receives a qualified offer to lease all or any portion of the First Refusal Premises and if Tenant is not then Option Area from a Third Party at fair market value, based on a current appraisal prepared by an appraiser licensed to do business in default under this Lease (beyond any applicable notice and cure periods)the state of New Mexico, then Landlord before accepting such offer, City shall give deliver written notice of such bona fide written offer to Tenant (the “First Refusal Notice”)) to Tenant of such fact, specifying together with a copy of such offer. Within ninety (90) days after receipt of the material terms on which the Offeror proposes First Refusal Notice, Tenant shall be entitled to lease the Option Area or portion thereof as applicable, under the terms and conditions provided in subsection 6.1 below, by giving notice to City in writing of the exercise of such right to do so. If Tenant delivers written notice to City that Tenant does not desire to exercise the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity Right to lease the Offered Space on Option Area or portion thereof as applicable, or if Tenant fails to deliver written notice that it does not desire to exercise the terms specified First Refusal Right to lease the Option Area or portion thereof as applicable to City within such ninety (90) day period, then Tenant shall be deemed to have declined to exercise the First Refusal Right to acquire the Option Area or portion thereof as applicable. If Tenant refuses or declines to exercise such First Refusal Right, then City may enter into a lease or other occupancy agreement described in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept with such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant Third Party on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth offer contained in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above.
Appears in 1 contract
Samples: Ground Lease (Utilicraft Aerospace Industries, Inc.)
First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including after the expiration of any extended term, if applicable)and all available Lock-Up Periods, Landlord receives and wishes to accept a bona fide written offer from a person or entity other than Tenant (an the “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights”) to lease all purchase the Site, or any portion of thereof containing the First Refusal Premises Initial Building, the Expansion Building or both, and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods)Lease, then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”)Tenant, specifying the material terms on which the Offeror proposes to lease purchase the First Refusal Premises Site or applicable specified portion thereof (the “Offered SpaceProperty”), and shall offer to Tenant the opportunity to lease purchase the Offered Space Property on the terms specified in the First Refusal NoticeLandlord’s notice, as modified by Section 7.3 (if applicable). For purposes of this Section 1.4(b)7.2, an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet intent or other writing signed by the Offeror and specifies the material terms of the such proposed leasepurchase. Tenant shall have five twenty (520) business days after the date of giving of the First Refusal Notice such notice by Landlord in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space Property shall be leased sold to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease Landlord’s notice, as modified by Section 7.3 hereof (except to the extent inconsistent with the terms set forth in the First Refusal Noticeif applicable), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written an agreement incorporating and implementing containing the terms of TenantLandlord’s leasing of said notice and such other reasonable and customary terms as the Offered Space in accordance with this subparagraph (b)parties shall agree. If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification)time, Landlord shall thereafter have the right to lease sell the Offered Space Property to the Offeror or to any other third partyOfferor, at any time within one hundred eighty (180) days after the expiration of Tenant’s failure to accept Landlord’s offer under the First Refusal Noticeoffer, at a minimum rental price and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the price and other terms set forth of the original offer specified in the First Refusal NoticeLandlord’s said notice. If Tenant does not accept Landlord’s offer and Landlord does not lease sell the Offered Space Property to the Offeror or another third party during the within one hundred eighty (180-day period described above) days, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right First Refusal Right shall reattach to the Offered Space on Property. Tenant’s failure, if any, to exercise any or all of the same terms set forth aboveLock-Up Options shall not affect Tenant’s First Refusal Right under this Section 7.2.
Appears in 1 contract
Samples: Sublease (Macrogenics Inc)
First Refusal Right. (a) The First Refusal Following expiration of Tenant's right to add part or all of the Option Space to the Premises are presently leased pursuant to another tenantSection l.l(c) hereof, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled if Tenant has not elected to expire exercise such right in August 2011whole or in part. Landlord shall not thereafter lease all or any portion part of the First Refusal Option Space that has not already been added to the Premises at any time during the term of this Lease (including any extended term, if applicable)Lease, except in compliance with this Section 1.41.3; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default material default, beyond say applicable cure periods, under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including Lease (without limitation) the two-year renewal right existing , any "event of default," as that term is defined in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”Section 16.1, will be considered a material default); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time If Landlord during the term of this Lease (including any extended term, if applicable), Landlord after expiration of Tenant's rights under Section l.l(c) hereof) receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) prospective tenant to lease all or any portion of the First Refusal Premises Option Space, and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods)) under this Lease, then Landlord shall first give written notice of such bona fide offer to Tenant, attaching a copy of the written offer and specifying (to Tenant (the “First Refusal Notice”), specifying extent not set forth in such offer) the material terms on which the Offeror Landlord proposes to lease the First Refusal Premises Option Space or applicable portion thereof (the “"Offered Space”"), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in Landlord's notice and in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed leasewritten third-party offer. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice such notice by Landlord in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on oh the terms set forth in Landlord's notice and in the First Refusal Notice written third-party offer, and on the additional terms and provisions set forth in this Lease herein (except to the extent inconsistent with the terms set forth in the First Refusal NoticeLandlord's said notice and in said written offer), and the parties shall promptly execute an amendment to (this Lease adding the Offered Space to the Premises and in all events within twenty (20) days after delivery making any appropriate amendments to provisions of Tenant’s acceptance) execute a lease amendment or this Lease to reflect different rent and other written agreement incorporating and implementing obligations applicable to the Offered Space under the terms of Tenant’s leasing Landlord's said notice and of the Offered Space in accordance with this subparagraph (b)said written offer. If Tenant does not accept Landlord’s 's offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), time. Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, parry which submitted the bona fide written offer at any time within one hundred eighty (180) days after the expiration of Tenant's failure to accept Landlord’s offer under the First Refusal Notice's offer, at a minimum rental and on other terms tarns and conditions not materially more favorable to the lessee than the minimum rental and other other-terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal NoticeLandlord's said notice. If Tenant does not accept Landlord's offer and Landlord does not lease the Offered Space to the Offeror or another such third party during the parry within one hundred eighty (180-day period described above) days, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination this First Right of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right Refusal shall reattach to that space. For purposes of this Section 1.3(b), a "bona fide written offer" shall mean a terms sheet, letter of intent or other written statement of proposed lease terms that has been signed by the Offered Space on all prospective lessee or by its authorized agent, even if such terms sheet letter or statement is non-binding or is subject to preparation of the same terms set forth abovefull documents, completion of due diligence or inspections, or other customary and commercially reasonable contingencies.
