Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein. (ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure. (iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 11 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (i) If Seller resizes the Project due Subject to Permit FailureSections 3 and 4(a), then for if at any time a period Holder or Group of three (3) years from the date on which Seller Notifies Buyer Holders proposes to Transfer any outstanding shares of capital stock of the Contract Capacity Commitment Corporation to any Person other than a Permitted Transferee, such Holder (the “Exclusivity PeriodOffering Holder”) shall deliver to Xxx and Xxxxx written notice (the “Offer Notice”), neither Sellersetting forth such Offering Holder’s intention to effect such a Transfer, its successors and assignsthe number of shares of capital stock proposed to be Transferred (the “Offered Securities”), nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, proposed purchase price therefor (the “First OfferOffer Price”), and the other material terms and conditions of the proposed Transfer, and (A) in the case of a Xxxxx Xxxxxx, offering Xxx the right to purchase the Offered Securities, and Buyer either accepts or rejects such First Offer (B) in the case of a Xxx Xxxxxx, offering Xxxxx the right to purchase the Offered Securities, in each case in accordance with the provisions hereinterms set forth in this Section 4(b).
(ii) If Buyer accepts Xxx or Xxxxx, as applicable, shall have the option to purchase, at the First OfferOffer Price and otherwise on the terms and conditions described in the Offer Notice, Buyer shall Notify Seller all of the Offered Securities, and shall, within thirty five (305) days of Business Days from receipt of the First Offer subject Notice, send irrevocable written notice (a “ROFO Acceptance Notice”) to Buyer’s management approval and CPUC Approval (“Buyer’s the Offering Holder indicating whether it has accepted the offer in the Offer Notice. For the avoidance of doubt, Xxx or Xxxxx, as applicable, shall be deemed to have waived its right to purchase the Offered Securities if he fails to deliver a ROFO Acceptance Notice of First Offer Acceptance”within the time period prescribed in this Section 4(b)(ii), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects Xxx or fails Xxxxx, as applicable, do not elect to accept Seller’s First Offer within thirty (30) days purchase all of receipt of such offerthe Offered Securities, Seller then, subject to Section 4(c), the Offering Holder shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products for a period of six (6) months from the Project date the ROFO Acceptance Notice was due to be sent to the Offering Holder to Transfer the Offered Securities to any third party, other Person so long as such transfer is in compliance with Section 4(c) for a price not less than the material First Offer Price and on terms and conditions of such sale or transfer are not more less favorable to the third party Offering Holder in the aggregate than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateOffer Notice. Any shares of capital stock of the Corporation not so Transferred shall continue to be subject to the provisions of this Section 4(b).]
Appears in 6 contracts
Samples: Voting and Investment Agreement (Kim Don), Voting and Investment Agreement (Chang Jae), Voting and Investment Agreement (Ichibon Trading, LLC)
Right of First Offer. So long as this Agreement is still in full force and effect and there then exists no Event of Default, if Landlord intends to solicit offers, or to accept an unsolicited offer, to purchase its fee interest or leasehold interest in any Property, Landlord first shall offer to sell the applicable Property or its leasehold interest under a Ground Lease (ithe “Offered Property”) to Tenant at a price to be identified by Landlord in such offer notice (the “Offer Notice”), which Offer Notice shall also include the material terms on which Landlord is offering to sell the Offered Property to Tenant and the estimated closing date. If Seller resizes Tenant shall elect to accept such offer, it shall give Landlord notice of such election within twenty (20) Business Days after the Project due Offer Notice is given. If Tenant elects to Permit Failureaccept such offer within such twenty (20) Business Day period, then Landlord and Tenant shall, for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from after the date of BuyerTenant’s election, engage in good faith negotiations of a mutually acceptable purchase and sale agreement incorporating the terms and conditions in Landlord’s Offer Notice to enter into a new power purchase agreementand such other terms as are necessary for the transaction and agreed by the parties, in substantially acting reasonably. In the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or event Tenant fails to accept SellerXxxxxxxx’s First Offer offer within such twenty (20) Business Day period, or the parties, having negotiated in good faith, fail to execute and deliver a mutually acceptable purchase and sale agreement within such thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyerday period, then Seller may not sell or otherwise transfer, or Landlord shall have the right to accept an offer and/or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering and/or to sell such Offered Property to a third party, provided, however, that: (a) Landlord’s conveyance of the Offered Property shall take place within two hundred seventy (270) days of delivery of the Offer Notice; (b) the purchase price paid for the Offered Property shall be equal to or otherwise transfer greater than 97% of the purchase price included in the Offer Notice; and (c) the other terms of such Products sale taken as a whole shall be substantially the same or better for Landlord than the proposed terms contained in the Offer Notice. Tenant’s rights shall be reinstituted with respect to Buyer on such more favorable terms and conditions Offered Property if Landlord shall not so convey title to the Offered Property to a third party within two hundred seventy (270) days following delivery of the “Revised Offer”Offer Notice. Tenant’s rights under this paragraph shall not apply to (i) the grant of a mortgage lien as collateral in accordance connection with subpart a bona fide financing, (ii) above. If within thirty a foreclosure sale or deed in lieu thereof with respect to bona fide third-party indebtedness (30but not, for the avoidance of doubt, any subsequent transfers of such Offered Property by such foreclosing lender or its designee), (iii) days of receipt of Seller’s Revised Offer the Buyer rejectsa transfer to any entity that is a Controlled subsidiary or Controlling parent of, or fails to accept by Notice to Selleran entity under common Control with, the Revised OfferLandlord, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project (iv) a transfer to any third party on such terms and conditions as set forth entity whose business is managed by The RMR Group LLC, The RMR Group Inc., or any Controlled subsidiary or Controlling Entity of any of the foregoing, or (v) a sale or other transfer pursuant to or in the certificatelieu of taking by eminent domain.]
Appears in 6 contracts
Samples: Lease Agreement (Service Properties Trust), Lease Agreement (Service Properties Trust), Lease Agreement (Service Properties Trust)
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 5 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (a) Each Sponsor shall have a right of first offer over any Common Shares proposed to be Transferred by the other Sponsor, which shall be exercised in the following manner:
(i) If Seller resizes Any such Sponsor shall provide the Project due other Sponsor with written notice (an “Offer Notice”) of its desire to Permit FailureTransfer such Common Shares. The Offer Notice shall specify the number and class of Common Shares such Sponsor wishes to Transfer, then the proposed purchase price for such Common Shares and any other terms and conditions material to the sale proposed by such Sponsor;
(ii) The Sponsor receiving the Offer Notice shall have a period of up to three (3) years from the date on which Seller Notifies Buyer Business Days following receipt of the Contract Capacity Commitment Offer Notice to elect to purchase (“Exclusivity Period”), neither Seller, its successors and assigns, nor or to cause one or more of its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from purchase) all of such Common Shares on the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity terms and conditions set forth in the Cover Sheet, Offer Notice by delivering to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into transferring Sponsor a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failurewritten notice thereof.
(iii) If Xxxxx rejects the Sponsor receiving the Offer Notice elects to purchase (or to cause one or more of its Affiliates to purchase) all of the Common Shares which are the subject of the proposed Transfer within the applicable response period, such purchase shall be consummated within the later of (A) ten (10) Business Days after the date on which the Sponsor(s) notifies the transferring Sponsor of such election or (B) three (3) Business Days after all required governmental approvals have been obtained (or all required governmental waiting periods have elapsed). If the Sponsor receiving the Offer Notice fails to accept Seller’s First Offer elect to purchase all of the Common Shares within thirty the three (303) Business Day period described above, the transferring Stockholder may Transfer such Common Shares at any time within ninety (90) days of receipt of following such offer, Seller shall thereafter be free to sell or otherwise transfer, period at a price which is not less than the purchase price specified in the Offer Notice and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material on other terms and conditions no more favorable, in any material respect, to the purchaser than those specified in the Offer Notice.
(b) In connection with the Transfer of all or any portion of a Sponsor’s Common Shares pursuant to this Section 4.03, the transferring Sponsor shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against such Sponsor, the Common Shares to be transferred shall be free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Agreement and pursuant to applicable federal, state and foreign securities laws), that it is the record and beneficial owner of such sale Common Shares and that it has obtained or transfer are made all necessary consents, approvals, filings and notices from governmental authorities or third parties to consummate the Transfer.
(c) The provisions of this Section 4.03 shall not more favorable apply to the third party than those Transfers of the First Offer Common Shares (i) to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) Permitted Transferees in accordance with subpart Section 4.02, (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejectsmade pursuant to, or fails to accept by Notice to Sellerconsequent upon, the Revised Offer, then Seller will thereafter be free to sell exercise of the tag-along or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as drag-along rights set forth in the certificateSections 4.04 and 4.05, respectively, (iii) made pursuant to a registered public offering or (iv) made pursuant to Rule 144.]
Appears in 5 contracts
Samples: Stockholders' Agreement, Stockholders’ Agreement (Sabre Corp), Stockholders’ Agreement (Sabre Corp)
Right of First Offer. (i) If Seller resizes Buyer exercises its termination right in connection with the Project due to Permit Force Majeure Failure, then for a period of three two (32) years from the date on which Buyer Notifies Seller Notifies Buyer of the Contract Capacity Commitment such termination (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureForce Majeure event.
(iii) If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 5 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three two (32) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the initial Contract Capacity set forth in the Cover SheetSection 3.1(f), to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) . If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) . If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. Seller’s certificate shall be in substantially the form of Appendix IX. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 4 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. The Parties recognize that MAYO may continue to conduct internal research using the Licensed Technology, as it determines in its discretion. In the event that MAYO develops any other application related to the Licensed Technology but outside the scope of the license granted under this Agreement (a “New Product”), MAYO hereby grants to ACORDA a right of first offer with respect to rights for any such New Product in the Field, as follows:
(a) In the event that, at any time during the term of this Agreement, MAYO intends to offer to a third party any rights to any New Product or receives an offer from a third party to acquire any rights to any New Product, MAYO shall first offer such rights to ACORDA, in writing, on terms no less favorable to ACORDA than those to be offered to, or offered by, such third party
(b) Within 30 days after receipt of any such offer, ACORDA shall notify MAYO in writing as to whether it wishes to obtain such rights on such terms. If ACORDA provides timely notice that ACORDA wishes to obtain such rights, then the Parties shall conduct exclusive negotiations in good faith and conclude an agreement incorporating such terms within 120 days thereafter.
(c) In the event that (i) If Seller resizes the Project due ACORDA gives MAYO notice that ACORDA does not wish to Permit Failureobtain such rights, or (ii) ACORDA does not respond to MAYO’s notice within 30 days after receipt thereof, then MAYO shall have the unrestricted right to enter into an agreement with a third party for such rights. Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission.
(d) In the event that the parties enter into negotiations pursuant to Section 2.4(b), but are unable to agree upon the terms of such rights, despite the use of good faith efforts, during the 120-day period set forth in Section 2.4(b), then MAYO shall have the right, for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”)six months thereafter, neither Seller, its successors and assigns, nor its Affiliates shall to enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any with a third party, unless Seller first offers, in writing, to sell to Buyer party for such Products from the Project rights on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not no more favorable to the such third party than those of last offered to ACORDA pursuant to this Section 2.4. In the First Offer to Buyer. If, during the Exclusivity Period, Seller desires event that MAYO wishes to enter into such an obligation or agreement with a on terms more favorable to such third party, Seller MAYO shall deliver reoffer such terms to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) ACORDA in accordance with subpart (iithis Section 2.4. MAYO’s obligation to reoffer to ACORDA any particular New Product it has not licensed to a third party during the six month period contemplated in the first sentence of this Section 2.4(d) above. If within thirty (30) days shall continue for the term of receipt of Seller’s Revised Offer the Buyer rejectsthis Agreement, and if MAYO continues its internal research related to such New Product, it will disclose to ACORDA any material new information, technology, or fails data developed by MAYO related to accept by Notice the New Product to Seller, the Revised Offer, then Seller will thereafter be free permit ACORDA to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateevaluate MAYO’s reoffer.]
Appears in 4 contracts
Samples: License Agreement (Acorda Therapeutics Inc), License Agreement (Acorda Therapeutics Inc), License Agreement (Acorda Therapeutics Inc)
Right of First Offer. (ia) If Seller resizes Except in the Project due case of a Transfer to Permit Failurea Permitted Transferee pursuant to Section 9.2, then for prior to the Transfer of Membership Interests, the Member(s) proposing to Transfer all or any portion of its Membership Interest (the “Offering Member”) must deliver a period of three (3Transfer Notice to the other Member(s) years from the date on which Seller Notifies Buyer who is not an Affiliate of the Contract Capacity Commitment Offering Member at least sixty (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into 60) Days prior to the proposed Transfer. The other Member(s) who is not an obligation or agreement to sell or otherwise transfer any Products from the Project in excess Affiliate of the Contract Capacity Commitment, up Offering Member shall have the option to purchase all of the Contract Capacity Membership Interests proposed to be Transferred for the cash purchase price set forth in the Cover Sheet, Transfer Notice and pursuant to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same other terms and conditions as set forth in this Agreement, subject to permitted modifications identified in subpart . The other Member(s) who is not an Affiliate of the Offering Member shall have sixty (ii60) below, Days from receipt of the Transfer Notice (the “First OfferTransfer Acceptance Period”) in which to exercise its option to purchase all of the Membership Interests pursuant to this Section 9.3(a) by providing written notice of exercise of the option to the Offering Member and Buyer either accepts or rejects such First Offer in accordance with to the provisions hereinCompany.
(iib) If Buyer accepts In the First Offerevent that, Buyer shall Notify Seller within thirty (30) days of receipt at the end of the First Offer subject Transfer Acceptance Period, the other Member(s) who is not an Affiliate of the Offering Member has not elected to Buyer’s management approval and CPUC Approval (“Buyer’s Notice purchase all of First Offer Acceptance”)the Membership Interests proposed to be Transferred, and then the Parties Offering Member shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transferconsummate the transaction described in the Transfer Notice, provided, that within 90 days after the end of the Transfer Acceptance Period, a definitive agreement is executed for the sale of such Membership Interests, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of (including price) in such sale or transfer agreement are not no more favorable to the purchaser than those set forth in the Transfer Notice. Prior to the execution of such definitive agreement, the Offering Member shall not grant exclusivity to a prospective third party than those purchaser (the “Third Party Purchaser”) to the extent such grant of exclusivity would prohibit or restrict the Offering Member from entertaining, negotiating or accepting an offer by another Member in respect of the First Offer subject Membership Interest. In the event a Member exercises the option to Buyerpurchase under Section 9.3(a), but such Member fails to tender the required consideration at the closing, in addition to being entitled to complete the proposed transaction, the Offering Member shall have all rights and remedies against the other Member available for breach of contract.
(c) The parties shall use their reasonable efforts to close any purchase under Section 9.3 as promptly as possible after (i) the other Members provide written notice of the exercise of their option under Section 9.3(a) or (ii) the Offering Member executes a definitive agreement as contemplated by Section 9.3(b), as applicable. IfAt the closing, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller Offering Member shall deliver to Buyer a certificate the purchaser an executed assignment of an authorized officer of Seller (A) summarizing the material terms subject Membership Interest satisfactory in form to counsel for the Company, and conditions of the purchaser shall deliver the purchase price in cash or immediately available funds. The Offering Member and the purchaser each shall execute and deliver such agreement and (B) certifying that other documents as may reasonably be requested by the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyerother. If Seller is unable to deliver such a certificate to Buyerthe closing of any purchase by the other Members under Section 9.3(a) does not occur within one (1) year after the expiration of the Transfer Acceptance Period, then Seller the right to close on the purchase shall lapse and the Offering Member may not sell or otherwise transfer, or enter into an agreement the Membership Interests proposed to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer be Transferred in accordance with Section 9.3(b) (on such more favorable terms and conditions (including price) no more favorable to the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as purchaser than those set forth in the certificateTransfer Notice) as if the other Members had elected not to purchase the Offering Member’s interests.]
(d) In connection with a reasonable due diligence investigation conducted by the Third Party Purchaser in relation to a Transfer pursuant to Section 9.3(b) by the Offering Member, the parties hereby agree that they shall cause the Company as soon as practicable after the giving of a transfer notice to prepare a data room and otherwise to provide reasonable access (during regular business hours upon reasonable notice) to the offices, properties, plants, other facilities, books and records, officers, directors, employees, agents, financial advisors, accountants and counsel of the Company and furnish such additional financial and operating data and other information regarding the business, operations, assets, liabilities and financial condition of the Company as the Offering Member or the Third Party Purchaser may reasonably request, subject to such Third Party Purchaser signing a customary confidentiality agreement with the Offering Member and the Company regarding any information to be delivered to such Third Party Purchaser. Such access shall continue until the closing of the sale to the Third Party Purchaser, or termination of the sales process with such Third Party Purchaser.
Appears in 4 contracts
Samples: Master Agreement (Constellation Energy Group Inc), Operating Agreement (Constellation Energy Group Inc), Operating Agreement (EDF Inc.)
Right of First Offer. (i) If Seller resizes Buyer exercises its termination right in connection with the Project due to Permit Force Majeure Failure, then for a period of three two (32) years from the date on which Buyer Notifies Seller Notifies Buyer of the Contract Capacity Commitment such termination (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) . If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) Force Majeure event. If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. Seller’s certificate shall be in substantially the form of Appendix IX. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 4 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three two (32) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 3 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (ia) If Seller resizes the Project due to Permit FailureNotwithstanding Section 2.1(a), then for in connection with a period of three (3) years from the date on which Seller Notifies Buyer Third Party Tender Offer or following expiration of the Contract Capacity Commitment Holding Period, either Purchaser may Transfer, directly or indirectly, any or all of its Stock (“Exclusivity Period”the "Offered Shares"), neither Sellerprovided that, unless such Transfer is a Permitted Transfer, such Purchaser (collectively with its successors and assignsAffiliates, nor its Affiliates the "Offering Stockholder") shall enter into an obligation or agreement first offer (the "First Offer") to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up Offered Shares to the Contract Capacity set forth in other Purchaser (such other Purchaser is referred to herein as the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii"Rightholder") below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinthis Section 2.2 and otherwise in compliance with this Agreement (other than Section 2.1 hereof).
(iib) If Buyer accepts the First Offer, Buyer The Offering Stockholder shall Notify Seller within thirty (30) days of receipt send written notice of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of the "First Offer Acceptance”)Notice") to the Company and the Rightholder, and then the Parties which First Offer Notice shall have not more than ninety (90i) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided state that the Contract Price may only be increased Offering Stockholder proposes to reflect Seller’s documented incremental costs in overcoming effect a Transfer of shares of Stock and the Permit Failure.
number of the Offered Shares and (iiiii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days contain a copy of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are the First Offer (including, without limitation, the purchase price for the Offered Shares, which shall be payable by the Rightholder solely in cash (the "Offer Price")). In the event that the Offering Stockholder shall not more favorable have delivered another First Offer Notice pursuant to this Section 2.2 within one hundred and eighty (180) days prior to the third party than those delivery of such First Offer Notice then if (x) the Market Value of such Offered Shares in such First Offer as of the close of business on the date of the First Offer Notice is less than $10,000,000 (a "Small Offering") or (y) the Offering Stockholder has requested demand or incidental registration of the Offered Shares pursuant to Buyer. Ifthe Registration Rights Agreement ("Registration"), during then the Exclusivity PeriodOffering Stockholder may elect to offer the Offered Shares at Market Value as of the close of business on the date of the First Offer Notice, Seller desires to enter into an obligation or agreement with by including a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions statement of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered election in the First Offer Notice, whereupon the Market Value of such Offered Shares on such date shall be considered the Offer Price. In the event that the Offering Stockholder desires to Buyer. If Seller is unable Transfer the Offered Shares pursuant to deliver a Third Party Tender Offer (such proposed Transfer being referred to herein as a certificate to Buyer"Tender"), then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from Offering Stockholder shall so notify the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth Rightholder in the certificate.]First Offer Notice, which must be received by the Rightholder at least ten (10) Business Days prior to the scheduled expiration or termination of such Third Party
Appears in 3 contracts
Samples: Governance Agreement (Time Warner Inc/), Governance Agreement (Cdnow Inc/Pa), Governance Agreement (Time Warner Inc/)
Right of First Offer. In the event a Member desires to Transfer all or any part of its Interest, such Members (ithe “Selling Member”) If Seller resizes shall first deliver a written notice (the Project due “Section 11.1 Notice”) to Permit Failure, then for a period of three the other Member (3the “Second Member”) years from which notice shall specify the date on which Seller Notifies Buyer portion of the Contract Capacity Commitment Selling Member’s Interest to be sold (the “Exclusivity PeriodOffered Interest”), neither Seller, . Within thirty (30) days after its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess receipt of the Contract Capacity CommitmentSection 11.1 Notice, up the Second Member shall have the right to the Contract Capacity set forth in the Cover Sheet, offer to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, purchase (the “First Offer”) and Buyer either accepts or rejects such all, but not less than all, the Offered Interest at a price payable only in case (the “First Offer Price”) and on such other terms and conditions as shall be set forth in accordance with the provisions herein.