Appears in 1 contract
First Refusal Right. If the Company proposes to issue (aa -------------------- "Proposed Issuance") The Additional Securities (as defined below), the Company shall offer such Additional Securities to Executive, and Executive shall have the right (a "First Refusal Premises are presently leased Right") to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease purchase all or any portion of his Pro Rata Share (as defined below) of such Additional Securities, upon the terms of the Proposed Issuance. The Company shall give Executive written notice of the Proposed Issuance stating the material terms thereof, including the type of Additional Securities involved, the proposed purchase price therefor and the anticipated closing date of such issuance (the "Company Notice"). If Executive desires to exercise his First Refusal Premises at any time during Right, Executive shall, within 20 days of receipt of the term of this Lease (including any extended termCompany Notice, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate deliver to the rights Company written notice stating the portion of Omnicell and its successors Executive's Pro Rata Share of such Additional Securities that he is willing to purchase (a "Response Notice"). Executive's Response Notice shall be deemed to constitute his irrevocable agreement to purchase the specified portion of his Pro Rata Share of the Additional Securities upon the terms of the Proposed Issuance described in interest the Company Notice, on the later of (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitationi) the two-year renewal right existing closing date specified in favor of Omnicell under the Omnicell Lease as Company Notice or (ii) the closing date of the Lease Commencement Date (all Proposed Issuance if other persons are purchasing Additional Securities. The Company shall have 90 days from the date of the Company Notice to consummate such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option Proposed Issuance with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 Additional Securities which are not being purchased by Executive at a price and shall thereafter be of no further force or effect; upon terms that are not materially less favorable to the Company than the price and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Company Notice. For purposes of this Section 1.4(b), an offer and such price and terms shall be considered bona fide made available to Executive if it is contained in Executive has elected to purchase Additional Securities. If the Company proposes to issue Additional Securities after such 90-day period, or at a letter of intent, price and upon terms sheet or other writing signed by which are materially less favorable to the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth Company than those specified in the First Refusal Notice and on Company Notice, it must again comply with the additional terms and provisions procedures set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth abovesection.
Appears in 1 contract
Samples: Employment Agreement (Virtual Mortgage Network Inc)
First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended termLease, if applicable), ------------------- Landlord receives and wishes to accept a bona fide written offer from a person --------- or entity other than Tenant (an “the "Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights") to lease all purchase the Site or any portion either or both of the First Refusal Premises Buildings, and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods)Lease, then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”)Tenant, specifying the material terms on which the Offeror proposes to lease the First Refusal Premises purchase such building or applicable specified portion thereof (the “"Offered Space”Property"), and shall offer to Tenant the opportunity to lease purchase the Offered Space Property on the terms specified in the First Refusal NoticeLandlord's notice, as modified by Section 7.3 (if applicable). For purposes of this Section 1.4(b)7.2, an offer shall be considered bona fide if it is --------- contained in a letter of intent, terms sheet intent or other writing signed by the Offeror and specifies the material terms of the such proposed leasepurchase. Tenant shall have five twenty (520) business days after the date of giving of the First Refusal Notice such notice by Landlord in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space Property shall be leased sold to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease Landlord's notice, as modified by Section 7.3 hereof (except to the extent inconsistent with the terms set forth in the First Refusal Noticeif applicable), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written an agreement incorporating and implementing containing the terms of Tenant’s leasing of Landlord's said notice and such other reasonable and customary terms as the Offered Space in accordance with this subparagraph (b)parties shall agree. If Tenant does not accept Landlord’s 's offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification)time, Landlord shall thereafter have the right to lease sell the Offered Space Property to the Offeror or to any other third partyOfferor, at any time within one hundred eighty (180) days after the expiration of Tenant's failure to accept Landlord’s offer under the First Refusal Notice's offer, at a minimum rental price and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the price and other terms set forth of the original offer specified in the First Refusal NoticeLandlord's said notice. If Tenant does not accept Landlord's offer and Landlord does not lease sell the Offered Space Property to the Offeror or another third party during the within one hundred eighty (180-day period described above) days, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right First Refusal Right shall reattach to the Offered Space on all of the same terms set forth aboveProperty.