First Offer. Within thirty (ii30) days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If Buyer the Selling Member accepts the First Offer, Buyer the Selling Member shall Notify Seller within thirty sell, and the Second Member shall purchase, the Offered Interest at a closing to be held at a time not later than sixty (3060) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of receipt Liens) after the Selling Member’s acceptance of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of First Offer Acceptance”), all Liens which may have been imposed on the Offered Interest and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to connected with the third party than those financing or operation of the Company itself, against payment of the First Offer Price. In order to Buyer. Ifcomply with applicable regulatory requirements, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with purchasing Member may designate (i) a third partyparty to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, Seller or (ii) a third party reasonably acceptable to the Selling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall deliver have one hundred and twenty (120) days (or such longer period, if any, required to Buyer obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a certificate of an authorized officer of Seller (A) summarizing price per share in cash greater than the material First Offer Price and in all other respects upon terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return no less favorable than that offered those specified in the First Offer to BuyerOffer. If Seller is unable to deliver no such a certificate to Buyer, then Seller may not sell sale occurs within such 120-day period (or otherwise transfer, or enter into an agreement to sell or otherwise transferlonger period as described above), the Products from Offered Interest shall again be subject to all of the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as restrictions set forth in the certificatethis Section 11.1(b).]
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Cinergy Corp), Limited Liability Company Agreement (Cinergy Corp), Limited Liability Company Agreement (Cinergy Corp)
Right of First Offer. (ia) If Seller resizes WM shall have the Project due exclusive right of first offer to Permit Failuresupply Genomatica, then its Affiliates and its Third Party Licensees (the “Supplied Parties”) with such quantities of Waste as are necessary to satisfy 100% of their Waste requirements for the production of […***…] within the Field and Territory using the Program Technology, including any research & development or pilot production requirements (the “Feedstock Waste”). Upon determination by a Supplied Party that Feedstock Waste (or additional quantities of Feedstock Waste) will be required, the Supplied Party shall deliver to WM a written notice (the “First Offer Notice”) stating, among other things, the location of the facility requiring Feedstock Waste and the amount of anticipated requirements of Feedstock Waste for a specified period of three time (3) years from the date on which Seller Notifies Buyer “Feedstock Requirements”)]. Upon receipt of the Contract Capacity Commitment First Offer Notice, WM shall have the right within 15 days following receipt of the First Offer Notice (the “Exclusivity First Offer Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement ) to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, make a written offer (the “First Offer”) and Buyer either accepts to supply all or rejects such a portion of the Feedstock Waste to satisfy the Feedstock Requirements, which First Offer in accordance with shall set forth the provisions herein.
terms and conditions whereby WM is willing to provide the Feedstock Waste […***…]. If WM delivers to the Supplied Party the First Offer within the First Offer Period, the Supplied Party may either accept or reject the First Offer within the 15-day period following the Supplied Party’s receipt of the First Offer (ii) the “First Offer Acceptance Period”). If Buyer the Supplied Party accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from proceed with the date execution and delivery of Buyer’s Notice to enter into a new power purchase agreement, supply agreement in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failureaccordance with Section 5.
(b) If (i) WM fails to make a First Offer during the First Offer Period, (ii) the Supplied Party rejects the First Offer or (iii) If Xxxxx rejects or fails to accept Seller’s the First Offer within thirty (30Acceptance Period expires without the Supplied Party’s acceptance of the First Offer, then the First Offer and all rights under Section 3.1(a) days of receipt of such offershall expire and the Supplied Party shall be entitled to solicit offers from third parties, Seller shall thereafter be free to sell or otherwise transfer, negotiate with third parties and to enter into agreements to sell or otherwise transfer, any Products from with third parties for the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those supply of the First Offer Feedstock Waste to Buyer. Ifsatisfy the Feedstock Requirements, during the Exclusivity Periodin accordance with Section 3.2, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller as applicable.
(Ac) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered If WM indicates in the First Offer that it is only able to Buyer. If Seller is unable to deliver such a certificate to Buyerpartially fulfill the Feedstock Requirements, then Seller may not sell or otherwise transfer, or enter into an agreement the Supplied Party shall be entitled to sell or otherwise transfer, the Products solicit offers from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms third parties and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, negotiate and to enter into agreements or commitments with third parties for the supply of any Feedstock Waste it requires in excess of the Feedstock Waste supplied by WM in order to sell or otherwise transfer, satisfy such Products from the Project to any third party on such terms and conditions as set forth in the certificateexcess Feedstock Requirements.]
Appears in 3 contracts
Samples: Supply Rights Agreement, Supply Rights Agreement (Genomatica Inc), Supply Rights Agreement (Genomatica Inc)
Right of First Offer. (i) If Seller resizes Buyer exercises its termination right in connection with the Project due to Permit Force Majeure Failure, then for a period of three (3) years from the date on which Buyer Notifies Seller Notifies Buyer of the Contract Capacity Commitment such termination (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureForce Majeure event.
(iii) If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. Seller’s certificate shall be in substantially the form of Appendix IX. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 3 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Right of First Offer. (ia) Black may, if he desires to sell, transfer, assign or otherwise dispose of any shares of First Refusal Stock to any person other than the Company and does not have a particular transaction or a particular buyer in mind, make a written offer (the "OFFER") to FFIC (pursuant to the terms of Section 7.1 of this Agreement) to sell all or part of his First Refusal Stock at a stated price (the "OFFER PRICE");
(b) If Seller resizes FFIC does not agree to pay the Project due Offer Price, it must within 15 days after it receives the Offer (the "RESPONSE DUE DATE") either state a price (in a notice pursuant to Permit Failurethe terms of Section 7.1 of this Agreement) at which it is willing to purchase the shares (the "COUNTER-OFFER PRICE") or state that it is not interested in purchasing the shares which are the subject of the Offer in a notice pursuant to the terms of Section 7.1 of this Agreement;
(c) If Black is unwilling to accept the Counter-Offer Price, then Black shall be free for a period of three (3) years from 180 days after the date on Response Due Date to sell the shares which Seller Notifies Buyer are the subject of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on at any price which exceeds 105% of the Counter-Offer Price free and clear of any further obligations under Sections 2 and 3 of this Agreement;
(d) If FFIC declines to state a Counter-Offer Price, Black may for a period of 180 days after the Response Due Date sell the shares which are the subject of the Offer to a third party at 95% or more of the Offer Price free and clear of any further obligations under Sections 2 and 3 of this Agreement;
(e) If FFIC does not respond by the Response Due Date to the Offer, such terms and conditions silence shall be deemed the same as set forth in a statement that FFIC is unwilling to purchase the certificatesubject shares at the Offer Price, thereby freeing Black for a period of 180 days after the Response Date to sell the shares which are the subject of the Offer at 95% or more of the Offer Price.]
Appears in 2 contracts
Samples: Right of First Offer and First Refusal Agreement (Crop Growers Corp), Right of First Offer and First Refusal Agreement (Firemans Fund Insurance Co)
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, Any Shareholder (the “First Offeror”) who desires to Transfer all or any of its Common Shares shall first give notice of such proposed Transfer (the “Notice”) to the other Shareholder (the “Offeree”) and to the Corporation and shall set out in the Notice:
(1) the number of Common Shares that the Offeror desires to Transfer (the “Offered Shares”); and
(2) the terms upon which the Offeror desires to Transfer the Offered Shares, including the amount and form of consideration to be paid for the Offered Shares and all of the terms pursuant to which such consideration shall be paid (including, but not limited to, all payment terms and a description of the security for any debt to be issued). If, prior to delivery of the Notice, the Offeror has received a bona fide offer (an “Offer”) from a Third Party Offeror to purchase the Offered Shares which Offer has been accepted or remains open for acceptance, or the Offeror has solicited or entered discussions or negotiations with a Third Party Offeror concerning a possible sale of the Offered Shares by such Third Party Offeror (unless such discussions or negotiations have been discontinued and Buyer either accepts at the time of delivery of the Notice the Offeror does not propose to resume discussions or rejects negotiations with such First Third Party Offeror concerning a possible sale of the Offered Shares or anticipate that discussions or negotiations with such Third Party Offeror concerning such a sale will be resumed by such Third Party Offeror), the Notice will contain the name and address of such Third Party Offeror and be accompanied by a copy of the Offer or a summary setting out in accordance with reasonable detail the provisions herein.
(ii) If Buyer accepts details and status of such discussions or negotiations, as the First case may be, and if, after delivery of the Notice but prior to the expiry of the period set out in section 5.5 below, the Offeror receives such an Offer, Buyer shall Notify Seller within thirty (30) days of receipt or solicits or enters such discussions or negotiations, the Offeror will promptly deliver to the Offeree such Offer or summary of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt status of such offerdiscussions or negotiations, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller case may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatebe.]
Appears in 2 contracts
Samples: Shareholders’ Agreement (Intrawest Resorts Holdings, Inc.), Shareholders’ Agreement (Intrawest Resorts Holdings, Inc.)
Right of First Offer. 31.01 If Landlord desires to sell its interest in the Premises to a third-party (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity PeriodTransfer”), neither Sellerat any time on or before the expiration of this Lease, its successors and assigns, nor its Affiliates Landlord shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offersnotify Tenant, in writing, at least thirty (30) days in advance of its intent to sell transfer the Premises (the “Transfer Notice”), together with a term sheet setting forth, in reasonable detail, the purchase price (the “Offered Price”) and the other material terms of the proposed Transfer (the “Purchase Offer”). Tenant shall have the right to Buyer such Products from purchase the Project on Leased Premises at the same Offered Price and upon the other terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, of the Purchase Offer (the “Right of First Offer”) and Buyer either accepts or rejects such First Offer in accordance with by providing written notice to the provisions herein.
Landlord (iithe “Exercise Notice”) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of after Tenant’s receipt of the First Offer subject to Buyer’s management approval and CPUC Approval Transfer Notice (the “Buyer’s Transfer Notice of First Offer AcceptancePeriod”), in which case the Landlord and then the Parties Tenant shall have not more proceed to close such transaction during normal business hours on a date and at a place to be agreed upon, which shall be no later than ninety sixty (9060) days from after delivery of the date of Buyer’s Exercise Notice (the “Outside Date”). If Tenant elects not to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects Premises or fails to accept Seller’s First Offer within thirty (30) days notify Landlord of receipt of such offer, Seller shall thereafter be free its election to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from purchase the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable Premises prior to the third party than those expiration of the First Offer to Buyer. If, during the Exclusivity Transfer Notice Period, Seller desires to enter into an obligation or agreement Landlord may proceed with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with Transfer; provided, however, that (i) the third party will not provide Seller with a lower rate Transfer is made in exchange for consideration worth no less than ninety percent (90%) of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or Offered Price and otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable substantially similar terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as those set forth in the certificatePurchase Offer, (ii) such Transfer is completed within one hundred eighty (180) days of the Purchase Offer (provided, however, if Landlord has entered into a purchase agreement within such one hundred eighty (180) day period, and provided notice thereof to Tenant within such one hundred eighty (180) day period, Landlord shall have an additional sixty (60) day period to complete the sale of the Premises) and (iii) Tenant shall have a continuing first right to purchase as provided above. In the event that the Transfer will not satisfy the requirement set forth in clause (i) above, Tenant shall have a period of five (5) business days following receipt of notice from Landlord of the revised terms of the proposed transfer, to purchase the Premises for the revised terms in accordance with the terms of this Article 31.]
31.02 If Tenant timely elects to purchase the Leased Premises and thereafter fails to consummate the purchase pursuant to the terms, conditions and time periods set forth in the Purchase Offer and this Lease, except to the extent of a default by Landlord under the Purchase Offer, then this Right of First Offer shall terminate and be of no further force and effect an shall not apply to any further sales of the Premises.
Appears in 2 contracts
Samples: Lease (Federal Signal Corp /De/), Lease (Federal Signal Corp /De/)
Right of First Offer.
(a) If PGE terminates this Agreement due to a Seller Event of Default, neither Seller nor Seller’s Affiliates may sell, market or deliver any quantity of the Products associated with or attributable to the Project to a party other than PGE for a period of two (2) years if Seller Event of Default is prior to the Commercial Operation Date or six (6) months if Seller Event of Default is after the Commercial Operation Date following the termination date of this Agreement, unless before selling, marketing or delivering such Products, or entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Products on terms and conditions materially similar to the terms and conditions contained in this Agreement (excluding price, which may be adjusted to include updated costs, including, but not limited to, materials, labor and costs of capital).
(i) If PGE fails to accept an offer made by Seller resizes the Project due pursuant to Permit Failure, then for a period of three Section 5.8(a) within forty-five (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3045) days of Buyer’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of the First Offer subject Products associated with or attributable to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party and on any terms in its sole discretion. Buyer’s acceptance of such an offer within forty-five (45) days of Buyer’s receipt thereof may be conditioned on PGE obtaining approval from Buyer’s Board of Directors or the Oregon Public Utility Commission.
(ii) Neither Seller nor Seller’s Affiliates may sell or transfer the Storage Facility, or any part thereof, or land rights or interests in the Site so long as the limitations contained in this Section 5.8 apply, unless the transferee agrees in writing to be bound by the terms and conditions as set forth in this Section 5.8.
(iii) Subject to Section 12.4(a)(i) Seller shall indemnify and hold PGE harmless from all benefits lost and other damages sustained by PGE as a result of any breach by Seller of its covenants contained within this Section 5.8. This provision shall survive the certificatetermination of this Agreement.]
Appears in 2 contracts
Samples: Wholesale Renewable Power and Storage Capacity Purchase Agreement, Wholesale Renewable Power and Storage Capacity Purchase Agreement
Right of First Offer. 5.1. The Parties agree that, as of the Closing, the sale by either Party of its shares in the Company which constitute at such time 5% or more of the total issued and outstanding shares of the Company on an as-issued basis (iin one single transaction or in aggregate from a series of related transactions, occurring within a rolling six (6) month period) to any third party (a “Potential Buyer”), other than in the course of ordinary trade in the market, shall be subject to a right of first offer, as set forth below (such sale, a “Qualified Sale”).
5.2. A Party wishing to perform a Qualified Sale (the “Selling Party”) shall provide the other Party (the “Non-Selling Party”) with a notice (the “Notice”) detailing the number of shares it wishes to offer (the “Selling Shares”) and the consideration.
5.3. The Non-Selling Party shall have the first right and option, but not obligation, to present the Selling Party with an offer to purchase all of the Selling Shares pursuant to the Notice (the “Offer”) within thirty (30) calendar days from the receipt of the Notice (the “Acceptance Period”).
5.5. If Seller resizes the Project due Non-Selling Party does not purchase all the Selling Shares in accordance with the Offer, or does not respond to Permit Failurethe Offer within the Acceptance Period, then for a period of three the Selling Party shall be entitled, within one hundred and fifty (3150) years from calendar days (the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Third Party Offer Period”), neither Seller, its successors and assigns, nor its Affiliates shall to enter into an obligation or a binding agreement to sell or otherwise transfer any Products from regarding the Project in excess sale of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, Selling Shares (all or part thereof) to any third party, unless Seller first offersprovided that the sale of the Selling Shares shall be made under the terms of the Offer, or at a higher price.
5.6. If the Acceptance Period has passed with respect to a third party and the Selling Party has not yet sold or transferred to any third party the Selling Shares in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Third Party Offer Period in accordance with the provisions hereinconditions set out in Section 5.5 above, then the Selling Party will not be entitled to transfer or sell to third parties the Selling Shares, unless all the terms and conditions set out in this Section 5 are re-applied.
5.7. Notwithstanding the above, if the Potential Buyer is deemed a “Competitor” (as defined below), then the Selling Party shall be required to disclose the name of such Potential Buyer and seek prior written consent from the Non-Selling Party to proceed with the Qualified Sale, even if the Non-Selling Party does not respond within the Acceptance Period or the Acceptance Period lapses.
5.8. For the purpose of this Agreement, “Competitor” shall mean either: (i) an entity which competes in a substantial manner with the Company’s core business or (ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered entity which is in the First Offer to Buyer. If Seller industry of test & measurements, is unable to deliver such headquartered in PRC (including Hong Kong and Macao) or Taiwan and the majority of its business competes in a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance substantial manner with subpart (ii) above. If within thirty (30) days of receipt of SellerChroma’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatecore business.]
Appears in 2 contracts
Samples: Shareholders Rights Agreement (Chroma Ate Inc.), Shareholders Rights Agreement (PCB LTD)
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceNotice”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx Buyer rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 2 contracts
Right of First Offer. Subject to Section 3.2, at any time the Founder proposes to Transfer, whether in a single transaction or a series of transactions, Company Securities legally or beneficially owned by him (idirectly or indirectly through any intermediary), which constitutes a Change of Control, the Founder shall first make an offer of such Company Securities to the Investors on the following terms:
(a) If Seller resizes the Project due Founder shall first deliver to Permit Failurethe Company and each Investor a written notice (a “Sale Notice”), then which shall state the Founder’s irrevocable offer to Transfer Company Securities, the amount and type of Company Securities to be Transferred (the “Subject Securities”), the proposed purchase price per share of the Subject Securities (including the cash value of any non-cash consideration), the terms of payment of such purchase price and a summary of the other material terms of the proposed Transfer. Each Investor shall have the right and option, for a period of three fifteen (315) years from the date on which Seller Notifies Buyer Business Days after delivery of the Contract Capacity Commitment Sale Notice (the “Exclusivity Offer Acceptance Period”), neither Seller, to irrevocably elect to either (i) exercise its successors right of first offer and assigns, nor purchase all of its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess ROFO Percentage of the Contract Capacity Commitment, up to Subject Securities at the Contract Capacity set forth purchase price and on the terms stated in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart Sale Notice; or (ii) belowexercise its Tag-Along Right pursuant to Section 3.4. Each Investor’s acceptance hereunder shall be made by delivering a written notice setting forth its irrevocable election to the Founder within the Offer Acceptance Period. For the avoidance of doubt, with respect to any proposed Transfer that contains non-cash consideration, Alibaba shall be entitled to pay cash in lieu of the cash value of the non-cash consideration included in the Sale Notice.
(b) If effective acceptance shall not be received pursuant to Section 3.3(a), then the Founder may Transfer the Subject Securities to any purchaser other than an Investor Competitor (the “First OfferProposed Purchaser”) at a price not less than the price, and Buyer either accepts on other terms not more favorable to such Proposed Purchaser than the terms stated in the Sale Notice at any time within sixty (60) days after the expiration of the Offer Acceptance Period (the “Sale Period”). In the event that the Subject Securities (i) are not Transferred by the Founder during the Sale Period or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts are not Transferred to the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of purchaser at a price not less than the First Offer subject to Buyer’s management approval price and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material on other terms and conditions of such sale or transfer are not more favorable to the third party purchaser thereof than those the terms stated in the Sale Notice, the right of the First Founder to Transfer the Subject Securities shall expire and the obligations of this Sections 3.3 shall be reinstated.
(c) The Transfer of Subject Securities to either (or both) of the Investors pursuant to an effective election to purchase all of such Investor’s ROFO Percentage of the Subject Securities shall be consummated contemporaneously at the offices of the Company on the later of (i) a mutually satisfactory Business Day within fifteen (15) days after the expiration of the Offer to Buyer. If, during the Exclusivity Acceptance Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty the fifth (305th) days of Business Day following the receipt of Seller’s Revised Offer the Buyer rejectsany regulatory approvals applicable to such Transfer, or fails at such other time and/or place as the parties to accept by Notice such Transfer may agree. The delivery of certificates or other instruments evidencing such Subject Securities duly endorsed for transfer shall be made on such date against payment of the purchase price for such Subject Securities.
(d) The requirements of this Section 3.3 shall not apply to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transferany Permitted Founding Shareholder Transfer. The requirements of this Section 3.3 are in addition to, and to enter into agreements to sell or otherwise transfernot in limitation of, such Products from the Project to any third party other restrictions on such terms and conditions as set forth Transfers of Company Securities contained in the certificatethis Agreement.]