Appears in 1 contract
Samples: Build to Suit Lease (Tularik Inc)
First Refusal Right. (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including ------------------- after the expiration of any extended term, if applicable)and all available Lock-Up Periods, Landlord receives and wishes to accept a bona fide written offer from a person or entity other --------- than Tenant (an “the "Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights") to lease all purchase the Site, or any portion of thereof containing the First Refusal Premises Initial Building, the Expansion Building or both, and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods)Lease, then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”)Tenant, specifying the material terms on which the Offeror proposes to lease purchase the First Refusal Premises Site or applicable specified portion thereof (the “"Offered Space”Property"), and shall offer to Tenant the opportunity to lease purchase the Offered Space Property on the terms specified in the First Refusal NoticeLandlord's notice, as modified by Section 7.3 (if applicable). For purposes of this Section 1.4(b)7.2, an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet intent or other writing signed by --------- the Offeror and specifies the material terms of the such proposed leasepurchase. Tenant shall have five twenty (520) business days after the date of giving of the First Refusal Notice such notice by Landlord in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space Property shall be leased sold to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease Landlord's notice, as modified by Section 7.3 hereof (except to the extent inconsistent with the terms set forth in the First Refusal Noticeif applicable), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written an agreement incorporating and implementing containing the terms of Tenant’s leasing of Landlord's said notice and such other reasonable and customary terms as the Offered Space in accordance with this subparagraph (b)parties shall agree. If Tenant does not accept Landlord’s 's offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification)time, Landlord shall thereafter have the right to lease sell the Offered Space Property to the Offeror or to any other third partyOfferor, at any time within one hundred eighty (180) days after the expiration of Tenant's failure to accept Landlord’s offer under the First Refusal Notice's offer, at a minimum rental price and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the price and other terms set forth of the original offer specified in the First Refusal NoticeLandlord's said notice. If Tenant does not accept Landlord's offer and Landlord does not lease sell the Offered Space Property to the Offeror or another third party during the within one hundred eighty (180-day period described above) days, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right First Refusal Right shall reattach to the Offered Space on Property. Tenant's failure, if any, to exercise any or all of the same terms set forth aboveLock-Up Options shall not affect Tenant's First Refusal Right under this Section 7.2.
Appears in 1 contract
Samples: Build to Suit Lease (Tularik Inc)
First Refusal Right. So long as this Lease is in full force and effect and Tenant:
(ai) The Is occupying and doing business from the Demised Premises at the time the election is exercised; and
(ii) Is not in default under the Lease either at the time of the election or at the effective date thereof; and
(iii) has maintained a history of payments within the applicable grace period, if any, provided under the Lease; Landlord agrees that prior to renting Suitx 000, Xxxxx 000, Xxxxx 000, Xxxxx 000, Xxxxx 000, xx Xxxxx 000, xx the same is more fully identified on Exhibit E, attached hereto and incorporated herein (the "First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”Space"), under Landlord will submit to Tenant a copy of the unexecuted proposed Lease or a summary of the business and economic term of the Lease which the Landlord is willing to accept from the third party (the "Offered Lease"). On or before the fifth (5th) business day after the Tenant's receipt of such notice, Tenant will have the right (the "First Refusal Right") to send Landlord a notice stating Tenant elects to rent the applicable First Refusal Space upon the identical terms and conditions set forth in the Offered Lease. To be timely, such notice must be postmarked within the five (5) business day period. If Tenant timely exercises the First Refusal Right, Landlord and Tenant will promptly enter into a lease presently scheduled or lease amendment agreement for the applicable First Refusal Space (the "New Lease") on the Offered Lease terms. If for any reason Tenant fails to expire in August 2011. timely exercise the First Refusal Right, or if Tenant properly exercises it but thereafter for any reason (except for delays caused by the Landlord) does not execute the New Lease within five business days after its submission to Tenant, Landlord shall not lease will be free to rent all or any portion of the First Refusal Premises at Space to any time during other prospective tenant and the term First Refusal Right will be null and void without further force and effect throughout the remainder of the Term of this Lease (including any extended termor its extensions, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option modifications or amendments thereof with respect to the 2025 Expansion Premises under Section 1.3 aboveentire First Refusal Space, whether or not the entire First Refusal Space was included as part of the New Lease. Additionally, if Tenant exercises the First Refusal Right, but then fails to timely execute the New Lease, and should the previously-interested third party tenant no longer be willing to sign the Offered Lease, then Tenant’s rights Tenant shall be liable for any and all rental obligations due Landlord under the terms of the New Lease. Notwithstanding any contrary provisions hereof: (a) the New Lease must (i) be guaranteed by the guarantor(s) of this Lease, if any, upon a guaranty form which is identical to the guaranty form applicable to this Lease, and (ii) stipulate that any default by Tenant thereunder will be deemed to constitute a like default under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter Lease ; (b) Tenant agrees that any default by it under this Lease will be of no further force or effectdeemed to constitute a like default under the New Lease; and provided further, that Tenant’s rights pursuant (c) this Right of First Refusal is transferrable to this Section 1.4 are personal to Tenant, and any assignee or purchaser of CMSI but may not be exercised (except with Landlord’s prior written consentassigned or transferred to any sublessee of CMSI. Notwithstanding any of the foregoing to the contrary, in Landlord’s sole discretion) by Tenant's right to exercise this First Refusal Right shall be subject and subordinate to the right of Innovative System Developers, Inc. to suite 310 and suite 318 and to any assignee other existing rights of Tenant’s interest under this Lease refusal, offer, expansion or by renewal previously granted to any subtenant.
(b) Ifcurrent tenant of the Building, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest of their successors, sublessees or assigns for the First Refusal Space. Tenant acknowledges and agrees that notwithstanding the fact that Tenant may properly exercise its rights with respect to the First Refusal Space, Tenant's right to exercise its First Refusal Right shall be null and void if any current tenant in the Building, or any of their successors, sublessees or assigns exercises any rights or negotiations under the Omnicell Lease or previously granted to them with respect to the First Refusal Space. In such event, neither Landlord nor Tenant shall have any liabilities to the other Omnicell Rights) to lease all or any portion party as a result of the First Refusal Premises Right becoming null and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth abovevoid.
Appears in 1 contract
Samples: Office Building Lease (Credit Management Solutions Inc)
First Refusal Right. (ai) The First Refusal Premises are presently leased Subject to another tenantSections 5(c) and 6, Omnicellto the extent the WCAS Majority Holders consent to such Transfer, Inc. at least 30 days prior to any Transfer of any Stockholder Shares (“Omnicell”), under other than an Exempt Transfer or a lease presently scheduled Transfer pursuant to expire in August 2011. Landlord shall not lease all or any portion a Sale of the First Refusal Premises at any time during Company) by a Management Stockholder or Co-Investor, the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time transferring Management Stockholder or Co-Investor (the “Omnicell LeaseTransferring Stockholder”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept deliver a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the a “First Refusal Notice”) to the holders of WCAS Shares and, in the case of a proposed Transfer by a Management Stockholder, to the Co-Investors. With respect to any such notice, (i) in the case of any proposed Transfer by a Co-Investor, the holders of WCAS Shares are collectively referred to as the “Offerees,” and (ii) in the case of any proposed Transfer by a Management Stockholder, the holders of WCAS Shares and the Co-Investors are collectively referred to as the “Offerees.” The First Refusal Notice shall disclose in reasonable detail the proposed number of Stockholder Shares to be transferred (such shares being herein referred to as the “Subject Shares”), specifying the material proposed terms on which and conditions of the Offeror proposes Transfer and the identity of the proposed transferee(s). The Transferring Stockholder will not deliver a First Refusal Notice to lease the Offerees unless and until it has received a bon fide offer from the named proposed transferee(s) to effect the Transfer in question. The purchase price specified in any First Refusal Notice shall be payable solely in cash at the closing of the transaction or in installments over time.
(ii) After receipt of a First Refusal Notice, each Offeree may elect to purchase all or a portion of the Subject Shares specified in the First Refusal Premises or applicable portion thereof Notice at the price and on the terms specified therein, by delivering written notice of such election (the “Offered SpaceElection Notice”) to the Transferring Stockholder within 20 days (the “Election Period”) after delivery of the First Refusal Notice (each such electing Offeree being referred to herein as an “Electing Offeree”), . Such Election Notice shall constitute a firm offer to purchase the Subject Shares and shall offer remain open for a minimum of 90 days following the expiration of the Election Period. Each Offeree shall be entitled to Tenant purchase a number of Subject Shares equal to the opportunity product of (i) the quotient determined by dividing (A) the number of Stockholder Shares owned by such Offeree by (B) the aggregate number of Stockholder Shares owned by all Offerees (excluding for this purpose any Stockholder Shares of any Offeree underlying options or convertible securities that have not been exercised or converted), multiplied by (ii) the aggregate number of Subject Shares. In addition, each Electing Offeree that designated in its Election Notice that it desires to lease acquire Subject Shares that other Offerees declined to purchase shall be entitled to purchase an additional number of Subject Shares equal to the Offered Space product of (i) the quotient determined by dividing (A) the number of Stockholder Shares owned by such Electing Offeree by (B) the aggregate number of Stockholder Shares owned by all Electing Offerees (excluding for this purpose any Stockholder Shares of any Electing Offeree underlying options or convertible securities that have not been exercised or converted), multiplied by (ii) the aggregate number of Subject Shares that other Offerees declined to purchase. Thereafter, any unallocated Subject Shares specified in the First Refusal Notice will be further allocated in a similar manner as may be necessary until all of the Subject Shares have been allocated; provided, that in any event, no Electing Offeree will be allocated more than the maximum number of Subject Shares that such Electing Offeree specified in its Election Notice.