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Alibaba Group Holding LTD)
Right of First Offer. Comcast and Liberty shall each have a right of first offer (ia “Right of First Offer”) to purchase the other Member’s Membership Interests in accordance with this Section 11.03. If Seller resizes either Liberty or Comcast desires to Transfer its Membership Interest to a third party (such electing party being referred to herein as the Project due “Offeror Member”), the Offeror Member shall deliver to Permit Failurethe other Member (the “Offeree Member”) a written offer (an “Offer”) pursuant to which the Offeror Member will offer to [***] of such Membership Interest to the Offeree Member for the Purchase Price, provided, however, that for purposes of this Section 11.03, in determining the Fair Market Value, the [***]. Within ten (10) Business Days after delivery by the Offeror Member to the Offeree Member of the Offer, the Offeror Member shall initiate the Appraisal Process. The Offeree Member shall notify the Offeror Member in writing, not later than ninety (90) calendar days following the Final Appraisal Date, as to whether it desires to purchase such Membership Interest (or in the case of an Offer made by Comcast to Liberty, whether Liberty elects to exercise its Tag-Along Right pursuant to Section 11.03(d)) (any failure on the part of the Offeree Member to respond in writing to the Offer within such ninety (90) calendar day period to be deemed to constitute an election on the part of the Offeree Member not to purchase, and in the case of an Offer made to Liberty, an election not to exercise the Tag-Along Right). If the Offeree Member shall elect (or shall be deemed to have elected) not to purchase such Membership Interest, the Offeror Member shall be entitled, at any time during the twelve month period immediately following such election (or deemed election) (the “Outside Third-Party Sale Date”), to sell such Membership Interest, at a price not less than [***] percent ([***]%) of the Purchase Price. If the Offeror Member shall be entitled, pursuant to this Section, to sell such Membership Interest, but shall fail to effect such sale prior to the Outside Third-Party Sale Date, then (1) the Offeror Member shall be obligated to re-offer such Membership Interest to the Offeree Member in accordance with the applicable provisions of this Section 11.03(a) above prior to selling such Membership Interest to a Third-Party Purchaser and (2) the Offeror Member shall have no right to initiate a sale of its Membership Interests to a Third-Party Purchaser or make an Offer or exercise a Call Right or Put Right (whichever is applicable) for a period of three two (32) years from after the date on which Seller Notifies Buyer Outside Third-Party Sale Date. If the Offeror Member shall be entitled, pursuant to this Section 11.03(a), to sell such Membership Interest, but desires to sell such Membership Interest for less than [***] percent ([***]%) of the Contract Capacity Commitment Purchase Price, the Offeror Member shall be obligated to re-offer such Membership Interest to the Offeree Member at such lesser price, in which event the Offeree Member shall respond within sixty (“Exclusivity Period”60) calendar days after such re-offer. If the Offeree Member shall timely accept the Offer, the Offeror Member shall Transfer the subject Membership Interest to the Offeree Member (or if the Comcast Tenancy Requirement is satisfied, any designee of the Offeree Member that is not a Competitor of Comcast), neither Sellerand the Offeree Member shall accept such Membership Interest and assume the associated obligations hereunder, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from on the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity terms set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms Offer and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer otherwise in accordance with the provisions herein.
(ii) If Buyer accepts of Section 8.05 hereof, as if the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of Offeror Member were the First Offer subject to Buyer’s management approval Selling Member and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from Offeree Member were the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially Purchasing Member with the same form force and effect as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as provisions had been set forth in the certificateOffer in their entirety. No designation by the Offeree Member to a third party shall relieve the Offeree Member of its obligations for the payment of the Purchase Price or other obligations of the Offeree Member hereunder.]
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (Liberty Property Limited Partnership), Limited Liability Company Operating Agreement (Liberty Property Limited Partnership)
Right of First Offer. (i) If Seller resizes Owner shall elect to sell the Project due Hotel, Owner shall first give written notice to Permit FailureManager of such election, then for a period of three (3) years from which notice will contain the date on which Seller Notifies Buyer offering price and other major business terms of the Contract Capacity Commitment proposed sale (the “Exclusivity PeriodSale Notice”), neither Seller, its successors and assigns, nor . Manager or its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within have thirty (30) days of after receipt of the First Offer subject Sale Notice (the “Exercise Period”) to Buyer’s management approval elect to purchase the Hotel for ninety-seven percent (97%) of the offering price and CPUC Approval (“Buyer’s Notice on the other terms reflected in the Sale Notice. If Manager or one of First Offer Acceptance”)its Affiliates so elects to purchase the Hotel, and then the Parties Manager or such Affiliate shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of after such offer, Seller shall thereafter be free to sell or otherwise transfer, and election (the “Negotiation Period”) to enter into agreements a purchase and sale agreement for such purchase, which purchase and sale agreement shall provide for, among other things, (i) the payment by Manager or such Affiliate of a non-refundable deposit in an amount equal to sell two percent (2%) of the purchase price and (ii) the closing of the purchase and sale on a date that is no later than sixty (60) days after the date of the parties’ execution and delivery of the purchase and sale agreement. After Manager’s (or otherwise transferits Affiliate’s) election to purchase the Hotel and until the earlier of the execution of a purchase and sale agreement or the end of the Negotiation Period, Owner and Manager agree to negotiate the terms of such purchase and sale agreement. Owner agrees that Manager and/or its Affiliates may conduct due diligence on the Hotel before and after the transmittal of the Sale Notice. If Manager does not elect to purchase the Hotel, the parties have not entered into a binding purchase and sale agreement within the Negotiation Period or Manager or its Affiliate fails to close under a purchase and sale agreement by the specified closing date (other than as a result of a breach by Owner or any Products from of its Affiliates of the Project provisions of the purchase and sale agreement or any action by Owner or any of its Affiliates constituting bad faith), Owner shall be entitled, without Manager’s consent, to consummate the proposed sale with any third party. If either party shall default under this Section, so long as the material other party shall be entitled to specific performance. No exercise or waiver by Manager of any of its rights hereunder shall modify, abridge, impair or affect any of Manager’s rights under any of the other terms or provisions of this Agreement. Any sale, transfer or other conveyance of all or any part of the Hotel or Owner’s interest therein in violation of this Section shall be null and void. The terms and conditions provisions of this Section shall be in addition to and cumulative of all of the other terms and provisions of this Agreement, including, without limitation, the terms and provisions of Section 21.2. The provisions of this Section 21.4 shall survive any termination or expiration of this Agreement for a period of six (6) months following the date of such sale termination or transfer are not more favorable expiration with respect to the third party than those any offer of the First Offer to BuyerHotel for sale during such six (6)—month period. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller This Section 21.4 shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project apply to any third party on such terms and conditions as set forth in transfer of the certificateHotel to an Affiliate of Owner.]
Appears in 2 contracts
Samples: Management Agreement (Capital Lodging), Management Agreement (Capital Lodging)
Right of First Offer. If at any time Borrowers propose to enter into any type of financing to refinance in full the outstanding Obligations (i) If Seller resizes the Project due to Permit Failurea "FINANCING"), then Borrowers shall, before entering into such Financing with any third party, notify the Agent in writing of their desire to enter into a Financing, such notice (the "PROPOSAL NOTICE") to set out with particularity the type of Financing that the Borrowers wish to consummate. Agent shall have five (5) Business Days (the "ACCEPTANCE PERIOD") after Receipt of the Proposal Notice to inform the Borrowers of its willingness to provide the Financing (the "ACCEPTANCE NOTICE"), which Acceptance Notice shall be accompanied by a term sheet or proposal letter setting forth in detail the proposed terms and conditions upon which Agent would be prepared to provide the Financing. After the receipt of the Acceptance Notice, the Borrowers shall have the right, within five (5) Business Days (the "NEGOTIATION PERIOD") to accept such proposal, during which period the Agent and the Borrowers may negotiate in good faith the terms of the Agent's proposal and to execute a mutually acceptable commitment letter. If no Acceptance Notice is received by Borrowing Agent by the end of the Acceptance Period or if the parties are unable to agree to the terms of the Financing by the end of the Negotiation Period, then Borrowers shall have the right, for a period of three one hundred eighty (3180) years from days following the date on which Seller Notifies Buyer expiration of the Contract Capacity Commitment later of the Acceptance Period or the Negotiation Period (“Exclusivity Period”the "CLOSING PERIOD"), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from offer the Project in excess of the Contract Capacity Commitment, up Financing to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateProposal Notice on terms and conditions which are, in the aggregate, more beneficial to the Borrowers than the terms set forth in the Acceptance Notice. If the Borrowers are not able to consummate such Financing prior to the expiration of the Closing Period, the Borrowers shall not be entitled to consummate the Financing with a third party without again complying with this Section 6.15. Any failure by Agent or any Lender to issue an Acceptance Notice shall not be construed as a waiver of any of the terms, covenants or conditions of any of the Loan Documents. For purposes of this Section 6.15, "Lender" shall include CapitalSource Finance LLC and any of its parents, subsidiaries or Affiliates.]
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc), Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Right of First Offer. Each of the Losi Entities and Remy agree that beginning with the Effective Date and continuing until termination:
(a) If any of the Losi Entities (for purposes of this Section 4(a), the "OFFEROR") desires to sell or transfer any of its Stock to anyone other than a Permitted Transferee, the Offeror shall follow the procedures set forth below:
(i) If Seller resizes The Offeror shall deliver a written notice (a "FIRST OFFER NOTICE") to Remy, which notice shall set forth all material terms and conditions, including, but not limited to, the Project due to Permit Failure, then for a period number of three shares offered (3the "OFFERED SHARES") years from and the date purchase price on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement Offeror desires to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinOffered Shares.
(ii) If Buyer accepts During the fifteen (15) day period after a First OfferOffer Notice is duly given (the "REMY OFFER PERIOD"), Buyer Remy shall Notify Seller within thirty (30) days have an option to purchase all of receipt of the Offered Shares on the terms contained in the First Offer subject Notice. If Remy exercises said option, Remy shall deliver a written notice to Buyer’s management approval the Offeror indicating said exercise and CPUC Approval the number of shares it desires to purchase (“Buyer’s Notice the "ACCEPTANCE"). Payment with respect to the Offered Shares so purchased shall be due within five (5) business days of First Offer delivery of the Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails Remy has not exercised its option to accept Seller’s purchase all of the Offered Shares on the terms contained in the First Offer within Notice by the end of the Remy Offer Period, the Offeror shall be free during the thirty (30) days day period thereafter to dispose of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project Offered Shares to any third party, so long as the material terms and conditions of such sale other Losi Entity or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such pursuant to terms and conditions no more favorable (including, but not limited to, price and payment terms) to the Offeror than as set forth in the certificateFirst Offer Notice. If the Offeror has not disposed of all of the Offered Shares within this thirty (30) day period, the remaining Offered Shares will again be subject to this Section 4(a).]
(b) If Remy desires to sell or transfer any of its Stock to anyone other than a Permitted Transferee, Remy shall follow the procedures set forth below:
(i) Remy shall deliver a First Offer Notice to each of the Losi Entities, which notice shall set forth all material terms and conditions, including, but not limited to, the Offered Shares and the purchase price on which Remy desires to sell the Offered Shares.
(ii) During the fifteen (15) day period after a First Offer Notice is duly given (the "LOSI OFFER PERIOD"), each of the Losi Entities shall have an option to purchase at least that portion of the Offered Shares equal to a fraction, the numerator of which shall be the percentage interest in the Company then owned by such Losi Entity and the denominator of which shall be the total percentage interest in the Company then owned by all other Losi Entities (the "PERCENTAGE INTEREST"), or more than its Percentage Interest, if available, on the terms contained in the First Offer Notice. Each Losi Entity desiring to exercise such option shall deliver an Acceptance to Remy, which Acceptance shall indicate the number of shares such party desires to purchase. If each Losi Entity delivers an Acceptance to Remy indicating that it would like to purchase its Percentage Interest of the Offered Shares, then each Losi Entity shall be entitled to purchase Offered Shares based on its Percentage Interest. If one (1), or more than one (1), Losi Entity desires to purchase more than its Percentage Interest of the Offered Shares and there are not a sufficient number of Offered Shares to satisfy all Acceptances, each Losi Entity that has delivered an Acceptance shall first be entitled to purchase Offered Shares based on its Percentage Interest, and the remainder of the Offered Shares shall be allocated among those Losi Entities desiring to purchase in excess of their Percentage Interest pro-rata in proportion to such Losi Entities' respective interests. If Remy does not receive Acceptances for all of the Offered Shares by the end of the Losi Offer Period, none of the Acceptances received shall be given effect and Remy shall be free to proceed under paragraph (iii), below. Payment with respect to the Offered Shares shall be due within five (5) business days of delivery of the Acceptance.
(iii) If Remy does not receive Acceptances for all of the Offered Shares by the end of the Losi Offer Period, Remy shall be free during the thirty (30) day period thereafter to dispose of the Offered Shares to any third party pursuant to terms and conditions no more favorable (including, but not limited to, price and payment terms) to Remy than as set forth in the First Offer Notice. If Remy has not disposed of all of the Offered Shares within this thirty (30) day period, the remaining Offered Shares will again be subject to this Section 4(b).
Appears in 2 contracts
Samples: Voting Agreement (Variflex Inc), Voting Agreement (Losi Raymond H)
Right of First Offer.
(ia) If Seller resizes PGE terminates this Agreement before the Project Commercial Operation Date due to Permit Failurea Seller Event of Default, then neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Products associated with or attributable to the Facility to a party other than PGE for a period of two (2) years following the termination date of this Agreement, unless before selling, marketing or delivering such Products, or entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Products on terms and conditions materially similar to the terms and conditions contained in this Agreement. If PGE terminates this Agreement after the Commercial Operation Date due to a Seller Event of Default, neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Projects associated with or attributable to the Project to a party other than PGE on a long term basis (for three (3) months or longer) for a period of two (2) years from following the termination date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) belowunless before selling, (the “First Offer”) and Buyer either accepts marketing or rejects delivering such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this AgreementProducts, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell or otherwise transfer, the Products from at the Project without first offering to sell or otherwise transfer such Products to Buyer price and on such more favorable terms and conditions materially similar to the terms and conditions contained in this Agreement.
(the “Revised Offer”b) in accordance with subpart If PGE fails to accept an offer made by Seller pursuant to Section 3.1.19(a) within forty-five (ii) above. If within thirty (3045) days of PGE’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of Seller’s Revised Offer the Buyer rejects, Products associated with or fails attributable to accept by Notice the Facility at the price offered to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project PGE to any third party and on such any terms and conditions as in its sole discretion; provided that any offer proposed by Seller to a third party at a price less than the price set forth in this Agreement shall be subject to Seller providing a new written offer to sell the certificate.]Facility Output to PGE pursuant to the requirements contained in this Section
Appears in 2 contracts
Samples: Wholesale Renewable Power and Storage Capacity Purchase Agreement, Wholesale Renewable Power and Storage Capacity Purchase Agreement
Right of First Offer. If Buyer, any of its Affiliates, or any of its or their distributors on Buyer’s or any of its Affiliates’ behalf (a) receives a written order, proposal or offer to purchase a trailer-mounted gas turbine generator based on an LM2500 or LM6000 product platform and (b) determines to either (i) If Seller resizes purchase a trailer-mounted gas turbine generator to fulfill such order, proposal or offer (other than the Project due to Permit Failure, then for a period type of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth purchase described in the Cover Sheetlast sentence of Section 4.02(d)) or (ii) develop its own product to pursue such order, to any third partyproposal or offer, unless Buyer shall thereafter notify Seller first offerspromptly in writing of such order, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreementproposal or offer (including, subject to permitted modifications identified in subpart (ii) belowthe immediately following sentence, (the “First Offer”) a good faith and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days reasonable description of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions associated specifications of the contemplated trailer-mounted gas turbine generator) and offer Seller a right of first offer to develop such sale or transfer are not more favorable trailer-mounted gas turbine generator on the terms and pursuant to the specifications provided in such notice (the “ROFO Notice”). Each Party will take such steps as may be necessary or advisable in light of existing third party than those confidentiality obligations to which Buyer, any of its Affiliates, or any of its or their distributors on their behalf may be subject in connection with any such order, proposal or offer, to enable Buyer to provide Seller with the First Offer to Buyerforegoing description of material terms and associated specifications, including entering into a customary confidentiality or non-disclosure agreement. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with Upon receipt of a third partyROFO Notice, Seller shall have 45 days to request of Buyer any additional information reasonably needed by Seller to analyze the opportunity described in the ROFO Notice, and Buyer shall deliver to Seller such additional information (to the extent reasonably obtainable or known) as has been requested within 45 days after receipt of any such request from Seller. If Seller elects to accept the offer to develop the subject trailer-mounted gas turbine generator described in the ROFO Notice, Seller shall provide Buyer with a term sheet or other written proposal within 135 days from its receipt of the ROFO Notice. If Seller fails to deliver to Buyer a certificate any such term sheet or other proposal relating to such trailer-mounted gas turbine generator within such 135 days period, Seller shall be deemed to have irrevocably waived its right of an authorized officer first offer under this Article X and this Article X shall be of no further force and effect with respect to such contemplated trailer-mounted gas turbine generator (but shall remain in full force and effect with respect to any additional contemplated trailer-mounted gas turbine generator). Upon the issuance of any term sheet or proposal by Seller as herein provided, Seller and Buyer agree to negotiate in good faith the definitive terms of Seller’s development of the subject trailer-mounted gas turbine generator; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) summarizing the material terms and conditions of such agreement Buyer shall have no obligation to accept any offer made by Seller and (B) certifying that the proposed agreement with the if Buyer does not accept any such offer made by Seller, then Buyer shall not subsequently accept any similar offer from a third party will not provide Seller with a lower rate of return than that offered Person on terms that, in the First Offer aggregate, are equivalent to Buyer. If Seller is unable to deliver such a certificate or more adverse to Buyer, then Seller may not sell its applicable Affiliate or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from applicable distributor of any of the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of foregoing than those offered by Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 2 contracts
Samples: Supply and Distribution Agreement (Baker Hughes a GE Co), Supply and Distribution Agreement (BAKER HUGHES a GE Co LLC)
Right of First Offer. (ia) If Seller resizes Following the Project due to Permit Failure, then for a five year restriction period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in Section 3.1(a)(iii) or if the Cover Sheetdirectors of the Company consent to an earlier Transfer pursuant to Section 3.1(a)(iii), upon the receipt by any Stockholder (other than any member of the Trimaran Group) (“Transferor”) from a Third Party of a Bona Fide Offer to any third partypurchase or otherwise acquire (or if such Transferor has otherwise agreed to Transfer to a Third Party (other than in connection with a Qualified Public Offering)) all or a portion of Transferor’s shares of Company Stock (other than a Transfer pursuant to Section 4.2) which Transferor desires to accept, unless Seller first offersTransferor shall cause the Third Party’s offer to be reduced to writing and shall provide a copy of such written notice of such Third Party’s offer (the “ROFO Notice”) to the Company, in writingand the Company shall provide a copy thereof to Trimaran. The Company may, within thirty (30) days following its receipt of a ROFO Notice, elect to sell to Buyer such Products purchase from the Project on Transferor all (but not less than all) of the shares of Company Stock held by such Transferor which are subject to such ROFO Notice (the “Transferor Shares”) upon the same terms and conditions as this Agreement, subject to permitted modifications identified the terms and conditions contained in subpart (ii) below, the Third Party’s offer (the “First Offer”). To the extent the Company declines to elect to purchase such Transferor Shares, Trimaran shall have ten (10) and Buyer either accepts or rejects Business Days from the end of such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days day period to elect to purchase collectively all (but not less than all) of receipt such Transferor Shares. In the event the Company declines to purchase such Transferor Shares, the Company shall promptly notify Trimaran and the Transferor in writing of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failureits decision.
(iiib) If Xxxxx rejects Following the five year restriction period set forth in Section 3.1(a)(iii) or fails if the directors of the Company consent to accept Seller’s First Offer an earlier Transfer pursuant to Section 3.1(a)(iii), if neither the Company nor Trimaran shall have elected to purchase the Transferor Shares, the Transferor may sell, within sixty days following the thirty (30) days day period referred to in Section 4.3(a), to such Third Party all (but not less than all) of receipt of such offerthe Transferor Shares, Seller shall thereafter be free to sell or otherwise transfer, for the purchase price and to enter into agreements to sell or otherwise transfer, any Products from on the Project to any third party, so long as the material other terms and conditions of such sale or transfer are not more favorable contained in the Offer subject to the third party than those conditions of this Article IV. If the Company or Trimaran shall elect to purchase the Transferor Shares, the closing of the First Offer purchase and sale pursuant to Buyer. Ifsuch acceptance shall take place at a time and date to be determined by the Transferor and the Company or the Trimaran, during as the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller case may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatebe.]
Appears in 2 contracts
Samples: Stockholders Agreement, Stockholders Agreement (El Pollo Loco Holdings, Inc.)
Right of First Offer. (ia) Xxxxxxxxxx may, if he desires to sell, transfer, assign or otherwise dispose of any shares of First Refusal Stock to any person other than the Company and does not have a particular transaction or a particular buyer in mind, make a written offer (the "OFFER") to FFIC (pursuant to the terms of Section 7.1 of this Agreement) to sell all or part of his First Refusal Stock at a stated price (the "OFFER PRICE");
(b) If Seller resizes FFIC does not agree to pay the Project due Offer Price, it must within 15 days after it receives the Offer (the "RESPONSE DUE DATE") either state a price (in a notice pursuant to Permit Failurethe terms of Section 7.1 of this Agreement) at which it is willing to purchase the shares (the "COUNTER-OFFER PRICE") or state that it is not interested in purchasing the shares which are the subject of the Offer in a notice pursuant to the terms of Section 7.1 of this Agreement;
(c) If Xxxxxxxxxx is unwilling to accept the Counter-Offer Price, then Xxxxxxxxxx shall be free for a period of three (3) years from 180 days after the date on Response Due Date to sell the shares which Seller Notifies Buyer are the subject of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on at any price which exceeds 105% of the Counter-Offer Price free and clear of any further obligations under Sections 2 and 3 of this Agreement;
(d) If FFIC declines to state a Counter-Offer Price, Xxxxxxxxxx may for a period of 180 days after the Response Due Date sell the shares which are the subject of the Offer to a third party at 95% or more of the Offer Price free and clear of any further obligations under Sections 2 and 3 of this Agreement;
(e) If FFIC does not respond by the Response Due Date to the Offer, such terms and conditions silence shall be deemed the same as set forth in a statement that FFIC is unwilling to purchase the certificatesubject shares at the Offer Price, thereby freeing Xxxxxxxxxx for a period of 180 days after the Response Date to sell the shares which are the subject of the Offer at 95% or more of the Offer Price.]
Appears in 2 contracts
Samples: Right of First Offer and First Refusal Agreement (Crop Growers Corp), Right of First Offer and First Refusal Agreement (Firemans Fund Insurance Co)
Right of First Offer. (ia) If Seller resizes the Project due Not later than two (2) months prior to Permit Failure, then for a period any proposed sale of three (3) years from the date on which Seller Notifies Buyer direct or indirect ownership or control of substantially all of the Contract Capacity Commitment capital stock or assets of Belmac, Bentley shall notify Teva in writing (“Exclusivity Period”), neither Seller, the "Proposed Belmac Sale Notice") of its successors and assigns, nor its Affiliates intention to effect such sale. The Proposed Belmac Sale Notice shall enter into an obligation or agreement to sell or otherwise transfer any Products from include the Project in excess identity of the Contract Capacity Commitment, up proposed third party purchaser and the third party offer price. If the third party purchaser and Belmac or Bentley have entered into a confidentiality agreement with regard to the Contract Capacity set forth proposed transaction, Teva shall agree to a substantially similar confidentiality agreement prior to receiving the Proposed Belmac Sale Notice. Teva shall thereupon have the option, exercisable in the Cover Sheet, writing to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, Bentley (the “First Offer”" Belmac Exercise Notice") and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject Proposed Belmac Sale Notice, to Buyer’s management approval (i) cause Belmac to transfer to Davur all of the Teva Assets and CPUC Approval (“Buyer’s Notice ii) upon such transfer, purchase (directly or through its designee) all of First Offer Acceptance”)the capital stock of Davur, free and then clear of all liens, claims and encumbrances, at a price equal to the fair market value of the Davur Shares less the value of the Teva Assets and Additional Teva Assets and in accordance with the procedures set forth in Section 2 (b) above. If the Parties are unable to agree upon such purchase price then such purchase price shall have be established in accordance with the appraisal procedure set forth in Section 2 (b) above. If Teva does not more than ninety (90) days from the date of Buyer’s deliver a Belmac Exercise Notice to enter into a new power purchase agreementBentley within the 30-day period, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller Bentley shall thereafter be free to sell or otherwise transfer, proceed with the transaction specified in the Proposed Belmac Sale Notice for a period of four (4) months and Teva shall have no further rights under this Section 3 (a) related to enter into agreements to sell or otherwise transfer, any Products from such transaction. If the Project to any third party, so long as the material terms and conditions of such sale or transfer are specified transaction does not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement close with the third party will not provide Seller with a lower rate within such four (4) month period then all of return than that offered in Teva's rights under this Agreement shall be reinstituted.
(b) Without derogation to the First Offer rights granted to Buyer. If Seller is unable Teva pursuant to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions Section 3 (the “Revised Offer”) in accordance with subpart (iia) above. If within thirty (30) days of receipt of Seller’s Revised Offer , upon any offer by or to Bentley for the Buyer rejects, sale to or fails to accept the purchase by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any an unrelated third party on such terms of a controlling interest in Belmac or substantially all of its assets, Bentley shall grant to Teva the same right to bid for and conditions purchase Belmac as set forth any other third party, except that Teva (or its designee) shall receive credit in its purchase price for the certificatevalue of the Teva Assets. The right in this paragraph shall be in addition to and not in substitution for the rights of Teva under Article 3 of this Agreement.]
Appears in 2 contracts
Samples: Supply Agreement (Bentley Pharmaceuticals Inc), Rights Agreement (Bentley Pharmaceuticals Inc)
Right of First Offer. (i) If Seller resizes may not sell the Project due to Permit FailureFacility, then for either directly or indirectly through a period change of three (3) years from the date on which Seller Notifies Buyer control of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assignsduring the term of this Agreement unless Seller shall have complied with the following: prior to selling the Facility, nor its Affiliates Seller shall enter into an obligation or agreement give notice to Purchaser of Seller’s intent to sell or otherwise transfer any Products the Facility and Purchaser shall have sixty (60) days from the Project in excess of the Contract Capacity Commitment, up such notice to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, prepare an offer (the “First Offer”) and Buyer either accepts or rejects such to purchase the Facility. Seller shall negotiate in good faith exclusively with Purchaser for a minimum of thirty (30) days from receipt of the First Offer in accordance with to attempt to reach agreement on the provisions herein.
(ii) terms of a purchase. If Buyer accepts the First Offer, Buyer shall Notify Seller Parties cannot reach an agreement on sale terms within the thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties Seller shall have not more than ninety three hundred sixty (90360) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of Purchaser delivering the First Offer to Buyer. If, during close on a sale of the Exclusivity Period, Seller desires Facility to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the unaffiliated third party will not provide Seller with for a lower rate of return price and for terms that are no less than that offered the price and no more onerous than the terms in the First Offer to BuyerOffer. If Seller is unable to deliver cannot close on the sale within such a certificate to Buyerthree hundred sixty (360)-day period, then it must make another offer and again comply with the terms of this Section before selling the Facility. In any case, Seller may not sell the Facility (directly or otherwise transfer, or enter into an agreement to sell or otherwise transfer, indirectly) unless the Products from purchaser of the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) Facility assumes in accordance with subpart (ii) above. If within thirty (30) days of receipt of writing Seller’s Revised Offer obligations hereunder. Notwithstanding anything herein to the Buyer rejectscontrary, a construction financing or fails tax equity financing with respect to accept by Notice the Facility shall not be deemed to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatea change of control for purposes of this Section 27.3.]
Appears in 2 contracts
Right of First Offer. (ia) If Seller resizes the Project due If, prior to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess initial public -------------------- offering of shares of the Contract Capacity CommitmentCommon Stock, up Mucosal desires to Transfer to any third-party all or any part of the Warrant Shares pursuant to the Contract Capacity set forth in the Cover Sheet, to any terms of a bona fide offer received from a third party, unless Seller Mucosal shall first offers, in writing, submit a written offer (the "Offer") to sell such Warrant Shares (the "Offered Shares") ----- -------------- to Buyer the Company on terms and conditions, including price, not less favorable to the Company then those on which Mucosal proposes to sell such Products from Warrant Shares to such third party. The Offer shall disclose the Project identity of the proposed purchaser, specify the number of Offered Shares proposed to be sold, the total number of Offered Shares owned by Mucosal, and the agreed terms and conditions of the sale and any other material facts relating to the sale.
(b) The Company shall have the right to purchase all or any portion of the Offered Shares on the same terms and conditions as this Agreement, subject to permitted modifications identified specified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(iic) If Buyer accepts the First OfferCompany desires to purchase all or any portion of the Offered Shares, Buyer the Company shall Notify Seller communicate in writing its election to purchase (an "Acceptance") to Mucosal, which Acceptance shall be delivered to ---------- Mucosal within thirty (30) 30 days of the Company's receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureOffer.
(iiid) If Xxxxx rejects the Company elects to purchase all or fails any of the Offered Shares, sale of the Offered Shares to accept Seller’s First be so purchased pursuant to this Section shall be made at the offices of the Company on the 30th day following the expiration of the 30-day period applicable pursuant to paragraph (c) of this Section (or if such 30th day is not a business day, then on the next succeeding business day). Such sales shall be effected by Mucosal's delivery to the Company of a certificate or certificates evidencing the Offered Shares to be purchased by it, duly endorsed for Transfer to the Company, which Offered Shares shall be delivered free and clear of all liens, charges, claims and encumbrances of any nature whatsoever, against payment to Mucosal of the purchase price therefor by the Company. Payment for the Offered Shares shall be made as provided in the Offer or by wire transfer or certified check.
(e) If the Company does not elect to purchase all of the Offered Shares, then the Offered Shares not so purchased may be sold by Mucosal at any time within thirty (30) 150 days of after the Company's receipt of the Offer. Any such offersale shall be upon terms and conditions, Seller shall thereafter be free including price, not less favorable to sell or otherwise transferMucosal than those specified in the Offer, and the purchaser or transferee (and all subsequent purchasers or transferees) shall be subject to enter into agreements all the terms of this Agreement. Any Offered Shares not sold within such 150-day period shall continue to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable be subject to the third party than those requirements of a first offer by the First Offer Company pursuant to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatethis Section.]
Appears in 2 contracts
Samples: License Agreement (Orapharma Inc), Stock Warrant Agreement (Orapharma Inc)
Right of First Offer. 11.1.1 Notwithstanding anything contained in this Lease to the contrary, provided that (i) If Seller resizes no Event of Default by Tenant has occurred under this Lease, and (ii) the Project due Tenant is Ionis Pharmaceuticals, Inc., or its affiliate, if Landlord intends to Permit Failureoffer the Premises (or any portion thereof) for sale to an unaffiliated third party, then for a period of three (3) years from the date on which Seller Notifies Buyer Landlord shall promptly notify Tenant of the Contract Capacity Commitment same in writing (the “Exclusivity PeriodOffer Notice”), neither Seller, its successors ) and assigns, nor its Affiliates shall enter into an obligation or agreement indicate the terms and conditions upon which Lxxxxxxx is willing to sell or otherwise transfer any Products from accept for the Project in excess sale of the Contract Capacity Commitment, up Premises to a third party. Tenant may elect to purchase the Contract Capacity Premises (or portion thereof) on the terms and conditions set forth in the Cover Sheet, to any third party, unless Seller first offers, Offer Notice by notifying Landlord in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, writing (the “First OfferElection Notice”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
of its election no later than fifteen (ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3015) days of receipt of after the First Offer subject to Buyer’s management approval and CPUC Approval Notice, which notice shall be accompanied by the Option Deposit (“Buyer’s Notice of First Offer Acceptance”defined herein), and then the Parties sale of the Premises shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable consummated pursuant to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with terms hereof on a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions date (the “Revised OfferClosing Date”) in accordance with subpart within sixty (ii) above. If within thirty (3060) days after the Election Notice, such date to be mutually agreed upon by Landlord or Txxxxx. In the event of receipt any of Seller’s Revised Offer the Buyer rejectsfollowing: (x) Tenant fails to deliver the Election Notice or the Option Deposit to Landlord on or before the expiration of the 15-day period set forth above, (y) Tenant fails to close on its acquisition of the Premises on or before the Closing Date, or fails to accept by (z) Landlord provides an Offer Notice to Seller, Tenant and Tenant does not exercise its right to purchase the Revised OfferPremises, then Seller will in each case Tenant shall be deemed to have waived its right to purchase the Premises and thereafter Tenant’s rights under this Article 11 shall be free null and void and of no further force or effect. The term “Option Deposit” shall mean the amount of cash deposit required in the Offer Notice or, if no cash deposit is specified in the Offer Notice, a sum equal to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from five percent (5%) of the Project to any third party on such terms and conditions as purchase price for the Premises set forth in the certificateOffer Notice.]
Appears in 2 contracts
Samples: Lease Agreement (Ionis Pharmaceuticals Inc), Purchase and Sale Agreement (Ionis Pharmaceuticals Inc)
Right of First Offer. (a) If Buyer terminates this Agreement due to a Seller Event of Default, neither Seller nor Seller’s Affiliates may sell, market or deliver any quantity of the Products associated with or attributable to the Project to a party other than Buyer for a period of two (2) years if Seller Event of Default is prior to the Commercial Operation Date or six (6) months if Seller Event of Default is after the Commercial Operation Date following the termination date of this Agreement, unless before selling, marketing or delivering such Products, or entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide Buyer with a written offer to sell the Products on terms and conditions materially similar to the terms and conditions contained in this Agreement (excluding price, which may be adjusted to include updated costs, including, but not limited to, materials, labor and costs of capital).
(i) If Buyer fails to accept an offer made by Seller resizes the Project due pursuant to Permit Failure, then for a period of three Section 11.3(a) within forty-five (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3045) days of Buyer’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of the First Offer subject Products associated with or attributable to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party and on any terms in its sole discretion. Buyer’s acceptance of such an offer within forty-five (45) days of Buyer’s receipt thereof may be conditioned on Buyer obtaining approval from Buyer’s Board of Directors or the Oregon Public Utility Commission.
(ii) Neither Seller nor Seller’s Affiliates may sell or transfer the Storage Facility, or any part thereof, or land rights or interests in the Site so long as the limitations contained in this Section 11.3 apply, unless the transferee agrees in writing to be bound by the terms and conditions as set forth in this Section 11.3.
(iii) Subject to Section 11.4 Seller shall indemnify and hold Buyer harmless from all benefits lost and other damages sustained by Xxxxx as a result of any breach by Seller of its covenants contained within this Section 11.3. This provision shall survive the certificatetermination of this Agreement.]
Appears in 2 contracts
Samples: Storage Capacity Agreement, Storage Capacity Agreement
Right of First Offer. (ia) If Seller resizes any Member other than the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into ArcLight Member or an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, ArcLight Permitted Transferee (the “First OfferTransferring Member”) and Buyer either accepts intends to Transfer all or rejects such First Offer in accordance with a portion of its Units (the provisions herein“Offered Units”) other than to an ArcLight Permitted Transferee or a Magnum Hunter Permitted Transferee, then the Transferring Member shall deliver written notice (the “Sale Notice”) to the ArcLight Member.
(iib) If Buyer accepts the First Offer, Buyer shall Notify Seller within Within thirty (30) days of the receipt of the First Sale Notice by the ArcLight Member, the ArcLight Member shall have the right, but not the obligation, to make a first offer (the “ArcLight Offer”) to purchase any or all of the Offered Units. Any such ArcLight Offer subject shall be in writing and shall contain the number of Offered Units the ArcLight Member proposes to Buyer’s management approval purchase, the price and CPUC Approval other material terms on which the ArcLight Member proposes to purchase such Offered Units.
(“Buyer’s Notice c) If the Transferring Member does not receive an offer to purchase all of First Offer Acceptance”the Offered Units from the ArcLight Member within the thirty (30)-day period provided in Section 12.2(b), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this AgreementTransferring Member shall, subject to CPUC Approvalcompliance with Section 12.3, if necessary; be free to direct the Transfer of the Offered Units that were not the subject of an offer by the ArcLight Member to a third party at a price and on terms and conditions acceptable to such Transferring Member during the one hundred eighty (180)-day period immediately following the expiration of such 30-day period. After such one hundred eighty (180)-day period, any proposed Transfer shall once again be subject to the terms and conditions of this Section 12.2 to the extent provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failureherein.
(iiid) If Xxxxx rejects or fails the Transferring Member receives an offer from the ArcLight Member to accept Seller’s First Offer purchase any of the Offered Units within the thirty (30)-day period provided in Section 12.2(b), the Transferring Member shall consider such offer and the Transferring Member and the ArcLight Member shall have thirty (30) days to negotiate in good faith the purchase price that will be paid by the ArcLight Member for the Offered Units.
(e) If, after the expiration of receipt the good faith negotiation period described above, the ArcLight Offer is accepted by the Transferring Member, then the ArcLight Member will have sixty (60) days from such acceptance within which to complete its purchase of the Offered Units, subject to extension to the extent necessary to satisfy applicable regulatory approvals. Under such offercircumstances, Seller the Transferring Member and the ArcLight Member shall thereafter be free negotiate in good faith the additional terms applicable to sell or otherwise transfersuch purchase beyond those that were included in the ArcLight Offer.
(f) If the Transferring Member rejects the ArcLight Offer, then the Transferring Member may, subject to compliance with Section 12.3, direct the Transfer of the Offered Units to a third party only at a price and on terms and conditions that, when taken as a whole, are superior (as determined by the Transferring Member in good faith) to the price and the terms and conditions offered by the ArcLight Member, and then only during the one hundred eighty (180)-day period following such rejection, subject to enter into agreements extension to sell or otherwise transferthe extent necessary to satisfy applicable regulatory approvals. After such one hundred eighty (180)-day period (as extended, to the extent applicable), any Products from proposed Transfer shall once again be subject to the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable this Section 12.2 to the extent provided herein.
(g) In the case of a Transfer to a third party than those as contemplated by Section 12.3(c) or Section 12.3(f), the Board shall, and shall direct the officers of the First Offer Company to, (i) permit potential purchasers selected by the Transferring Member, after executing a confidentiality agreement in such form as shall be determined by the Board, to Buyer. Ifconduct a due diligence review of the Company and its business, during the Exclusivity Periodoperations, Seller desires to enter into an obligation or agreement with a third partyprospects, Seller shall deliver to Buyer a certificate assets, liabilities, financial condition, and results of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyeroperations, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days cooperate in allowing potential purchasers to visit the offices of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transferCompany, and (iii) make available the Officers and technical personnel of the Company for the purpose of making presentations to enter into agreements to sell or otherwise transfersuch potential purchasers and answering questions posed by them, who shall provide reasonable cooperation during normal business hours and upon reasonable advance notice, and at such Products from Transferring Member’s sole cost and expense.
(h) The provisions of this Section 12.2 shall expire upon the Project to any third party on such terms and conditions as set forth in the certificateoccurrence of a Qualified Public Offering.]
Appears in 1 contract
Samples: Limited Liability Company Agreement (Magnum Hunter Resources Corp)
Right of First Offer. (i) If Seller resizes Following the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer fifth anniversary of the Contract Capacity Commitment Stock Purchase Closing Date, so long as the Company has not completed an IPO, no Stockholder shall Transfer any of its Equity Securities other than to a Permitted Transferee or a sale by a Co-Sale Participant pursuant to Section 3.4 except as set forth below:
(a) Prior to any Transfer of Equity Securities by a Stockholder (the “Exclusivity PeriodOffering Holder”), neither Seller, its successors the Offering Holder shall deliver to the Company and assigns, nor its Affiliates shall enter into each other Stockholder that is not an obligation or agreement to sell or otherwise transfer any Products from the Project in excess Affiliate of the Contract Capacity CommitmentOffering Holder (collectively, up excluding the Company, the “ROFO Recipients”) written notice (the “Offer Notice”), stating such Offer Holder’s intention to effect such a Transfer, the Contract Capacity set forth in number of Equity Securities subject to such Transfer (the Cover Sheet“Offered Securities”), the price the Offering Holder proposes to any third partybe paid for the Offered Securities (the “First Offer Price”), unless Seller first offers, in writing, to sell to Buyer such Products from and the Project on the same other material terms and conditions as this Agreementof the proposed Transfer. The Offer Notice may require that the consummation of any sale of the Offered Securities to the Company or the ROFO Recipients occur on a date that is no less than 30 days, subject and no later than 60 days after the date of the Offer Notice (or, if FCC approval or consent is required in connection with the proposed Transfer, no later than the earlier of 30 days after such approval or consent has been obtained and six months after the date of the Offer Notice).
(b) Upon receipt of the Offer Notice, the Company will have an irrevocable non-transferable option to permitted modifications identified purchase all or a portion of the Offered Securities at the First Offer Price and otherwise on the terms and conditions described in subpart (ii) below, the Offer Notice (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer). The Company shall, Buyer shall Notify Seller within thirty (30) 15 days of from receipt of the Offer Notice, indicate whether or not it has accepted the First Offer subject by sending irrevocable written notice of any such acceptance to Buyer’s management approval the Offering Holder and CPUC Approval the ROFO Recipients indicating the number of Offered Shares to be purchased (the “Buyer’s Notice of First Offer AcceptanceAcceptance Notice”), and the Company shall then be obligated to purchase such number of Offered Securities on the Parties terms and conditions set forth in the Offer Notice. In the event the Company elects not to purchase any or all of the Offered Securities, the ROFO Recipients shall have the option to purchase at the First Offer Price all, but not more less than ninety (90) all, of the Offered Securities with respect to which the Company has not exercised its option, and each of the ROFO Recipients shall, within 15 days from receipt of the date of BuyerCompany’s Notice Acceptance Notice, indicate to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC ApprovalOffering Holder and the Company if it has accepted the First Offer and, if necessary; provided that so, the Contract Price may only number of Offered Securities to be increased purchased by sending irrevocable written notice of such acceptance to reflect Seller’s documented incremental costs the Offering Holder and the Company, and such ROFO Recipient shall then be obligated to purchase such number of Offered Securities on the terms and conditions set forth in overcoming the Permit FailureOffer Notice.
(iiic) If Xxxxx rejects or fails Notwithstanding any other provision of this Section 3.3, the ROFO Recipients shall not be permitted to accept Sellerpurchase less than all of the Offered Securities without the consent of the Offering Holder. The number of shares that each ROFO Recipient shall be entitled to purchase upon the exercise of the right of first offer shall be equal to such ROFO Recipient’s First Offer Pro Rata Portion of the Offered Securities other than those as to which the Company has exercised its option. In the event any ROFO Recipient elects to purchase less than all of its Pro Rata Portion (such remaining securities, the “Section 3.3 Non-Electing Shares), the Company shall notify the other ROFO Recipients as to the aggregate number of Section 3.3 Non-Electing Shares, and each such other ROFO Recipient shall be entitled to purchase its Pro Rata Portion of the Section 3.3 Non-Electing Shares by providing written notice that such ROFO Recipient has elected to purchase all (but not less than all) of its Pro Rata Portion of the Section 3.3 Non-Electing Shares within thirty (30) 5 days of receipt of such offernotice, Seller and such ROFO Recipient shall thereafter then be obligated to purchase such ROFO Recipient’s Pro Rata Portion of the Section 3.3 Non-Electing Shares; provided, however, that for the purposes of this Section 3.3(c), in computing a ROFO Recipient’s Pro Rata Portion of the Section 3.3 Non-Electing Shares, the ROFO Recipient that failed to elect to purchase such Section 3.3 Non-Electing Shares shall not be considered to hold any shares of Common Stock.