(iii) If the Offerees, in the aggregate, have elected to purchase from the Transferring Stockholder all but not less than all of the Subject Shares, then the Transfer of such shares to the Offerees shall be consummated as soon as practical after the delivery of the Election Notice(s) to the Transferring Stockholder, but in any event within ten (10) days after the expiration of the Election Period. If the Electing Offerees have not elected to purchase all of the Subject Shares being offered, then the Transferring Stockholder may, within 90 days after the expiration of the Election Period, Transfer all of the Subject Shares to the proposed transferee(s) named in the First Refusal Notice at the price specified in the First Refusal Notice and on terms no more favorable to the terms proposed transferee(s) than those specified in the First Refusal Notice. For purposes of If such Subject Shares are not so transferred within such 90-day period, than they shall be reoffered to the Offerees under this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (55(a) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or prior to any subsequent Transfer (other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at than an Exempt Transfer or a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms Transfer pursuant to a new First Refusal Notice. For purposes Sale of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicableCompany), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above.
Appears in 1 contract
First Refusal Right. (a) The Tenant shall have a one-time right of first refusal (a “First Refusal Premises Right”) to lease certain premises that are presently leased to another tenantlocated in Suite 315 of the Building, Omnicell, Inc. as more particularly shown on Exhibit C attached hereto (the “OmnicellFirst Refusal Space”), under a lease presently scheduled to expire in August 2011. Landlord shall not lease ) at such time as all or any portion of the First Refusal Premises at any time Space becomes vacant and available for lease during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Term. Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 First Refusal Right shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with triggered by Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee receipt of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the vacant and available First Refusal Premises or applicable portion thereof Space (the “Offered SpaceBona Fide Offer”)) from a third party that Landlord is willing to accept. Upon receipt of such Bona Fide Offer, and Landlord shall offer provide notice to Tenant the opportunity to lease the Offered Space on of such receipt (“Landlord’s Lease Notice”) together with the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms conditions of the proposed leaseBona Fide Offer. Tenant shall have five (5) business days after Tenant’s receipt of Landlord’s Lease Notice to exercise its First Refusal Right to lease all, but not a part of, the First Refusal Space described in Landlord’s Lease Notice. If Tenant does not deliver its notice of intent to lease such First Refusal Space within five (5) business days after Tenant’s receipt of Landlord’s Lease Notice, then Tenant’s First Refusal Right will lapse and be of no further force and effect and Landlord may lease the First Refusal Space to a third party on the same or any other terms and conditions, whether or not such terms and conditions are more or less favorable than those offered to Tenant; provided, however, that if the base rent to be paid by such party for the First Refusal Space (factoring in any applicable rent abatements or concessions) or other economic terms are more than ten percent (10%) more favorable (“Better Terms”) than the terms initially offered in the Bona Fide Offer accompanying Landlord’s Lease Notice, Landlord shall offer the First Refusal Space to Tenant at the Better Terms in accordance with the procedure contained in this Section 6 before leasing the First Refusal Space to such third party, provided that Tenant shall deliver its notice of intent to lease the First Refusal Space at such Better Terms within three (3) business days after Tenant’s receipt of Landlord’s notice. Time is of the essence with respect to the provisions of this Section 6.
(b) Notwithstanding anything herein to the contrary, Tenant shall have no First Refusal Right and Landlord need not provide Tenant with Landlord’s Lease Notice, if: (i) Tenant is in default beyond applicable notice and cure periods under this Lease at the time Landlord would otherwise deliver the Landlord’s Lease Notice; (ii) the Premises, or more than 25% of the Premises, is sublet to an entity other than a Related Company at the time Landlord would otherwise deliver the Landlord’s Lease Notice; (iii) the Lease has been assigned to an entity other than a Related Company prior to the date Landlord would otherwise deliver the Landlord’s Lease Notice; or (iv) Tenant or a Related Company is not occupying the Premises on the date that Landlord would otherwise deliver the Landlord’s Lease Notice. The rights of giving Tenant hereunder with respect to the First Refusal Space shall terminate on the earlier to occur of: (x) Tenant’s failure to exercise its First Refusal Right within five (5) business days after Tenant’s receipt of Landlord’s Lease Notice (subject to Landlord’s obligation to re-offer the First Refusal Space as set forth in Section 6(a) above), and (y) the date that Landlord would have provided Tenant the Landlord’s Lease Notice if one or more of the conditions set forth above is satisfied.