(d) If neither the Company nor the ROFO Recipients (in the aggregate) elect to purchase all of the Offered Securities pursuant to this Section 3.3, then the applicable Offering Holder shall be free for a period of six months from the date acceptance notices from the ROFO Recipients were due to sell or otherwise transfer, and be received by the applicable Offering Holder to enter into definitive agreements to sell Transfer the Offered Securities as to which such options are not exercised to a Transferee for consideration having a value not less than 90% of the First Offer Price and to transfer the Offered Securities pursuant to such definitive agreements; provided that any such definitive agreement provides for the consummation of such Transfer to take place within six months (or otherwise transferin the absence of FCC approval at the end of such six months, any Products nine months) from the Project to any third party, so long as the material terms and conditions date of such sale or transfer are definitive agreement and is otherwise on terms not more favorable to the third party transferee in any material respect than those were contained in the Offer Notice.
(e) If neither the Company nor the ROFO Recipients (in the aggregate) exercise their respective options to purchase all of the Offered Securities at the First Offer Price and the applicable Offering Holder has not entered into a definitive agreement described in Section 3.3(d) within six months from the date acceptance notices from the ROFO Recipients were due to Buyer. Ifbe received by the applicable Offering Holder, during or the Exclusivity Period, Seller desires to enter Offering Holder has entered into such an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing but has not consummated the material terms and conditions sale of such agreement and securities within six months (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered or in the First Offer to Buyer. If Seller is unable to deliver absence of FCC approval at the end of such a certificate to Buyersix months, nine months) from the date of such definitive agreement, then Seller the provisions of this Section 3.3 shall again apply, and such Offering Holder shall not Transfer or offer to Transfer such Equity Securities without again complying with this Section 3.3.
(f) Upon exercise by the Company and/or the ROFO Recipients, as the case may not sell or otherwise transferbe, or enter into an agreement to sell or otherwise transferof their respective rights of first offer under this Section 3.3, the Products from Company and/or the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (ROFO Recipients, as the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfercase may be, and the applicable Offering Holder shall be legally obligated to enter into agreements consummate the purchase contemplated thereby and shall use their commercially reasonable efforts to sell secure any governmental authorization required, to comply as soon as reasonably practicable with all applicable laws and to take all such other actions and to execute such additional documents as are reasonably necessary or otherwise transfer, such Products from appropriate in connection therewith and to consummate the Project to any third party on such terms and conditions purchase of the Offered Securities as set forth in the certificatepromptly as practicable.]
Appears in 1 contract
Right of First Offer. Until a Qualified Public Offering has occurred, if either the Investor or the Controlling Shareholder (ieach, a “Selling Shareholder”) If Seller resizes wishes to Transfer all or a portion of its Shares to any Person (other than in a Permitted Transfer) (a “Third-Party Buyer”), and provided that such transfer is not prohibited pursuant to the Project due to Permit Failureterms hereof, then for such Selling Shareholder shall offer such Shares to the Controlling Shareholder or the Investor or, in either case, an Affiliate thereof, as the case may be (the “Offered Shareholder”), by delivering written notice (a “First Offer Notice”), which shall state the number of Shares proposed to be transferred (the “Offered Shares”).
10.1.1. For a period of three thirty (330) years from the date on which Seller Notifies Buyer Business Days after delivery of the Contract Capacity Commitment First Offer Notice (the “Exclusivity Option Period”), neither Seller, its successors and assigns, nor its Affiliates the Offered Shareholder shall enter into an obligation or agreement to sell or otherwise transfer any Products from have the Project in excess right (the “Right of First Offer”) but not the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheetobligation, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, present an offer (the “First OfferOffer Acceptance Notice”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offerto purchase all, Buyer shall Notify Seller within thirty (30) days of receipt but not less than all, of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”)Offered Shares, and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable offer, including the purchase price per Offered Share, which shall be entirely paid in cash (the “Offer Price”). The failure of the Offered Shareholder to respond within the Option Period shall be deemed to be a waiver of the Right of First Offer in respect of such First Offer Notice; provided, that the Offered Shareholder may waive its rights under this Section 10.1.1 prior to the third party than those expiration of the Option Period by delivering written notice to the Selling Shareholder.
10.1.2. Upon delivery of the First Offer Acceptance Notice, the Selling Shareholder shall have thirty (30) calendar days to Buyer. Ifrespond in writing to the Offered Shareholder, during on whether it accepts or rejects the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered offer contained in the First Offer to BuyerAcceptance Notice (“Acceptance Period”).
10.1.3. If Seller the Selling Shareholder accepts the offer under the First Offer Acceptance Notice, the closing of the purchase of the Offered Shares by the Offered Shareholder shall be held at the head offices of the Company at 11:00 a.m., local time, on a date agreed upon by the Selling Shareholder and the Offered Shareholder, not later than the sixtieth (60th) day after the acceptance of the offer by the Selling Shareholder (which date shall be automatically extended for any pending review period that may be required by any Governmental Authority) pursuant to Section 10.1 or at such other time and place as the parties to the transaction may agree. At such closing, the Selling Shareholder and the Offered Shareholder shall execute the appropriate share transfer instruments and the Company shall record the transaction in the Company’s register of shareholders. Such Offered Shares shall be free and clear of any Encumbrances (other than those arising hereunder and those attributable to actions by the purchasers thereof) and together with all rights attaching thereto at the date of the relevant transfer, and the Selling Shareholder shall so represent and warrant. The Selling Shareholder shall further represent and warrant that it is unable the sole beneficial and record owner of such Offered Shares. The Offered Shareholder shall deliver payment in full at the closing in immediately available funds for the Offered Shares purchased by it.
10.1.4. In the event (i) the Offered Shareholder waives or elects not to deliver such a certificate to Buyerexercise its Right of First Offer; or (ii) the closing of any proposed purchase does not occur within the period set forth in Section 10.1.3 above; or (iii) the Selling Shareholder does not accept the Offer Price proposed by the Offered Shareholder, then Seller may the Selling Shareholder may, subject to Section 10.2 below and Article 9 above, Transfer all, but not sell less than all, of the Offered Shares to a Third-Party Buyer for cash consideration only; provided, however, that in the event such Transfer to a Third-Party Buyer occurs (y) after the final term for closing of any proposed purchase that does not occur according to the procedures laid out in Section 10.1.3 or (z) as a result of the Selling Shareholder not accepting the Offer Price proposed by the Offered Shareholder, such Transfer shall not be at a price per Share that is lower than the Offer Price (adjusted for any dividends and/or leakages during the relevant period which have a dilutive effect of the share price) or otherwise transfer, or enter into an agreement on terms less favourable to sell or otherwise transfer, the Products from Selling Shareholder than the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateFirst Offer Acceptance Notice, if any; provided, further, that such Transfer is bona fide and made pursuant to a contract entered into within one hundred and eighty (180) days of the earlier to occur of (i) the waiver by the Offered Shareholder of its Right of First Offer; (ii) the expiration of the Option Period; (iii) the date the Selling Shareholder informs the Offered Shareholder that it does not accept the Offer Price proposed by the Offered Shareholder (the “Contract Date”); provided further that the Offered Shareholder may still be entitled to Transfer its Shares under Section 10.2. If, for any reason, such Transfer is not consummated during the one hundred and eighty (180) days after the Contract Date (which date shall be automatically extended for any pending review period that may be required by any Governmental Authority), then the restrictions provided for herein shall again become effective, and no Transfer of such Offered Shares may be made thereafter by the Selling Shareholder without again offering the same to the Offered Shareholder in accordance with this Section 10.1.]
10.1.5. Any expenses incurred for the benefit of all Shareholders in relation to a Transfer pursuant to this Section 10.1 shall be paid by the Shareholders in accordance with their respective ownership percentages involved in the transaction to the extent not paid or reimbursed by the Transferee.
Appears in 1 contract
Right of First Offer. (ia) If Seller resizes In the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer event that any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, Series B Stockholder (the “First Transferring Holder”) is interested in Transferring any shares of Series B Common Stock (the “Subject Shares”) to any Person who is not an Affiliate of the Transferring Holder, then prior to any such Transfer, the Transferring Holder must furnish an offer by written notice to IIEL and the Company (a “Stock Sale Notice”) to sell the Subject Shares to IIEL and the Company for a purchase price (the “Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein).
(iib) If Buyer accepts IIEL and the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties Company shall have not more than ninety the right (90the “Right”) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First the Offer within thirty (30) days of receipt receiving the Stock Sale Notice (the “Offer Period”) by notice in writing to the Transferring Holder (the “Notice of such offerExercise”). As between the Company and IIEL, Seller shall thereafter IIEL will have the first priority with respect to the Subject Shares, and the Subject Shares may be free allocated between IIEL and the Company in any amounts mutually agreed upon by IIEL and the Company.
(c) If the Company and IIEL elect not to exercise their Right or if the Offer Period ends without the Company or IIEL delivering a Notice of Exercise to the Transferring Holder, the Transferring Holder may elect to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project Subject Shares to any third party; provided, so long as that, with respect to any such sale to a third party (i) the material terms and conditions closing of such sale or transfer shall be no later than ninety (90) days after the Transferring Holder receives notice from the Company and IIEL that they are not more favorable to exercising their Right or the third party than those of the First Offer to Buyer. IfPeriod ends, during the Exclusivity Periodwhichever is later, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails purchase price payable for the Subject Shares shall be at least equal to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as price set forth in the certificateStock Sale Notice, (iii) such third party must execute a joinder to this Agreement and agree to be bound by all of the provisions hereof applicable to the Transferring Holder to the extent such provisions by their terms continue in effect and (iv) the total number of Persons holding Series B Common Stock as a result of sales pursuant to this Section 5 shall not exceed ten (10) Persons without the written consent of the Company.]
(d) At any closing of the sale of the Subject Shares to the Company and/or IIEL, (i) the Transferring Holder shall deliver to the Person or Persons exercising the Right the stock certificates evidencing the Subject Shares in valid form for transfer with all appropriate and duly executed assignments, stock powers or endorsements, as the case may be, bearing any necessary documentary stamps and accompanied by such certificates of authority, consents to transfer or other instruments or evidences of good title of the Transferring Holder to such shares, free and clear of all claims, liens, pledges and encumbrances, as the Investcorp Investors may reasonably request, and (ii) the Person or Persons exercising the Right will pay to the Transferring Holder the applicable purchase price by wire transfer of immediately available funds to such account as the Transferring Holder shall designate in writing to IIEL.
(e) IIEL shall have the right to assign its rights under this Section 5 to any other Investcorp Investor.
(f) The provisions of this Section 5 will expire immediately prior to (and shall not apply to) the closing of the Initial Public Offering.
Appears in 1 contract
Right of First Offer. So long as the Minimum Whitney Common Ownership is at least twenty percent (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”20%), neither Seller, its successors and assigns, Xxxxxxxx nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, his Permitted Transferees (the “First OfferXxxxxxxx Parties”) and Buyer either accepts or rejects such First Offer may Transfer any Securities except in accordance compliance with the provisions hereinthis Section 2.3.
(iia) If Buyer accepts any Xxxxxxxx Party desires to Transfer Securities, he shall give notice thereof to the Whitney Notice Parties (a “First OfferOffer Notice”). The First Offer Notice shall include the number and type of Securities that are to be the subject of the Transfer and, Buyer to the extent then known, the proposed process applicable to the Transfer and the intended timing of such Transfer.
(b) The holders of a majority of the Whitney Common Shares (the “Required Holders”) shall Notify Seller have the right, but not the obligation, exercisable at any time within thirty (30) days of receipt after delivery of the First Offer subject Notice, to Buyer’s management approval deliver in writing to the Xxxxxxxx Party an offer to purchase all, but not less than all, of such Securities (the “First Offer Election”) setting forth the material terms and CPUC Approval conditions on which it proposes to purchase such Securities (the “Buyer’s First Offer Terms”).
(c) The Xxxxxxxx Party shall have a period of ten (10) days after the delivery of the First Offer Election in which to accept or reject the offer by the Required Holders on the First Offer Terms. Notice of First Offer Acceptancesuch acceptance shall be referred to as the “Xxxxxxxx Acceptance Notice.”)
(d) Upon the acceptance of any such offer pursuant to (b) above, the Required Holders shall designate a date to purchase the Securities to be acquired, which date shall be not less than five (5) days following the date on which the Required Holders notify the Xxxxxxxx Party thereof and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days following delivery of receipt of such offerthe Xxxxxxxx Acceptance Notice, Seller at which time the Required Holders shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from deliver payment in the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable appropriate amount to the third party than those Xxxxxxxx Party against (i) delivery of certificates or other instruments representing the Securities to be purchased, appropriately endorsed by the Xxxxxxxx Party and (ii) completion of all documentation necessary to satisfy all of the First Offer to Buyer. If, during Terms.
(e) If the Exclusivity Period, Seller desires to enter into an obligation Required Holders do not make a First Offer Election or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing if the material terms and conditions of such agreement and (B) certifying that Xxxxxxxx Party has not accepted the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered offer embodied in the First Offer Notice within the ten (10) day period set forth in subparagraph (b) above, the Xxxxxxxx Party shall have the unlimited right at his option, at any time within the one hundred eighty (180) days following the date of the First Offer Notice to Buyersell all of the Securities that were the subject of the First Offer Notice free of any obligation to sell any of such Securities to the Required Holders; provided, however, that, if the Required Holders shall have made a First Offer Election but the Xxxxxxxx Party did not accept such offer as aforesaid, the per share price in such sale shall not be less than the per share price contained in the First Offer Terms. If Seller is unable Any subsequent or other proposed Transfer shall be subject to deliver such the rights of first offer set forth herein.
(f) Notwithstanding any provision of this Section 2.3 to the contrary, if the exercise by any holder of Whitney Securities of its Right of First Offer would cause the Voting Power (on a certificate fully-diluted basis, including in respect of all Derivative Securities) which all of the holders of the Whitney Securities own, directly or indirectly, to Buyerexceed forty-nine and nine-tenths percent (49.9%) of the Voting Power of the Common Stock (on a fully-diluted basis, including in respect of all Derivative Securities), then Seller may such holders of Whitney Securities agrees that that portion of the Securities so exceeding such forty-nine and nine-tenths percent (49.9%) threshold shall be replaced with a different class of Securities without any voting rights whatsoever (but in all other respects identical to the Securities offered pursuant to this Section 2.3). Each of the Parties covenants and agrees that it shall take all measures required to carry out the foregoing, including approval of any required amendment to the Certificate of Incorporation of Holdings.
(g) Notwithstanding anything contained herein to the contrary, this Section 2.3 shall not sell apply to: (i) any Transfer or otherwise transferseries of related Transfers of Securities by the Xxxxxxxx Parties that, or enter into an agreement in the aggregate, together with all other Transfers subject to sell or otherwise transferthe exception set forth in this subsection (g)(i), the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions constitute Minimum Xxxxxxxx Ownership of less than ten percent (the “Revised Offer”) in accordance with subpart 10%), (ii) above. If within thirty Transfers to Permitted Transferees, (30iii) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transferCall Option Transfers, and (iv) Transfers with respect to enter into agreements which the Xxxxxxxx Transferors have exercised a right to sell or otherwise transfer, such Products from the Project compel sale pursuant to any third party on such terms and conditions as set forth in the certificateSection 2.5.]
Appears in 1 contract
Samples: Stockholders’ Agreement (Roller Bearing Co of America Inc)
Right of First Offer. So long as the Purchaser Agent has exercised the Phase II Option and the Phase III Option, if the Servicer intends to enter into a subsequent Programmatic Purchase relationship during months thirteen (i13) If Seller resizes through eighteen (18) of the Project due Phase III Term (or such shorter period of time in the event that the Phase III Term terminates before the end of such eighteenth (18th) month) (the “Subsequent Program”), the Servicer shall provide the Purchaser Agent with written notice of such intention (the “Subsequent Program Intent Notice”). During the fifteen (15) day period following its receipt of the Subsequent Program Intent Notice (the “Subsequent Program Notice Period”), the Purchaser Agent shall have the right to Permit Failure, then provide the Servicer with an offer that sets forth the financial terms upon which the Purchaser Parties would be willing to purchase participations per the structure set forth in this Agreement for [***] of the Servicer’s future Eligible Receivable origination volume for a period of three one (31) years from year following the date on which Seller Notifies Buyer expiration of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, Phase III Term (the “First Subsequent Program Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
). The Servicer shall have fifteen (ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3015) days of following its receipt of the First Subsequent Program Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”)during which it may accept such Subsequent Program Offer. If the Servicer accepts the Subsequent Program Offer, and then the Parties will negotiate to amend the Program Documents to incorporate the terms of such Subsequent Program Offer. If the Servicer does not timely accept, or rejects, the Subsequent Program Offer, the rights of the Purchaser Parties and the obligations of the Servicer under this Section 2.9 shall have not more than ninety (90) days from automatically terminate and the date of Buyer’s Notice to Servicer may enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days Subsequent Program with any party of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are its choosing. The Servicer agrees not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer party regarding a certificate of an authorized officer of Seller (A) summarizing Subsequent Program during the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Subsequent Program Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatePeriod.]
Appears in 1 contract
Samples: Program Agreement (OppFi Inc.)
Right of First Offer. (i) If Seller resizes the Project due The Owner shall, prior to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, offering its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth ownership interest in the Cover Sheet, Hotel to any third partyother potential purchaser, unless Seller first offersprovide the Operator with written notice, in writing, to sell to Buyer such Products from including the Project on the same Owner's proposal containing all material terms and conditions as this Agreement, subject on which it agrees to permitted modifications identified sell its ownership interests in subpart (ii) below, the Hotel on an “all cash” purchase price basis (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptanceROFO Offering Notice”), and then the Parties . The Operator shall have not more than ninety (90( ) days from the date of Buyer’s receipt of the ROFO Offering Notice to enter into a new power inform the Owner as to whether the Operator desires to purchase agreement, such ownership interests in substantially the same form as this Agreement, or amend this Agreement, subject Hotel on the terms set forth in the ROFO Offering Notice. If the Operator does not elect to CPUC Approval, if necessary; provided that purchase such interests on the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt basis of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejectsROFO Offering Notice, or fails to accept by Notice respond to Seller, Owner during the Revised Offer, then Seller will thereafter be period described above (i) the Owner is free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from its ownership interests in the Project Hotel to any third party unaffiliated Qualified Person subject to other applicable provisions of this Agreement (other than the provisions of Section 17.4(b) hereof which shall not be applicable), at a gross “all cash” purchase price equal to not less than that price set forth in the ROFO Offering Notice and otherwise on such the substantially similar terms and conditions as set forth those contained in the certificateROFO Offering Notice, and subject, in all instances, to assumption of this Agreement by such unaffiliated Qualified Person; and (ii) the rights of the Operator under this Section, with respect to such ROFO Offering Notice only, shall be deemed void and of no further force or effect; provided, however, that if the Owner has not executed a binding agreement or purchase and sale with a third party (“Third Party Purchase Contract”) as of the date ( ) days after the date that the Operator is deemed to have elected to decline the ROFO Offering Notice, or the Third Party Purchase Contract fails to close and is thereafter terminated, the Owner shall re-offer its ownership interests in the Hotel to the Operator in accordance with this Section 17.4(a) in the event it elects to continue to pursue such sale or any new purchase proposal.]
Appears in 1 contract
Samples: Hotel Management Agreement
Right of First Offer. (i) If Seller resizes Following the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer fifth anniversary of the Contract Capacity Commitment Stock Purchase Closing Date, so long as the Company has not completed an IPO, no Stockholder shall Transfer any of its Equity Securities other than to a Permitted Transferee or a sale by a Co-Sale Participant pursuant to Section 3.4 except as set forth below:
(a) Prior to any Transfer of Equity Securities by a Stockholder (the “Exclusivity PeriodOffering Holder”), neither Seller, its successors the Offering Holder shall deliver to the Company and assigns, nor its Affiliates shall enter into each other Stockholder that is not an obligation or agreement to sell or otherwise transfer any Products from the Project in excess Affiliate of the Contract Capacity CommitmentOffering Holder (collectively, up excluding the Company, the “ROFO Recipients”) written notice (the “Offer Notice”), stating such Offer Holder’s intention to effect such a Transfer, the Contract Capacity set forth in number of Equity Securities subject to such Transfer (the Cover Sheet“Offered Securities”), the price the Offering Holder proposes to any third partybe paid for the Offered Securities (the “First Offer Price”), unless Seller first offers, in writing, to sell to Buyer such Products from and the Project on the same other material terms and conditions as this Agreementof the proposed Transfer. The Offer Notice may require that the consummation of any sale of the Offered Securities to the Company or the ROFO Recipients occur on a date that is no less than 30 days, subject and no later than 60 days after the date of the Offer Notice (or, if FCC approval or consent is required in connection with the proposed Transfer, no later than the earlier of 30 days after such approval or consent has been obtained and six months after the date of the Offer Notice).
(b) Upon receipt of the Offer Notice, the Company will have an irrevocable non-transferable option to permitted modifications identified purchase all or a portion of the Offered Securities at the First Offer Price and otherwise on the terms and conditions described in subpart (ii) below, the Offer Notice (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer). The Company shall, Buyer shall Notify Seller within thirty (30) 15 days of from receipt of the Offer Notice, indicate whether or not it has accepted the First Offer subject by sending irrevocable written notice of any such acceptance to Buyer’s management approval the Offering Holder and CPUC Approval the ROFO Recipients indicating the number of Offered Shares to be purchased (the “Buyer’s Notice of First Offer AcceptanceAcceptance Notice”), and the Company shall then be obligated to purchase such number of Offered Securities on the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateOffer Notice. In the event the Company elects not to purchase any or all of the Offered Securities, the ROFO Recipients shall have the option to purchase at the First Offer Price all, but not less than all, of the Offered Securities with respect to which the Company has not exercised its option, and each of the ROFO Recipients shall, within 15 days from receipt of the Company’s Acceptance Notice, indicate to the Offering Holder and the Company if it has accepted the First Offer and, if so, the number of Offered Securities to be purchased by sending irrevocable written notice of such acceptance to the Offering Holder and the Company, and such ROFO Recipient shall then be obligated to purchase such number of Offered Securities on the terms and conditions set forth in the Offer Notice.]
(c) Notwithstanding any other provision of this Section 3.3, the ROFO Recipients shall not be permitted to purchase less than all of the Offered Securities without the consent of the Offering Holder. The number of shares that each ROFO Recipient shall be entitled to purchase upon the exercise of the right of first offer shall be equal to such ROFO Recipient’s Pro Rata Portion of the Offered Securities other than those as to which the Company has exercised its option. In the event any ROFO Recipient elects to purchase less than all of its Pro Rata Portion (such remaining securities, the “Section 3.3
Appears in 1 contract
Samples: Stockholders Agreement (PanAmSat Satellite HGS 3, Inc.)
Right of First Offer. The Company shall not sell (ior allow to be sold) If Seller resizes any EOP Project (or any of the related Project Entity's interests therein) to a third party for a price (the "THIRD PARTY PRICE") that is less than the Project due Price (or with respect to Permit Failurethe related Project Entity's interests in such Project, then for a period of three (3) years from the date on which Seller Notifies Buyer that portion of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up Price that would be attributable to the Contract Capacity set forth in the Cover Sheet, to such interests) or on any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the other material terms and conditions of such sale or transfer are not more favorable to the purchaser, taken as a whole, than the Sale Terms (disregarding the right of Wilsxx xx receive OP Units) unless Wilsxx xxxst delivers a new Pricing Notice specifying the Third Party Price as the Project Price and amending the Sale Terms to provide the same terms as for the proposed third party than those sale (the "MORE FAVORABLE TERMS"). EOP shall then have all rights set forth in this SECTION 11 with respect to such New Pricing Notice, including the right to deliver an Exercise Notice within the new Response Period, but the length of the First Offer Response Period shall be 30 days; provided, however, that if the Company has entered into an otherwise binding contract to Buyer. Ifsell an EOP Project at the Third Party Price on the More Favorable Terms with a binding closing date (the "THIRD PARTY CLOSING DATE") then if EOP delivers an Exercise Notice, during the Exclusivity Closing of EOP's purchase shall be a date specified by EOP in its discretion, but no later than the later of (i) the date 30 days after the expiration of the Response Period, Seller desires to enter into an obligation or agreement with (ii) the Third Party Closing Date, provided that, if (a) the More Favorable Terms provided for a third partyclosing date after the first business day that is one year after Project Completion, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (Bb) certifying any Third Party Closing Date is on or after the first business day that is one year after Project Completion, then at Wilsxx'x xxxe election, the proposed agreement with closing shall not occur until the first business day that is one year after Project Completion. If EOP does not deliver such an Exercise Notice, Wilsxx xxxl be entitled to complete the third party will not provide Seller with a lower rate sale of return than that offered the Project for an all cash price at the price and on the terms specified in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, New Pricing Notice delivered under this SECTION 11.7 within the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) time specified in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateSECTION 11.6.]
Appears in 1 contract
Samples: Operating Agreement (Equity Office Properties Trust)
Right of First Offer. (a) If, during the Option Period, any member of the Seller Group desires to sell any five (5) or more "AmeriSuites" hotels as a group (such group of hotels being hereinafter collectively referred to as the "First Offer Hotels"), then before offering the First Offer Hotels for sale to third parties, Seller shall (i) If Seller resizes deliver to Purchaser a notice (an "Offer") setting forth the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors price and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same all material terms and conditions as this Agreementupon which Seller would be willing to sell the First Offer Hotels, subject to permitted modifications identified in subpart and (ii) belowshall provide copies of, (or reasonable access to, all due diligence materials with respect to the “First Offer”) and Buyer either accepts or rejects such First Offer Hotels in accordance with Seller's possession or control (including occupancy, ADR and Rev PAR information, financial statements, title policies, title documents, surveys, environmental audits, zoning reports, income and expense statements, appraisals, operating agreements, engineering reports, PIPs, Star reports, budgets, litigation reports and similar materials). Within 30 days following receipt of the provisions herein.
Offer (such 30-day period, the "First Offer Response Period"), Purchaser shall by notice to Seller either (i) accept the Offer, (ii) If Buyer accepts the First deliver to Seller a counter-offer (a "Counter-Offer, Buyer shall Notify Seller within thirty (30") days setting forth a price and all of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable upon which Purchaser would be willing to the third party than those of purchase the First Offer Hotels, or (iii) elect not to Buyeraccept the Offer or deliver a Counter-Offer. If, If Purchaser shall fail to deliver notice of its election pursuant to the foregoing sentence during the Exclusivity First Offer Response Period, Purchaser shall be deemed conclusively to have elected not to accept the Offer or deliver a Counter-Offer.
(b) In the event that Purchaser delivers a Counter-Offer, within 10 days thereafter Seller desires may elect to enter into an obligation accept the Counter- Offer by delivering notice to Purchaser of such election.
(c) In the event that Purchaser does not elect to accept Seller's Offer or agreement with deliver a third partyCounter-Offer, Seller shall deliver be free to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in offer to sell the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, Hotels during the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project Period to any and all third party on such parties upon substantially the same terms and conditions as set forth in the certificateOffer, but at a price not less than an amount equal to 95% of the purchase price set forth in the Offer. In the event that Purchaser delivers a Counter-Offer and Seller does not accept such Counter-Offer, Seller shall be free to offer to sell the First Offer Hotels during the Offer Period to any and all third parties upon substantially the same terms and conditions as set forth in the Offer, but at a price not less than an amount equal to 100% of the purchase price set forth in the Offer. The "Offer Period" shall mean the period of six months following the earlier of the date of delivery to Seller of a Counter-Offer or, if none shall be delivered, the expiration of the First Offer Response Period.]
Appears in 1 contract
Right of First Offer. (a) If AOL proposes to Transfer all or any portion of its then-issued Subscribed Shares ("Offered Securities"), AOL shall (i) give prior written notice (a "Transfer Notice") to EES and the Company of AOL's desire to effect such Transfer, describing the number of Offered Securities AOL desires to sell and requesting that EES make an offer to purchase such Offered Securities. After receipt of the Transfer Notice, EES shall be entitled, but not obligated, for 30 days from the date of receipt of the Transfer Notice, to offer to purchase all, but not less than all, of the Offered Securities for cash by delivering a written notice specifying the terms of such offer (the "Offer") to AOL within such 30-day period. If Seller resizes the Project due EES fails to Permit Failuremake an Offer within such 30-day period, then AOL may for a period of three 90 days following the end of such 30-day period, Transfer such Offered Securities to any Person; PROVIDED THAT the prospective transferee delivers to the Company a document (3in form reasonably satisfactory to the Company) years from stating that the date on which Seller Notifies Buyer prospective transferee agrees to be bound by the terms of this Agreement as if it were AOL. If EES makes an Offer, then AOL shall be entitled, but not obligated, to accept the Offer within 10 days after its receipt thereof (the "Acceptance Deadline") by sending a written acceptance of such Offer in whole (and not in part) to EES. If such Offer is not accepted, then AOL may for a period of 90 days following the Acceptance Deadline, Transfer all (but not less than all) of such Offered Securities to any Person but only for a per share cash consideration exceeding the consideration per share offered in such Offer; PROVIDED that the prospective transferee delivers to the Company a document (in form reasonably satisfactory to the Company) stating that the prospective transferee agrees to be bound by the terms of this Agreement as if it were AOL. Each of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates securities issued upon a Transfer pursuant to this Section 5.3 shall enter into an obligation or agreement to sell or otherwise transfer any Products from bear the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity restrictive legends set forth in the Cover Sheet, to any third partySection 5.7, unless Seller first offersin the reasonable judgment of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. If the Offered Securities are not Transferred within the applicable 90-day period during which AOL may Transfer the Offered Securities as provided above, in writing, such Offered Securities must be re-offered to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer EES in accordance with the provisions hereinof this Section 5.3 if AOL still desires to Transfer the Offered Securities.
(iib) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt The closing of the First purchase of any shares to be purchased by EES pursuant to an accepted Offer subject pursuant to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”Section 5.3(a), unless otherwise agreed by AOL and then EES, will take place at the Parties offices of the Company in Houston, Texas on the fifth business day after the Acceptance Deadline; PROVIDED, HOWEVER that any such closing shall have not more than ninety (90) days from be delayed, to the date extent required, until the next succeeding business day following the expiration of Buyer’s Notice to enter into a new power purchase agreement, in substantially any required waiting periods under the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transferHSR Act, and to enter into agreements to sell or otherwise transferthe obtaining of all other necessary governmental approvals. At the closing, any Products from EES will pay the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as purchase price set forth in the certificateOffer in cash (by wire transfer or company check) solely upon AOL's delivery to EES of valid certificates or agreements evidencing all of the Offered Securities then being purchased pursuant to the Offer. Certificates or agreements representing such Offered Securities will be duly endorsed (with signature guaranteed) for delivery to EES. By delivery of such certificates or agreements to EES, AOL will execute such written evidence as EES may reasonably request to represent and warrant to EES that the Transferred Offered Securities are owned by AOL free and clear of all liens, adverse claims, and other encumbrances other than as provided in this Agreement. AOL will promptly perform, whether before or after any such closing, such additional acts (including, without limitation, executing and delivering additional documents) as are reasonably required by EES or the Company to effect more fully the transactions contemplated by this Section 5.3.]
(c) EES may Transfer its rights in whole under this Section 5.3 to one, but not more than one, transferee with respect to each Transfer Notice EES receives from AOL, without any consent or other action on the part of any other party hereto, to the Company or to an Affiliate of EES or the Company if, but only if, (i) such transferee is an "accredited investor" as such term is defined in Regulation D promulgated under the Securities Act, (ii) EES agrees to guarantee the performance of such transferee to purchase shares to the extent such transferee makes an offer, and AOL accepts such offer, in accordance with the provisions of this Section 5.3 and (iii) EES provides AOL with the name, address, phone and facsimile numbers and email address of the relevant contact person for such transferee.
Appears in 1 contract
Samples: Subscription Agreement (TNPC Inc)
Right of First Offer. Subject to Section 2.4(c), (i) If Seller resizes at any time after May 30, 2008, either the Project due to Permit FailureBerkshire Stockholders or, then for provided that no Trigger Event shall have occurred, the JH Stockholders or (ii) at any time during the 60-day period immediately following the occurrence of a period of three (3) years Trigger Event other than a Trigger Event resulting from the date on which Seller Notifies Buyer death or disability of Xxxxxx, the Contract Capacity Commitment Berkshire Stockholders (such Stockholders referred to herein as the “Exclusivity PeriodRequesting Party”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement may offer to sell or otherwise transfer any Products from the Project in excess all (but not less than all) of the Contract Capacity CommitmentShares held by such Requesting Party to whichever of the Berkshire Stockholders or the JH Stockholders is not the Requesting Party (the “Non-Requesting Party”) by delivery of a notice, up stating such Stockholders’ desire to sell such Shares, the number of Shares proposed to be transferred and the price (the “Offer Price”) and other terms on which such Stockholders are offering such Shares (an “Offer Notice”). Each Offer Notice shall constitute an irrevocable offer by the Requesting Party to sell to the Contract Capacity Non-Requesting Party the Shares described in the Offer Notice on the terms set forth in the Cover SheetOffer Notice.
(i) No later than the 30th day following the delivery of the Offer Notice (the “Offer Termination Date”), the Non-Requesting Party may elect to any third party, unless Seller first offers, offer to purchase the Shares described in writing, to sell to Buyer such Products from the Project Offer Notice for the Offer Price on the same terms and conditions as this Agreementset forth in the Offer Notice (any such offer, subject to permitted modifications identified in subpart (ii) below, (the a “First Offer”) ). If the Non-Requesting Party fails to elect to purchase all the shares offered in the Offer Notice, the Requesting Party shall be under no obligation to sell the Shares offered in the Offer Notice to the Non-Requesting Party and Buyer either accepts or rejects such First Offer in accordance with may demand that the provisions hereinCompany pursue and consummate a Compelled Sale pursuant to Section 2.4(b).
(ii) If Buyer accepts the First OfferNon-Requesting Party elects to acquire the Shares pursuant to this Section 2.4(a), Buyer then promptly after notifying the Requesting Party of such election (but in no event more than 5 business days after) the Non-Requesting Party shall Notify Seller within thirty notify the Mezzanine Stockholders and the Other Stockholders in writing of such election, and each Mezzanine Stockholder and Other Stockholder shall have the right to sell all (30but not less than all) days of receipt of their Shares to the Non-Requesting Party upon the same terms (including the Offer Price) set forth in the Offer Notice. Such election to participate in the First Offer subject must be exercised by notifying the Non-Requesting Party in writing of such election no later than 30 days following notification by the Non-Requesting Party pursuant to Buyerthis Section 2.4(a)(ii). In connection with any Transfer under this section, the participating Stockholders shall be obligated to become liable in respect of any representations, warranties, covenants, indemnities or otherwise to the transferee solely to the extent provided in the immediately following sentence. Without limiting the generality of the foregoing, each participating Stockholder agrees to execute and deliver such agreements as may be reasonably specified by the Non-Requesting Party to which the Requesting Party will also be party, including, without limitation, agreements to (A) (1) make individual representations, warranties, covenants and other agreements as to the unencumbered title to its Shares and its power, authority and legal right to Transfer such Shares and the absence of any Adverse Claim with respect to such Shares and (2) be liable without limitation as to such representations, warranties, covenants and other agreements and (B) be liable (whether by purchase price adjustment, indemnity payments or otherwise) in respect of representations, warranties, covenants and agreements in respect of the Company and its subsidiaries; provided, however, that the aggregate amount of liability described in this clause (ii) in connection with any Transfer under this Section shall not exceed the lesser of (Y) such participating Stockholder’s management approval pro rata portion of any such liability, to be determined in accordance with such participating Stockholder’s portion of the total number of Shares included in such Transfer or (Z) the proceeds to such participating Stockholder in connection with such Transfer.
(iii) The closing of the purchase and CPUC Approval (“Buyer’s Notice sale of First Offer Acceptance”), any Shares to be acquired by the Non-Requesting Party pursuant to this Section 2.4(a) shall be held at the offices of the Company on such dates and then times as the Parties shall have not more than parties may agree but in all events within ninety (90) days from of the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureOffer Termination Date.
(iiiiv) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of At any such offerclosing, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller Non-Requesting Party shall deliver to Buyer a certificate the Requesting Party (and any other Stockholders who elect to participate pursuant to Section 2.4(a)(ii)) against delivery of an authorized officer of Seller (A) summarizing certificates duly endorsed and stock powers representing the material terms and conditions of such agreement and (B) certifying that Shares being acquired by the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transferNon-Requesting Party, the Products from consideration on the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable same terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateOffer Notice, payable in respect of the Shares being purchased.]
Appears in 1 contract
Right of First Offer. (a) If PGE terminates this Agreement due to a Seller Event of Default, neither Seller nor Seller’s Affiliates may sell, market or deliver any quantity of the Products associated with or attributable to the Project to a party other than PGE for a period of two (2) years if Seller Event of Default is prior to the Commercial Operation Date or six (6) months if Seller Event of Default is after the Commercial Operation Date following the termination date of this Agreement, unless before selling, marketing or delivering such Products, or entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Products on terms and conditions materially similar to the terms and conditions contained in this Agreement (excluding price, which may be adjusted to include updated costs, including, but not limited to, materials, labor and costs of capital).
(i) If PGE fails to accept an offer made by Seller resizes the Project due pursuant to Permit Failure, then for a period of three Section 1.1.1(a)5.8(a) within forty-five (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3045) days of Buyer’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of the First Offer subject Products associated with or attributable to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party and on any terms in its sole discretion. Buyer’s acceptance of such an offer within forty-five (45) days of Buyer’s receipt thereof may be conditioned on PGE obtaining approval from Buyer’s Board of Directors or the Oregon Public Utility Commission.
(ii) Neither Seller nor Seller’s Affiliates may sell or transfer the Storage Facility, or any part thereof, or land rights or interests in the Site so long as the limitations contained in this Section 5.8 apply, unless the transferee agrees in writing to be bound by the terms and conditions as set forth in this Section 5.8.
(iii) Subject to Section 5.912.4(a)(i) Seller shall indemnify and hold PGE harmless from all benefits lost and other damages sustained by PGE as a result of any breach by Seller of its covenants contained within this Section 5.8. This provision shall survive the certificatetermination of this Agreement.]
Appears in 1 contract
Samples: Wholesale Renewable Power and Storage Capacity Purchase Agreement
Right of First Offer. (a) On or after the fifth anniversary of the date of this Agreement, prior to BRS soliciting any BRS Third Party Sale, BRS may give notice to the Company and, if the solicitation of the BRS Third Party Offer occurs prior to payment in full of the Cumulative Preferred Return and the redemption in full of the Preferred Units, also to the other Preferred Unit Members and thereafter, when the Preferred Units are deemed fully retired, BRS shall give said notice to the Common Unit Members, in lieu of said notice to the other Company Preferred Unit Members (all of said other Preferred and Common Unit Members individually and/or collectively, the “Other Members”), of BRS’ intention to effect a BRS Third Party Sale (such notice being herein referred to as a “First Offer Opportunity Notice”). BRS shall not give more than one First Offer Opportunity Notice in any six-month period.
(b) Upon the receipt of a First Offer Opportunity Notice:
(i) If Seller resizes the Project due to Permit FailureCompany shall have the right, then for during a period of three thirty (330) years from days following the date on which Seller Notifies Buyer receipt of the Contract Capacity Commitment First Offer Opportunity Notice (the “Exclusivity Company First Offer Election Period”), neither Sellerto offer, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement by notice delivered to sell or otherwise transfer any Products from BRS prior to the Project in excess expiration of the Contract Capacity CommitmentCompany First Offer Election Period (a “Company First Offer Notice”), up to (x) purchase all (but not less than all) of the Contract Capacity set forth BRS Units at a price in cash (the “Company First Offer Price”) stated by the Company in the Cover SheetCompany First Offer Notice (a “Company First Offer”), to any third partyand (y) repay in full the “BRS Loans” (as defined in the Purchase Agreement), unless Seller first offersincluding without limitation the accrued and unpaid interest thereunder, in writingand release Bruckmann, to sell to Buyer such Products from Rxxxxx, Xxxxxxxx & Co II, L.P. (“BRS-LP”) of its obligations under the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart BRS Loan Commitment; and
(ii) belowif the Company shall not have timely given to BRS a Company First Offer Notice, then the Other Members shall have the right, during a period of fifteen (15) days following the expiration of the Company First Offer Election Period (the “Other Members First Offer Election Period”), to elect, by notice delivered to BRS prior to the expiration of the Other Members First Offer Election Period (an “Other Members First Offer Notice”), to (x) purchase all (but not less than all) of the BRS Units at a price in cash (the “Other Members First Offer Price”) stated by the Other Members in the Other Members First Offer Notice (an “Other Members First Offer”), and (y) purchase in full the BRS Loans at a price equal to the principal amount and accrued and unpaid interest thereunder and assume the obligations of BRS-LP under the BRS Loan Commitment. If BRS accepts a Company First Offer or an Other Members First Offer during the applicable Company First Offer Election Period or Other Members First Offer Election Period, then a closing on the sale and purchase of the BRS Units and the repayment or purchase of the BRS Loans, and the release or assumption of the BRS Loan Commitment, shall occur within ten (10) days after the expiration of the Company First Offer Election Period or the Other Members First Offer Election Period, as applicable.