(c) If Tenant exercises its First Refusal Right as provided above, the term for the applicable First Refusal Space shall commence upon the commencement date stated in the Landlord’s Lease Notice and thereupon such First Refusal Space shall be considered a part of the Premises, provided that all of the terms stated in the Landlord’s Lease Notice shall govern Tenant’s leasing of such First Refusal Space and only to the extent that they do not conflict with the Landlord’s Lease Notice, the terms and conditions of this Lease shall apply to such First Refusal Space. The First Refusal Space (including improvements and personal property, if any) shall be accepted by Tenant in its “as-is” condition and as-built configuration existing on the earlier of the date Tenant takes possession of the First Refusal Space or as of the date the term for such First Refusal Space commences, unless the Landlord’s Lease Notice specifies any work to be performed by Landlord in the First Refusal Space, in which case Landlord shall perform such work in the First Refusal Space. If Tenant exercises its First Refusal Right, Landlord shall prepare an amendment (the “Expansion Amendment”) adding the First Refusal Space to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant Premises on the terms set forth in the Landlord’s Lease Notice and reflecting the changes in Base Rent, Tenant’s Percentage Share and other appropriate terms. A copy of the Expansion Amendment shall be (i) sent to Tenant within a reasonable time after receipt of the Tenant’s notice exercising its First Refusal Notice Right, and on (ii) subject to Landlord’s and Tenant’s agreement regarding the additional terms form of such amendment, executed by Tenant and provisions returned to Landlord within ten (10) business days thereafter, but an otherwise valid exercise of the First Refusal Right contained herein shall, at Landlord’s option, be fully effective whether or not the Expansion Amendment is executed.
(d) Notwithstanding anything herein to the contrary, if the First Refusal Space becomes available during the last six (6) months of the Renewal Term, Tenant may not exercise its First Refusal Right unless it simultaneously exercises its Extension Option set forth herein.
(e) Notwithstanding anything set forth in this Lease (except to the extent inconsistent with contrary, the terms First Refusal Right set forth in the First Refusal Notice)this Section 6 shall be personal to iRhythm Technologies, Inc., as Tenant, and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space any Related Company to which iRhythm Technologies, Inc. has assigned this Lease as permitted in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time Lease and may only be exercised by iRhythm Technologies, Inc. or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period Related Company described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord latermay not be exercised by any other assignee, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term sublessee, or other transferee of iRhythm Technologies, Inc.’s interest in this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth aboveLease.
Appears in 1 contract
Samples: Lease (iRhythm Technologies, Inc.)
First Refusal Right. 21.1 Subject to the Lessee’s full compliance with all the terms provided herein and without any occurrence of the Event of Default during the Lease Term and/or Extended Lease Term (a) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. (“Omnicell”including their date of expiration), under the Lessor hereby grants to the Lessee a lease presently scheduled non-assignable and non-transferable right to expire in August 2011. Landlord shall purchase all, but not lease all or any portion less than all, of the First Refusal Premises at any time Leased Facilities during the term of this Lease Term and/or Extended Lease Term (including any extended term, if applicable), except unless is earlier terminated) in compliance with this Section 1.4; provided, however, the event that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant Lessor determines to this Section 1.4 are subordinate to sell the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (Leased Facilities. The Lessor will provide the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept Lessee a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Right Notice”), specifying ) indicating the material price and other terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof and conditions for such sale (the “Offered SpacePurchase”), and the Lessee shall offer irrevocably respond to Tenant the opportunity Lessor in writing within fifteen (15) business days of the Lessor’s notice ensuring the Lessee’s decision to lease buy accordingly. Failure to respond the Lessor in accordance with the aforesaid shall be deemed that the Lessee has elected not to exercise such rights and Lessee’s first refusal rights provided under this Article 21 shall be deemed waived and immediately expire. The Lessor shall have no obligation to sell any Leased Facilities to the Lessee unless and until all of the Leased Facilities shall be purchased and paid by the Lessee on the equivalent terms and conditions offered by the Offered Space Purchase. It is expressly understood by the parties hereto that any purchase hereunder SHALL BE WITHOUT REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, on the part of the Lessor and that the Lessor sells the Leased Facilities hereunder on a “AS IS,” “WHERE IS” basis.
21.2 If the Lessee elects not to purchase the Leased Facilities according to Article 21.1, then Lessor shall have the right to sell to the Leased Facilities on the terms and conditions specified in the First Refusal Right Notice. For purposes Lessee’s right provided in this Article shall not apply to any sublessee or assignee unless agreed by the Lessor in writing. The Parties agree to have the Agreement to be notarized by the public notary institutions chose by the Parties, cost of this Section 1.4(b), an offer which shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed shared by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180Parties 50-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above50.