(i) In the event that, after receiving a timely Company First Offer or a timely Other Members First Offer, BRS shall not accept such timely Company First Offer or timely Other Members First Offer, then BRS may, within 120 days after the expiration of the Company First Offer Election Period or the Other Members First Offer Election Period, as applicable, effect a sale and transfer of the BRS Units and, at the option of BRS-LP, a sale of the BRS Loans and an assignment of the BRS Loan Commitment, at any time following the expiration of the Other Members First Offer Election Period on such terms (including as to price and form of consideration) and Buyer either accepts or rejects such to a purchaser and transferee (other than a Competitor) as BRS and BRS-LP shall elect, provided that the price (including without limitation the fair market value of any non-cash consideration) of the BRS Units is not less than 110% the Company First Offer in accordance with Price or 110% the Other Members First Offer Price; and the provisions hereinof Sections 1.2(a) and 1.2(b) shall cease to be applicable to any BRS Third Party Sale and to any further transfer by any transferee (or further transferee) of the BRS Units. In the event that BRS and the Company shall disagree as to the fair market value of any non-cash consideration, then investment banking or financial advisory firms selected by each of BRS and the Company shall select a third investment banking or financial advisory firm (the “Arbiter”) to determine the fair market value of any non-cash consideration, and the determination of the Arbiter shall be final and binding on the Company, the Members and BRS; however, (x) if the Arbiter shall determine that the fair market value of the non-cash consideration is at least 95% of the fair market value determination of BRS, then the Company shall pay the costs of the Arbiter, or (y) if the Arbiter shall determine that the fair market value of the non-cash consideration is less than 95% of the fair market value determination of BRS, then BRS shall pay the costs of the Arbiter.
(ii) If Buyer accepts In the event that BRS does not receive a timely Company First Offer or a timely Other Members First Offer, Buyer or BRS shall Notify Seller within thirty (30) days have received a Company First Offer or an Other Members First Offer but the Company or the Other Members shall have, for any reason other than a breach by BRS of receipt its obligations under this Section 1.2, failed to timely close on the purchase of the First Offer subject to Buyer’s management approval BRS Units and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power repayment or purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. IfBRS Loans and the release or assumption of the BRS Loan Commitment, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (Aas provided in Section 1.2(b) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyerhereof, then Seller BRS may not sell or otherwise transfereffect a sale and transfer of the BRS Units and, or enter into at the option of BRS-LP, a sale of the BRS Loans and an agreement to sell or otherwise transferassignment of the BRS Loan Commitment, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will at any time thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms (including as to price and conditions form of consideration) and to a purchaser and transferee (other than a Competitor) as set forth in BRS shall elect; and the certificateprovisions of Sections 1.2(a) and 1.2(b) shall cease to be applicable to any such BRS Third Party Sale and to any further transfer by any transferee (or further transferee) of the BRS Units.]
Appears in 1 contract
Samples: Unit Purchase and Sale Agreement (Heritage-Crystal Clean, Inc.)
Right of First Offer. (i) If Seller resizes In the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, event any Stockholder or its successors and assigns, nor its Affiliates shall enter into an obligation or agreement Affiliate desires to sell or otherwise transfer dispose of any Products from of its Shares, such selling Stockholder or Affiliate (the Project in excess "Selling Party") shall first deliver a written notice (the "Section 4.1 Notice") to the other Stockholder (the "Second Party") which notice shall specify the Shares to be sold (the "Offered Shares"). Within thirty (30) days after receipt of the Contract Capacity CommitmentSection 4.1 Notice by the Second Party, up the Second Party shall have the right to offer to purchase (the Contract Capacity "First Offer") all, but not less than all, of the Offered Shares at a price which price shall be payable only in cash (the "First Offer Price"), and on other terms and conditions as shall be set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”. Within thirty (30) and Buyer days after receipt of the First Offer, the Selling Party shall either accepts accept or rejects such reject the First Offer in accordance with Offer. If the provisions herein.
(ii) If Buyer Selling Party accepts the First Offer, Buyer the Selling Party shall Notify Seller within thirty sell, and the Second Party shall purchase, the Offered Shares at a closing to be held at a time not later than sixty (3060) days of receipt (or such necessary longer period specified in Section 4.2) after the Selling Party's acceptance of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice at the place as may be mutually agreed upon, at which time the Offered Shares shall be delivered free and clear of First Offer Acceptance”), all liens which may have been imposed on the Offered Shares and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to connected with the third party than those financing or operation of the Company itself against payment of the First Offer Price. In order to Buyer. Ifcomply with applicable regulatory requirements, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller Second Party may designate (A) summarizing a third party to purchase any portion of the material Offered Shares which the Second Party is committed to purchase hereunder if the Offered Shares constitute all of Selling Party's Shares or (B) a third party reasonably acceptable to the Selling Party to purchase any portion of the Offered Shares which the Second Party is committed to purchase hereunder if the Offered Shares constitute less than all of the Selling Party's Shares. If the Selling Party rejects or does not timely accept the First Offer, then the Selling Party shall have one hundred and twenty (120) days (or such necessary longer period specified in Section 4.2) following such rejection within which to consummate the sale of all of the Offered Shares at a price per share in cash greater than the First Offer Price, and in all other respects upon terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return no less favorable than that offered those specified in the First Offer to BuyerOffer. If Seller is unable to deliver no such a certificate to Buyer, then Seller may not sell sale occurs within such 120-day period (or otherwise transfer, or enter into an agreement to sell or otherwise transferlonger period as described in Section 4.2), the Products from Offered Shares shall again be subject to all of the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as restrictions set forth in the certificatethis Section 4.1.]
Appears in 1 contract
Right of First Offer. (iThe following is hereby added at the end of Paragraph 48(a) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (Lease: “Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from If Tenant does not accept the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval Notice within such ten (“Buyer’s Notice of First Offer Acceptance”)10) business day period, and then the Parties Landlord shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free entitled to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on for a purchase price which is not materially more favorable to such terms and conditions as set forth third party than the purchase price proposed by Landlord to Tenant in the certificateFirst Offer Notice. The purchase price shall be deemed to be “materially more favorable” to such third party if it is less than ninety-seven percent (97%) of the purchase price proposed by Landlord to Tenant in the First Offer Notice. Should Landlord propose to sell the Project to a third party at a purchase price materially more favorable to said party than the purchase price proposed by Landlord to Tenant in the First Offer Notice, Landlord shall first present such revised purchase price to Tenant in writing and Tenant shall have a period of ten (10) business days within which to notify Landlord in writing of Tenant’s acceptance or rejection of such revised purchase price. If Landlord delivers a First Offer Notice to Tenant and Tenant fails to exercise its rights to purchase the Project and Landlord sells the Project to a third party (subject to Tenant’s rights hereunder), thereupon Tenant’s right of first offer shall terminate.]”
Appears in 1 contract
Samples: Assignment and First Amendment to Lease Agreement (Griffin Capital Net Lease REIT, Inc.)
Right of First Offer. (ia) If Seller resizes any Investor Group Holder proposes to Transfer all or any portion of its Common Stock or Common Stock Equivalents, other than to a Permitted Investor Transferee or pursuant to Sections 3.5, 3.6 or 3.12 hereof ("Offered Securities"), such Investor Group Holder shall, prior to providing information to or engaging in any discussions with another Person (other than a Permitted Investor Transferee) with respect to such proposed Transfer, give prior written notice (a "Transfer Notice") to EES and the Project due Company of such Investor Group Holder's desire to Permit Failureeffect such Transfer, then for a period describing the number and type of three (3) years from Offered Securities that such Investor Group Holder desires to sell and offering EES the date on which Seller Notifies Buyer opportunity to make an offer to purchase such Offered Securities. After receipt of the Contract Capacity Commitment (“Exclusivity Period”)Transfer Notice, neither SellerEES shall be entitled, its successors and assignsbut not obligated, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within for thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice receipt of the Transfer Notice, to enter into offer to purchase all, but not less than all, of the Offered Securities for cash by delivering a new power written notice specifying the terms of such offer (the "Offer") to such Investor Group Holder within such thirty (30)-day period, PROVIDED, HOWEVER, that if none of the EES Group Holders or their respective Affiliates could lawfully purchase agreementthe Offered Securities, in substantially EES shall as promptly as practicable advise the same form as this AgreementInvestor Group Holder of such fact, or amend this Agreementwhich notice shall constitute notice that EES will not make an Offer to purchase such securities and whereupon such thirty (30)-day period shall be deemed to have ended. If EES fails to make an Offer within such thirty (30)-day period, the Investor Group Holder may for a period of ninety (90) days following the end of such thirty (30)-day period, Transfer such Offered Securities to any Person, subject to CPUC Approvalcompliance with Section 3.7. If EES makes an Offer, if necessary; provided that then the Contract Price may only Investor Group Holder shall be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails entitled, but not obligated, to accept Seller’s First the Offer within thirty (30) days of after its receipt thereof (the "Acceptance Deadline") by sending a written acceptance of such offerOffer in whole (and not in part) to EES. If such Offer is not accepted, Seller shall thereafter be free to sell or otherwise transferthen the Investor Group Holder may for a period of ninety (90) days following the Acceptance Deadline, and to enter into agreements to sell or otherwise transfer, any Products from the Project Transfer all (but not less than all) of such Offered Securities to any third partyPerson but only for an aggregate consideration exceeding the aggregate consideration offered in such Offer by EES (with the value of any consideration other than cash to be received being determined by agreement between EES and such Investor Group Holder for such purpose), so long as subject to compliance with Section 3.7. Each of the material terms and conditions certificates representing Offered Securities issued upon a Transfer pursuant to this Section 3.4 shall bear the restrictive legends set forth in Section 3.10, unless in the reasonable judgment of counsel for the Company, or counsel to the Investor Group Holder reasonably acceptable to the Company, such sale or transfer legend is not required in order to ensure compliance with the Securities Act. If the Offered Securities are not more favorable Transferred within the applicable ninety (90)-day period during which the Investor Group Holder may Transfer the Offered Securities as provided above, such Offered Securities must be re-offered to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) EES in accordance with subpart the provisions of this Section 3.4 if the Investor Group Holder still desires to Transfer the Offered Securities.
(iib) above. If within thirty The closing of the purchase of any Offered Securities to be purchased by EES pursuant to an accepted Offer pursuant to Section 3.4(a), unless otherwise agreed by the Investor Group Holder and EES, will take place at the offices of the Company in Houston, Texas on the fifth Business Day after the Acceptance Deadline or such other date agreed upon by the Investor Group Holders and EES; PROVIDED, HOWEVER, that any such closing shall be delayed, to the extent required, until two (302) days Business Days following the expiration of receipt any required waiting periods under the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act of Seller’s Revised Offer 1976, as amended ("HSR Act") and approvals under the Buyer rejectsFederal Power Act, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transferas amended ("FPA"), and to enter into agreements to sell the obtaining of all other governmental approvals deemed reasonably necessary by the Investor Group Holder or otherwise transferEES. At the closing, such Products from EES will pay the Project to any third party on such terms and conditions as purchase price set forth in the certificateOffer in cash (by wire transfer) solely upon the Investor Group Holder's delivery to EES of valid certificates or agreements evidencing all of the Offered Securities then being purchased pursuant to the Offer. Certificates or instruments representing such Offered Securities will be duly endorsed (with signature guaranteed) for delivery to EES. In connection with the delivery of such certificates or agreements to EES, the Investor Group Holder will execute such written evidence as EES may reasonably request to represent and warrant to EES that the Transferred Offered Securities are owned by such Investor Group Holder free and clear of all liens, adverse claims, and other encumbrances other than as provided in this Agreement. The Investor Group Holder will promptly perform, whether before or after any such closing, such additional acts (including, without limitation, executing and delivering additional documents) as are reasonably required by EES to effect more fully the transactions contemplated by this Section 3.4.]
(c) The rights of EES under this Section 3.4 with respect to any proposed Transfer of Offered Securities may be Transferred in whole but not in part by EES, without any consent or other action on the part of any other Party hereto, to any EES Group Holder or to an Affiliate of any EES Group Holder.
Appears in 1 contract
Right of First Offer. (ia) If Seller resizes PGE terminates this Agreement before the Project Commercial Operation Date due to Permit Failurea Seller Event of Default, then neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Products associated with or attributable to the Facility to a party other than PGE for a period of two (2) years following the termination date of this Agreement, unless before selling, marketing or delivering such Products, or entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Products on terms and conditions materially similar to the terms and conditions contained in this Agreement. If PGE terminates this Agreement after the Commercial Operation Date due to a Seller Event of Default, neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Projects associated with or attributable to the Project to a party other than PGE on a long term basis (for three (3) months or longer) for a period of two (2) years from following the termination date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) belowunless before selling, (the “First Offer”) and Buyer either accepts marketing or rejects delivering such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this AgreementProducts, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter entering into an agreement to sell, market or deliver such Products, Seller or Seller’s Affiliates provide PGE with a written offer to sell or otherwise transfer, the Products from at the Project without first offering to sell or otherwise transfer such Products to Buyer price and on such more favorable terms and conditions materially similar to the terms and conditions contained in this Agreement.
(the “Revised Offer”b) in accordance with subpart If PGE fails to accept an offer made by Seller pursuant to Section 3.1.19(a) within forty-five (ii) above. If within thirty (3045) days of PGE’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of Seller’s Revised Offer the Buyer rejects, Products associated with or fails attributable to accept by Notice the Facility at the price offered to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project PGE to any third party and on such any terms and conditions as in its sole discretion; provided that any offer proposed by Seller to a third party at a price less than the price set forth in this Agreement shall be subject to Seller providing a new written offer to sell the certificate.]Facility Output to PGE pursuant to the requirements contained in this Section
Appears in 1 contract
Samples: Wholesale Renewable Power and Storage Capacity Purchase Agreement
Right of First Offer. 11.1.1 Notwithstanding anything contained in this Lease to the contrary, provided that (i) If Seller resizes no Event of Default by Tenant has occurred under this Lease, and (ii) the Project due Tenant is Ionis Pharmaceuticals, Inc., or its affiliate, if Landlord intends to Permit Failureoffer the Premises (or any portion thereof) for sale to an unaffiliated third party, then for a period of three (3) years from the date on which Seller Notifies Buyer Landlord shall promptly notify Tenant of the Contract Capacity Commitment same in writing (the “Exclusivity PeriodOffer Notice”), neither Seller, its successors ) and assigns, nor its Affiliates shall enter into an obligation or agreement indicate the terms and conditions upon which Xxxxxxxx is willing to sell or otherwise transfer any Products from accept for the Project in excess sale of the Contract Capacity Commitment, up Premises to a third party. Tenant may elect to purchase the Contract Capacity Premises (or portion thereof) on the terms and conditions set forth in the Cover Sheet, to any third party, unless Seller first offers, Offer Notice by notifying Landlord in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, writing (the “First OfferElection Notice”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
of its election no later than fifteen (ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (3015) days of receipt of after the First Offer subject to Buyer’s management approval and CPUC Approval Notice, which notice shall be accompanied by the Option Deposit (“Buyer’s Notice of First Offer Acceptance”defined herein), and then the Parties sale of the Premises shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable consummated pursuant to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with terms hereof on a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions date (the “Revised OfferClosing Date”) in accordance with subpart within sixty (ii) above. If within thirty (3060) days after the Election Notice, such date to be mutually agreed upon by Landlord or Xxxxxx. In the event of receipt any of Seller’s Revised Offer the Buyer rejectsfollowing: (x) Tenant fails to deliver the Election Notice or the Option Deposit to Landlord on or before the expiration of the 15-day period set forth above, (y) Tenant fails to close on its acquisition of the Premises on or before the Closing Date, or fails to accept by (z) Landlord provides an Offer Notice to Seller, Tenant and Tenant does not exercise its right to purchase the Revised OfferPremises, then Seller will in each case Tenant shall be deemed to have waived its right to purchase the Premises and thereafter Tenant’s rights under this Article 11 shall be free null and void and of no further force or effect. The term “Option Deposit” shall mean the amount of cash deposit required in the Offer Notice or, if no cash deposit is specified in the Offer Notice, a sum equal to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from five percent (5%) of the Project to any third party on such terms and conditions as purchase price for the Premises set forth in the certificateOffer Notice.]
Appears in 1 contract
Right of First Offer. (i) If Seller resizes So long as Xx. Xxxxxxxxxxxx is employed by Acquisition, in the Project due event Acquisition intends to Permit Failuresell, then for a period of three (3) years from the date on which Seller Notifies Buyer out of the Contract Capacity Commitment ordinary course of business, substantially all of the assets acquired by it from Switchboard (“Exclusivity Period”the "FIRST RIGHT ASSETS"), neither Seller, Acquisition shall notify Xx. Xxxxxxxxxxxx of its successors and assigns, nor its Affiliates shall enter into an obligation or agreement intention to sell or otherwise transfer any Products the First Right Assets (the "OFFER NOTICE"). The Offer Notice shall contain the principal terms, including the price, upon which Acquisition desires to sell the First Right Assets. Xx. Xxxxxxxxxxxx shall have five business days from the Project in excess receipt of the Contract Capacity Commitment, up Offer Notice in which to notify Acquisition that he elects to acquire the Contract Capacity First Right Assets on the terms set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) Notice. If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx Xx. Xxxxxxxxxxxx rejects or fails to accept Seller’s First in writing the Offer Notice within thirty (30) days of receipt of such offerfive business day period, Seller Acquisition shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfernegotiations with third parties for the sale of the First Right Assets. However, Acquisition shall not enter into any Products from agreement for the Project to any sale of the First Right Assets with a third party, so long as the material party on terms and conditions of such sale or transfer are not more favorable to the third party than those terms contained in the Offer Notice. In the event Xx. Xxxxxxxxxxxx timely accepts the terms set forth in the Offer Notice, Acquisition and Xx. Xxxxxxxxxxxx shall negotiate an appropriate definitive agreement for the sale and purchase of the First Right Assets, including the terms set forth in the Offer to BuyerNotice. IfHowever, during if for any reason Acquisition and Xx. Xxxxxxxxxxxx shall not have entered into such definitive agreement within thirty days after the Exclusivity Perioddate Xx. Xxxxxxxxxxxx accepts the Offer Notice, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate all of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered Xx. Xxxxxxxxxxxx'x rights in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement Right Assets shall expire and Acquisition shall have the right to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project First Right Assets to any third party on such any terms and conditions as set forth acceptable to Acquisition in its sole discretion. Subject to the certificatelast sentence of this Section 12.1, Acquisition shall be obligated to offer the First Right Assets to Xx. Xxxxxxxxxxxx each time Acquisition makes a new offer to sell the First Right Assets on terms that are more favorable to the potential purchaser than the previous offer. If not sooner terminated, Xx. Xxxxxxxxxxxx'x rights under this subsection shall expire on the fifth anniversary of the Closing Date.]
Appears in 1 contract
Right of First Offer. (ia) If Seller resizes Following the Project due issue of a Sale Process Notice, the Selling Member will, subject to Permit Failureany overriding obligations it may have under applicable Laws, then deal exclusively with the Other Member in good faith to negotiate terms of sale for the relevant Membership Interests for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days Business Days from the date of receipt by the Other Member of the Sale Process Notice (the "Exclusive Dealing Period").
(b) If the Selling Member and the Other Member:
(1) reach agreement for the sale of the relevant Membership Interests during the Exclusive Dealing Period, the Selling Member and the Other Member must promptly enter into a sale agreement for the relevant Membership Interests which contains the terms agreed between the parties; or
(2) do not reach agreement for the sale of the relevant Membership Interests before the end of the Exclusive Dealing Period, the Selling Member will, on the final day of the Exclusive Dealing Period, offer the relevant Membership Interests to the Other Member on terms acceptable to the Selling Member (the "Offer Notice").
(c) The Other Member may, within ten (10) Business Days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval Notice (“Buyer’s Notice of First the "Offer Acceptance”Period"), and then either:
(1) accept or reject the Parties shall have offer; or
(2) make a counteroffer, for the relevant Membership Interests.
(d) If:
(1) the Other Member does not more than ninety accept the offer within the Offer Period; and
(902) days from the date Selling Member does not accept any counteroffer for the relevant Membership Interests made by the Other Member on or before the expiration of Buyer’s Notice to enter into a new power purchase agreementthe Offer Period, in substantially the same form as this Agreement, or amend this Agreementthen, subject to CPUC ApprovalSection 10.3(f), Section 10.3(g) and Section 10.3(i), the Selling Member may sell or assign the relevant Membership Interests to a third party (the "Third Party Purchaser").
(e) Following the expiration of the Exclusive Dealing Period plus the Offer Period, if necessarythe Selling Member wishes to sell the relevant Membership Interests to a prospective Third Party Purchaser:
(1) the Other Member must provide reasonable access to the Project Site to any prospective Third Party Purchaser of the relevant Membership Interests at reasonable times and upon reasonable notice;
(2) the Company must provide reasonable access to books, records, operational, engineering, design and legal information relevant to the Project requested by any prospective Third Party Purchaser of the relevant Membership Interests upon reasonable notice; and
(3) the Other Member and Company must provide such other reasonable assistance that the Selling Member may request in relation to the prospective sale, provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming Selling Member bears the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable cost to the third party than those Other Member of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement complying with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller this Subsection (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatee).]
Appears in 1 contract
Right of First Offer. The Parties recognize that MAYO may continue to conduct internal research using the Licensed Technology, as it determines in its discretion. In the event that MAYO develops any other application related to the Licensed Technology but outside the scope of the license granted under this Agreement (a “New Product”), MAYO hereby grants to ACORDA a right of first offer with respect to rights for any such New Product in the Field, as follows:
(a) In the event that, at any time during the term of this Agreement, MAYO intends to offer to a third party any rights to any New Product or receives an offer from a third party to acquire any rights to any New Product, MAYO shall first offer such rights to ACORDA, in writing, on terms no less favorable to ACORDA than those to be offered to, or offered by, such third party
(b) Within 30 days after receipt of any such offer, ACORDA shall notify MAYO in writing as to whether it wishes to obtain such rights on such terms. If ACORDA provides timely notice that ACORDA wishes to obtain such rights, then the Parties shall conduct exclusive negotiations in good faith and conclude an agreement incorporating such terms within 120 days thereafter.