Appears in 1 contract
Samples: Lease Agreement (SemiLEDs Corp)
First Refusal Right. (a) The First Refusal Premises are presently leased Sublessor hereby grants to another tenantSublessee, Omnicellin accordance with the terms of this Section 14.13, Inc. (“Omnicell”), under a lease presently scheduled right of first refusal to expire in August 2011. Landlord shall not lease all or sublease any portion space on the 9th floor of the First Refusal Premises Building that Sublessor desires to sublease to any third party at any time during the Sublease Term. If Sublessor makes or receives a definitive offer to sublease any portion of the 9th floor to any third party, prior to entering into such sublease, Sublessor shall offer (the "First Refusal Offer") to add such space to this Sublease for a term expiring on the same date as the Sublease Term hereunder but at such rental rate (taking into account all inducements and discounts) as Sublessor intends to sublease the space to such third party. Sublessor shall promptly deliver to Sublessee written notice of this Lease any such offer made to or received from a third party (including any extended term, if applicableall material terms and conditions thereof), except and Sublessee shall have ten (10) days within which to accept Sublessor's First Refusal Offer in compliance with this Section 1.4; provided, however, that the foregoing restriction shall writing. If Sublessee does not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the twoaccept Sublessor's First Refusal Offer within said 10-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 aboveday period, then Tenant’s rights under this Section 1.4 Sublessor shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant entitled to this Section 1.4 are personal to Tenant, and may not be exercised (except enter into a sublease with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, such third party at any time during within 90 days thereafter on the term terms quoted in the First Refusal Offer; and if Sublessor does not so enter into such a sublease with such third party, then Sublessee's first refusal right shall again be applicable in respect of this Lease (including any extended term, if applicable), Landlord receives and wishes such space. Sublessee's failure to accept a bona fide written offer from a person or entity (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest exercise its first refusal right hereunder with respect to any rights portion of the 9th floor shall not affect or negotiations under the Omnicell Lease or limit Sublessee's first refusal right with respect to any other Omnicell Rights) to lease all or any portion of the First Refusal Premises and if Tenant is not then in default under this Lease (beyond any applicable notice and cure periods), then Landlord shall give written notice of such bona fide written offer to Tenant (the “First Refusal Notice”), specifying the material terms on which the Offeror proposes to lease the First Refusal Premises or applicable portion thereof (the “Offered Space”), and shall offer to Tenant the opportunity to lease the Offered Space on the terms specified in the First Refusal Notice. For purposes of this Section 1.4(b), an offer shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by the Offeror and specifies the material terms of the proposed lease. Tenant shall have five (5) business days after the date of giving of the First Refusal Notice in which to accept such offer by written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing of the Offered Space in accordance with this subparagraph (b). If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party shall be entitled to invoke its own lack of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space to the Offeror or to any other third party, at any time within one hundred eighty (180) days after the expiration of Landlord’s offer under the First Refusal Notice, at a minimum rental and on other terms and conditions not materially more favorable to the lessee than the minimum rental and other terms offered to Tenant in the First Refusal Notice. If, in the course of negotiations with the Offeror or another third party during the 180-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable to the Offeror or other third party than the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth above9th floor.
Appears in 1 contract
Samples: Sublease Agreement (SPSS Inc)
First Refusal Right. (ai) The First Refusal Premises are presently leased to another tenant, Omnicell, Inc. If any Shareholder (“Omnicell”), under an "Offeror") shall receive a lease presently scheduled to expire in August 2011. Landlord shall not lease all or any portion of the First Refusal Premises at any time during the term of this Lease (including any extended term, if applicable), except in compliance with this Section 1.4; provided, however, that the foregoing restriction shall not apply during any period in which Tenant is in default under this Lease, beyond any applicable notice and cure periods; provided further, that Tenant’s rights pursuant to this Section 1.4 are subordinate to the rights of Omnicell and its successors in interest (if any) pursuant to Omniceirs lease presently in effect and as amended from time to time (the “Omnicell Lease”), including (without limitation) the two-year renewal right existing in favor of Omnicell under the Omnicell Lease as of the Lease Commencement Date (all such superior rights described in this proviso being hereinafter collectively referred to as “Omnicell Rights”); provided further, that if Tenant fails to timely and effectively exercise its expansion option with respect to the 2025 Expansion Premises under Section 1.3 above, then Tenant’s rights under this Section 1.4 shall expire as of May 1, 2009 and shall thereafter be of no further force or effect; and provided further, that Tenant’s rights pursuant to this Section 1.4 are personal to Tenant, and may not be exercised (except with Landlord’s prior written consent, in Landlord’s sole discretion) by any assignee of Tenant’s interest under this Lease or by any subtenant.
(b) If, at any time during the term of this Lease (including any extended term, if applicable), Landlord receives and wishes to accept a bona fide written offer from a person or entity third party (an “Offeror,” provided, however, that the term “Offeror” shall not include Omnicell or any successor in interest with respect to any rights or negotiations under the Omnicell Lease or with respect to any other Omnicell Rights"Bona Fide Offer") to lease all or purchase any portion of its Covered Shares that would constitute a Non-Exempt Transfer and desires to accept the same, then, at least 25 Business Days before making any such Non-Exempt Transfer (the "First Offer Election Period"), the Transferor will deliver a written notice accompanied by a copy of the Bona Fide Offer (the "First Refusal Premises Offer Notice") to the Holding Company and if Tenant is not then to all other Shareholders (the "Offerees"). The First Offer Notice will specify the proposed number of Covered Shares to be the subject of such Transfer (the "Offered Shares") and disclose in default under reasonable detail the proposed terms and conditions of the Transfer. Unless otherwise agreed by the Offeror, the purchase price for any such Transfer must be payable solely in cash at the closing of the transaction. For purposes of this Lease (beyond any applicable notice and cure periodsSection 3(b), then Landlord shall give written notice the value of such bona fide written offer any securities or other non-cash consideration to Tenant (the “First Refusal Notice”), specifying the material terms on which be received by the Offeror proposes as part of the Non-Exempt Transfer shall be established by an independent appraisal or an opinion of a nationally recognized investment banking or valuation firm obtained at the expense of the Offeror.