(c) In the event that (i) If Seller resizes the Project due ACORDA gives MAYO notice that ACORDA does not wish to Permit Failureobtain such rights, or (ii) ACORDA does not respond to MAYO’s notice within 30 days after receipt thereof, then MAYO shall have the unrestricted right to enter into an agreement with a third party for such rights.
(d) In the event that the parties enter into negotiations pursuant to Section 2.4(b), but are unable to agree upon the terms of such rights, despite the use of good faith efforts, during the 120-day period set forth in Section 2.4(b), then MAYO shall have the right, for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”)six months thereafter, neither Seller, its successors and assigns, nor its Affiliates shall to enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any with a third party, unless Seller first offers, in writing, to sell to Buyer party for such Products from the Project rights on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not no more favorable to the such third party than those of last offered to ACORDA pursuant to this Section 2.4. In the First Offer to Buyer. If, during the Exclusivity Period, Seller desires event that MAYO wishes to enter into such an obligation or agreement with a on terms more favorable to such third party, Seller MAYO shall deliver reoffer such terms to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) ACORDA in accordance with subpart (iithis Section 2.4. MAYO’s obligation to reoffer to ACORDA any particular New Product it has not licensed to a third party during the six month period contemplated in the first sentence of this Section 2.4(d) above. If within thirty (30) days shall continue for the term of receipt of Seller’s Revised Offer the Buyer rejectsthis Agreement, and if MAYO continues its internal research related to such New Product, it will disclose to ACORDA any material new information, technology, or fails data developed by MAYO related to accept by Notice the New Product to Seller, the Revised Offer, then Seller will thereafter be free permit ACORDA to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateevaluate MAYO’s reoffer.]
Appears in 1 contract
Right of First Offer. Upon the Close of Escrow, in addition to the other documents delivered as provided herein, RMV and Buyer shall enter into a right of first offer agreement in a form reasonably acceptable to Buyer (i) If Seller resizes the Project due a “ROFO Agreement”), pursuant to Permit Failurewhich RMV will agree, then for a period of three twenty (320) years from after the date on which Closing Date, to provide Buyer with a onetime right of first offer to buy that certain real property known as Lot 3 and more particularly described in Exhibit “S”; provided that if Buyer declines the right to exercise the right of first offer due to the purchase price, then Buyer shall notify Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement price it would be willing to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, pay (the “First OfferAcceptable Price”) and Buyer either accepts if Seller subsequently is offering Lot 3 at a price that is equal to or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt less than 105% of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this AgreementAcceptable Price, or amend this Agreement, subject to CPUC Approval, if necessary; provided receives an offer that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with accept from a third partyparty to sell the Property at a price that is equal to or less than 105% of the Acceptable Price, Seller then Buyer shall deliver to Buyer a certificate once again have the right of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered first offer as provided in the First Offer ROFO Agreement. At a minimum, the ROFO Agreement shall provide that a memorandum of the agreement shall be recorded against Xxx 0 xxxx xxx Xxxxx xx Xxxxxx and that Buyer’s rights thereunder shall be subject and subordinate to the rights of Harbor Freight. RMV agrees to provide Buyer comments, if any, to the form of the ROFO Agreement within five (5) days after receipt of drafts from Buyer. If Seller is unable The parties shall work together in good faith to deliver such a certificate draft, negotiate and approve the ROFO Agreement prior to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from expiration of the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transferContingency Period, and the ROFO Agreement shall be an additional closing document to enter into agreements to sell or otherwise transfer, such Products from be executed by the Project to any third party on such terms and conditions as set forth in parties upon the certificateClose of Escrow.]
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Right of First Offer. (ia) If Seller resizes WM shall have the Project due exclusive right of first offer to Permit Failuresupply Genomatica, then its Affiliates and its Third Party Licensees (the “Supplied Parties”) with such quantities of Waste as are necessary to satisfy 100% of their Waste requirements for the production of […***…] within the Field and Territory using the Program Technology, including any research & development or pilot production requirements (the “Feedstock Waste”). Upon determination by a Supplied Party that Feedstock Waste (or additional quantities of Feedstock Waste) will be required, the Supplied Party shall deliver to WM a written notice (the “First Offer Notice”) stating, among other things, the location of the facility requiring Feedstock Waste and the amount of anticipated requirements of Feedstock Waste for a specified period of three time (3) years from the date on which Seller Notifies Buyer “Feedstock Requirements”)]. Upon receipt of the Contract Capacity Commitment First Offer Notice, WM shall have the right within 15 days following receipt of the First Offer Notice (the “Exclusivity First Offer Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement ) to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, make a written offer (the “First Offer”) and Buyer either accepts to supply all or rejects such a portion of the Feedstock Waste to satisfy the Feedstock Requirements, which First Offer in accordance with shall set forth the provisions herein.
terms and conditions whereby WM is willing to provide the Feedstock Waste […***…]. If WM delivers to the Supplied Party the First Offer within the First Offer Period, the Supplied Party may either accept or reject the First Offer within the 15-day period following the Supplied Party’s receipt of the First Offer (ii) the “First Offer Acceptance Period”). If Buyer the Supplied Party accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety proceed with the execution and delivery of a supply agreement in accordance with Section 5. ***Confidential Treatment Requested
(90b) days If (i) WM fails to make a First Offer during the First Offer Period, (ii) the Supplied Party rejects the First Offer or (iii) the First Offer Acceptance Period expires without the Supplied Party’s acceptance of the First Offer, then the First Offer and all rights under Section 3.1(a) shall expire and the Supplied Party shall be entitled to solicit offers from the date of Buyer’s Notice to third parties, negotiate with third parties and enter into a new power purchase agreementagreements with third parties for the supply of the Feedstock Waste to satisfy the Feedstock Requirements, in substantially the same form accordance with Section 3.2, as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failureapplicable.
(iiic) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered WM indicates in the First Offer that it is only able to Buyer. If Seller is unable to deliver such a certificate to Buyerpartially fulfill the Feedstock Requirements, then Seller may not sell or otherwise transfer, or enter into an agreement the Supplied Party shall be entitled to sell or otherwise transfer, the Products solicit offers from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms third parties and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, negotiate and to enter into agreements or commitments with third parties for the supply of any Feedstock Waste it requires in excess of the Feedstock Waste supplied by WM in order to sell or otherwise transfer, satisfy such Products from the Project to any third party on such terms and conditions as set forth in the certificateexcess Feedstock Requirements.]
Appears in 1 contract
Samples: Supply Rights Agreement
Right of First Offer. The Seller agrees not to offer, sell or accept an unsolicited offer (ian "Offer") If Seller resizes for the Project due sale (the "Sale") of all or any portion of its rights in and to Permit Failurethe Licensed Xxxx or the Patent, then including, but not limited to, any trademark, tradename, copyright, service xxxx or other intellectual property right relating thereto (the "XXXX Rights") for a period purchase price of three (3) years from less than $5,000,000 in cash without first giving AHI and the date on which Seller Notifies Buyer Purchaser written notice of the Contract Capacity Commitment Offer (“Exclusivity Period”)the "Offer Notice") containing the purchase price and, neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheetextent known, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the other material terms and conditions of such proposed Sale (the "Terms"). Upon delivery of the Offer Notice to AHI and the Purchaser, the XXXX Rights shall be deemed to have been offered for sale or transfer are not more favorable to AHI and the Purchaser subject to the third party than those Terms. AHI and the Purchaser shall then have the right, exercisable by giving written notice thereof to the Seller within ten (10) business days following delivery of the First Offer Notice to Buyer. Ifgive notice to the Seller of AHI's and/or the Purchaser's intent to purchase the XXXX Rights, during and AHI and the Exclusivity Period, Seller desires to enter into an obligation or agreement with Purchaser shall thereafter have a third party, Seller shall deliver to Buyer a certificate period of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) business days following delivery of receipt their notice to Seller within such ten (10) day period, to negotiate with the Seller to purchase the XXXX Rights proposed to be sold subject to the Terms. If AHI or the Purchaser shall exercise its right of Seller’s Revised Offer first offer with respect to the Buyer rejects, or fails XXXX Rights proposed to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfersold, such Products from purchase shall be closed within such thirty (30) business day period as hereinabove described. Failure by AHI or the Project Purchaser to any third respond to an Offer Notice within the time periods set forth above shall be deemed an election by AHI and the Purchaser not to exercise its right of first offer herein contained, in which case the Sale may be consummated with a third-party on purchaser provided such Sale is (i) of all of the XXXX Rights proposed to be sold at a purchase price or equivalent economic terms and conditions as equal to or greater than that set forth in the certificate.]Offer Notice and (ii) consummated within sixty (60) days after the delivery of the Offer Notice. The term "
Appears in 1 contract
Samples: Asset Purchase Agreement (Mace Security International Inc)
Right of First Offer. After the Closing, if during the Standstill Period any one or more Xxxx Covered Person proposes to sell a block of 100,000 or more shares of Common Stock in the aggregate (such sale, the “Proposed Sale”, and such shares, the “Offered Shares”), such Xxxx Covered Persons shall first offer such Offered Shares to the Company. The Xxxx Covered Persons shall notify the Company of the Proposed Sale by delivering a notice (the “Offer Notice”) to the Company, stating (i) If Seller resizes their bona fide intention to offer such Offered Shares, (ii) the Project due number of such Offered Shares to Permit Failurebe offered, then for a period of three and (3iii) years from the date on price and material terms, if any, upon which Seller Notifies Buyer of they propose to offer such Offered Shares. By notification to the Contract Capacity Commitment Xxxx Covered Persons within two full business days after the Offer Notice is given (the “Exclusivity Offer Period”), neither Sellerthe Company may, its successors and assignsbut is not obligated to, nor its Affiliates shall enter into an obligation or agreement elect to sell purchase or otherwise transfer acquire the Offered Shares, at the price and on the terms specified in the Offer Notice; and if the Company elects to make such purchase, the purchase and sale shall be consummated by the Company and such offering party or parties within two full business days following such election. If the Company does not elect to purchase any Products from the Project in excess or all of the Contract Capacity Commitment, up Offered Shares referred to the Contract Capacity set forth in the Cover SheetOffer Notice, the Xxxx Covered Persons may, during the 30 full day period immediately following the expiration of the Offer Period, offer and sell the remaining unpurchased portion of such Offered Shares to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts person or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”)persons at a price not less than, and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material upon terms and conditions of such sale or transfer are not no more favorable to the third party than offeree than, those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered specified in the First Offer to BuyerNotice. If Seller is unable to deliver such a certificate to Buyer, then Seller may the Xxxx Covered Persons do not sell or otherwise transfer, or enter into an agreement for the sale of the Offered Securities to sell or otherwise transfera third party within such 30 full day period, the Products from right provided hereunder shall be deemed to be revived and such Offered Securities shall not be offered unless first reoffered to the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) Company in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatethis Section 6(b).]
Appears in 1 contract
Samples: Stock Purchase and Cooperation Agreement (Griffon Corp)
Right of First Offer. The Parties acknowledge that Immtech is currently pursuing new indications for pafuramidine for the treatment and prophylaxis of malaria. If, following the Effective Date, Immtech determines that pafuramidine can be used for the treatment and/or prophylaxis of malaria, Immtech shall, prior to instituting any Phase III development program in respect thereof, provide Par with a one time written notice of information reasonably available to Immtech, including an estimate of the cost for developing and obtaining regulatory approval therefor, that is reasonably required by Par to determine whether or not to enter into an agreement with Immtech with respect to such additional indication. The delivery of such notice shall automatically grant to Par a one time exclusive option (the “Option”) to enter into an agreement with Immtech for a license to permit Par and its Affiliates to market, sell and have sold pafuramidine for such additional indication (the “New License Agreement”). Par shall have twenty-five (25) days from receipt of such notice to (i) exercise the Option by sending written notice to Immtech of its intent thereof or (ii) reject the Option, in either case at which time the following shall occur:
(i) If Seller resizes Par exercises the Project due to Permit FailureOption, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those exercise of the First Offer Option to Buyernegotiate in good faith a New Licensing Agreement with Immtech. If, during following such ninety (90)-day period, the Exclusivity Periodparties have not executed the New Licensing Agreement, Seller desires Immtech may, but shall not be obligated to, offer such license for pafuramidine to enter into an obligation or agreement a Third Party; provided, however, that a New Licensing Agreement with a third party, Seller any Third Party shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of not provide such agreement and (B) certifying that the proposed agreement Third Party with the third party will not provide Seller with a lower rate of return than that offered right to market, sell and have sold the Product in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart Territory; and
(ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer Par rejects the Buyer rejectsOption, or fails does not inform Immtech of its intent to accept by Notice exercise the Option within the twenty-five (25)-day period, Immtech may, but shall not be **** Material omitted pursuant to Sellera request for confidential treatment under Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the Securities and Exchange Commission. obligated to, offer such the Revised OfferNew License Agreement to a Third Party; provided, then Seller will thereafter be free however, that a New Licensing Agreement with any Third Party shall not provide such Third Party with the right to market, sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from have sold the Project to any third party on such terms and conditions as set forth Product in the certificateTerritory.]
Appears in 1 contract
Samples: Licensing Agreement (Immtech Pharmaceuticals, Inc.)
Right of First Offer. (i) If Seller resizes 29.1. During the Project due to Permit Failuresubsistence of this Agreement, then for a period of three (3) years from the date on which Seller Notifies Buyer none of the Contract Capacity Commitment Parties shall pledge, hypothecate, mortgage, charge or otherwise encumber, sell, assign, or in any other manner dispose of or attempt to dispose of all or any part of its Interest except as provided in Sections 12 or 17 and as hereinafter provided in this Section 29. A Party wishing to sell or dispose of all or a portion of its Interest (“Exclusivity Period”)in this Section 29 called the "Disposing Party") may, neither Sellerupon notice to all the Participants:
(a) sell, as contemplated in Subsection 29.2, all or any portion thereof to the Participants who elect to purchase the same (if more than one then in proportion to their respective Interests) or, if the Participants elect not to purchase, to a third Party; or
(b) sell to an Affiliate of the Disposing Party; provided, however, the Disposing Party shall remain liable for the obligations of the Affiliate and that the sale to the Affiliate be subject to the Affiliate entering into an agreement with the remaining Participants whereby it agrees to be bound by the provisions of this Agreement. Upon an Affiliate ceasing to be an Affiliate of the Disposing Party, the Affiliate shall transfer its successors Interest to the Disposing Party or to another Affiliate of the Disposing Party and assignsthe transferee shall AGNICO-EAGLE MINES LIMITED / AMERICAN BONANZA GOLD CORP. FRASER XXXXXX CASGRAIN LLP Option Agreement – Xxxxx / Noyon-Xxxxxxxx Properties November 15, nor its Affiliates shall 2007 enter into an obligation or agreement with the remaining Participants whereby it agrees to be bound by the provisions of this Agreement.
29.2. A Disposing Party will, prior to disposing of the Interest other than to an Affiliate, first offer to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up Interest to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer Participants for a cash consideration but upon such Products from the Project on the same other terms and conditions as this Agreementthe Disposing Party deems fit. If, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) 45 days of receipt the Disposing Party's offer to sell, the Participants elect not to purchase the Interest upon those terms and conditions, the Disposing Party will be free to dispose of that Interest to a third Party at any time within six months of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into Participants' election but only for a new power purchase agreement, in substantially the same form as this Agreementcash consideration, or amend this Agreementfor some consideration other than cash, subject to CPUC Approval, if necessary; provided that the Contract Price may only fair cash equivalent of any non-cash consideration be increased equal to reflect Seller’s documented incremental costs or greater than the cash consideration stated in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free Disposing Party's offer to sell or otherwise transferto the Participants, and to enter into agreements to sell upon the same or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not no more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such favourable terms and conditions as set forth the offer to sell to the Participants; provided, however, that the sale of the Interest to the third Party shall be subject to the third Party entering into an agreement with the Participants whereby it agrees to be bound by the provisions of this Agreement. Any Interest not disposed of by the Disposing Party as aforesaid will remain subject to the provisions of this subsection.
29.3. Upon the Participants or a third Party acquiring all or a portion of the Disposing Party's Interest, the Participants or the third Party will be deemed to have acquired a corresponding portion of the Disposing Party's Exploration Costs and Mine Costs. Subject to the execution of the agreement contemplated in Subsection 29.2, the third Party will be entitled to all the rights and benefits accruing, and be subject to the obligations attributable, to the Interest which it has purchased from the Disposing Party, including the right to participate in any further Exploration Costs and Mine Costs and the right to have its Interest increased or reduced in the certificatesame manner as the Disposing Party in the event the third Party does not participate in Exploration Costs and Mine Costs.]
Appears in 1 contract
Right of First Offer. (i1) If Seller resizes the Project due to Permit FailureOwners or Parent, then for a period or any of three (3) years their respective Affiliates, proposes, within one year from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writingEffective Date, to sell to Buyer such Products from any person a new or existing royalty, a participating interest based on production, a stream or enter into any other similar transaction involving the Project on Mineral Property (the same “Offered Interest”), the Owners or Parent shall first offer the Offered Interest to Holder, by promptly sending written notice (an “Offer Notice”) to Holder setting forth the terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, of the proposed transaction (the “First OfferTransaction”) and Buyer either accepts or rejects such First Offer to be entered into in accordance with respect of the provisions hereinOffered Interest.
(ii2) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt Upon delivery of the First Offer subject to Buyer’s management approval Notice, such offer shall be irrevocable unless and CPUC Approval (“Buyer’s Notice until the right of First Offer Acceptance”), and then the Parties first offer provided for herein shall have not more than ninety (90) been waived or shall have expired. For a period of 30 days from the date of Buyerreceipt of the Offer Notice (the “ROFO Period”), Holder shall have the right, but not the obligation, to purchase the Offered Interest at a purchase price and on the terms and conditions set forth in the Offer Notice (the “ROFO”). The ROFO shall be exercisable by delivering written notice to Owner prior to the expiration of the ROFO Period. Failure by Holder to respond within the ROFO Period shall be deemed to be a waiver of Holder’s Notice option to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failureacquire such interest.
(iii3) If Xxxxx rejects Upon waiver of the ROFO or fails to accept Seller’s First Offer within thirty (30) days expiry of receipt of such offerthe ROFO Period, Seller the Owners or Parent shall thereafter be free have the right to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material Offered Interest on terms and conditions of such sale or transfer are not more favorable to the third party less favourable than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateOffer Notice.]
(4) The closing of the Transaction with either (i) Holder pursuant to its exercise of the ROFO, or (ii) a Third Party on terms and conditions no less favourable to the Owners or Parent than as set out in the Offer Notice, shall be held on or before the 120th day (or such later day as is necessary to obtain requisite consents and approvals) after the receipt of the Offer Notice. If the closing of the Transaction with a Third Party is not completed within such 120 day period, the Owners or Parent must again comply with the provisions of this section with respect to the sale of the Offered Interest.
Appears in 1 contract
Right of First Offer. (i) If Seller resizes Neither Respondent nor Respondent’s affiliates may sell, market or deliver any Product associated with or attributable to the Project due to Permit Failure, then a party other than SDCP for a period of three one (31) years from year following the date on which Seller Notifies Buyer of SDCP receives the Contract Capacity Commitment Offer (“Exclusivity ROFO Term”), unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than SDCP, Respondent or Respondent’s affiliates provide SDCP with a written offer to sell the Product on terms and conditions materially similar to the Initial Proposal or Offer, not including contract price (a “ROFO Offer”). In addition, if economic conditions change such that Respondent may offer a lower contract price than contained in the Offer, Respondent shall first provide an updated offer to SDCP. SDCP shall have thirty (30) calendar days to consider and respond to such ROFO Offer (the “ROFO Exercise Period”). If SDCP provides notice to Respondent accepting the ROFO Offer within the ROFO Exercise Period, then the Parties shall negotiate in good faith to enter into an ESSA/PPA within one hundred twenty (120) calendar days after Respondent’s receipt of SDCP’s notice of acceptance (the “Negotiation Period”), neither Seller, its successors for purchase and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess sale of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer Product in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt terms of the First ROFO Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First as set forth above in this paragraph). If SDCP does not provide notice accepting the ROFO Offer Acceptance”)within the ROFO Term, and then or if the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice fail to enter into a new power purchase agreementan ESSA/PPA within the Negotiation Period, in substantially Respondent shall have the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and right to enter into agreements any agreement to sell or otherwise transfer, any Products from the Project such Product to any third partyparties, so long as the prices under such agreement are equal to or greater than the respective prices under the ROFO Offer. Respondent understands and agrees that any breach by Respondent of this Section III constitutes a material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyerbreach under this Agreement. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to indemnify and hold Buyer harmless from all benefits lost and other damages sustained by Xxxxx as a certificate result of an authorized officer any breach by Seller of Seller (A) summarizing its covenants contained within this Section III. This Section III shall survive the material terms and conditions termination of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatethis Agreement.]
Appears in 1 contract
Samples: Exclusivity