(ii) The Holding Company and the Offerees shall have the right to lease the First Refusal Premises or applicable portion thereof purchase all (the “Offered Space”), and shall offer to Tenant the opportunity to lease but not less than all) of the Offered Space Shares, at the price and on the terms specified in the First Refusal Offer Notice (the "First Offer Right") by delivering written notice of such election (the "First Offer Election Notice. For purposes of ") to the Offeror as provided in this Section 1.4(b3(b)(ii). Within 25 Business Days after receipt of the First Offer Notice (the "Election Period"), an offer the Holding Company shall be considered bona fide if it is contained in a letter of intent, terms sheet or other writing signed by give written notice to the Offeror and specifies the material terms Offerees of the proposed leasenumber of Offered Shares it has elected to purchase. Tenant shall have If the Holding Company does not elect to purchase all of the Offered Shares within the Election Period, the Offerees, within five (5) business days Business Days after the date of giving expiration of the First Refusal Notice in which to accept such offer by Election Period, shall give written notice to Landlord. Upon such acceptance by Tenant, the Offered Space shall be leased to Tenant on the terms set forth in the First Refusal Notice and on the additional terms and provisions set forth in this Lease (except to the extent inconsistent with the terms set forth in the First Refusal Notice), Holding Company and the parties shall promptly (and in all events within twenty (20) days after delivery of Tenant’s acceptance) execute a lease amendment or other written agreement incorporating and implementing the terms of Tenant’s leasing Offeror of the number of Offered Space in accordance with this subparagraph (b)Shares they have elected to purchase. If Tenant does not accept Landlord’s offer within the allotted time or if the parties fail to enter into such a lease amendment or other written agreement within the required time (notwithstanding Landlord’s and Tenant’s good faith and diligent efforts to enter into such a lease amendment or other written agreement, provided that neither party Each Offeree shall be entitled to invoke its own lack elect to purchase his pro rata portion of good faith, diligent efforts, if applicable, as a basis for invoking this parenthetical qualification), Landlord shall thereafter have the right to lease the Offered Space Shares that the Holding Company has not elected to purchase, and if any Offeree does not elect to purchase his pro rata portion of the Offeror Offered Shares, each electing Offeree shall be entitled to purchase all of the remaining Offered Shares; provided that if in -------- the aggregate such Offerees elect to purchase more than the remaining Offered Shares, such remaining Offered Shares purchased by each such electing Offeree will be reduced on a pro rata basis. The pro rata basis will be based on the number of Common Shares then held by such Offeree.
(iii) If the Holding Company and the Offerees have elected to purchase all Offered Shares, the transfer of such shares will be consummated as soon as practicable (but in any event within 25 Business Days) after the later of (i) the delivery of the First Offer Election Notice by the Holding Company if it has elected to purchase all of the Offered Shares, or (ii) the delivery of the First Offer Election Notice by the Offerees if they alone, or together with the Holding Company, have elected to any other third partypurchase all of the Offered Shares. If the Holding Company and the Offerees have not elected to purchase all of the Offered Shares, at any time the Transferor may, within one hundred eighty (180) 90 days after the expiration of Landlord’s offer under the First Refusal NoticeOffer Election Period, transfer all (but not less than all) such Offered Shares to one or more Third Parties at a minimum rental the same or higher price and on other terms and conditions not materially more favorable in the aggregate to the lessee transferee(s) than the minimum rental and other terms offered to Tenant the Offerees in the First Refusal Offer Notice; provided, that prior to such Transfer, such transferees shall have -------- agreed in writing to be bound by the provisions of this Agreement and shall have delivered to the Holding Company an executed counterpart of this Agreement. If, in the course of negotiations with the Offeror or another third party during the 180Any Offered Shares not transferred within such 90-day period described in the preceding sentence, Landlord wishes to modify the minimum rental or other terms set forth in the First Refusal Notice in a manner materially more favorable will be subject to the provisions of this Section 3 upon subsequent transfer.
(iv) Notwithstanding the foregoing, unless the Offeror or other third party than shall have consented to the minimum rental or other terms set forth in the First Refusal Notice, then Landlord shall be required to re-offer the Offered Space to Tenant on such more favorable terms pursuant to a new First Refusal Notice. For purposes of the preceding two sentences, a variance purchase of less than five percent (5%) in the amount of minimum or base NNN rent payments shall not be deemed materially more favorable to the Offeror than the terms set forth in the First Refusal Notice. If Landlord does not lease the Offered Space to the Offeror or another third party during the 180-day period described above, or if Landlord leases the Offered Space to the Offeror or another third party and Landlord later, upon expiration or termination of such lease, again wishes to lease the Offered Space or any portion thereof during the term of this Lease (including any extended terms, if applicable), then in either such event this first refusal right shall reattach to the Offered Space on all of the same terms set forth aboveOffered Shares, no Offeree may purchase any Offered Shares unless all of the Offered Shares are to be purchased.
Appears in 1 contract
Samples: Shareholders Agreement (Red Robin Gourmet Burgers Inc)
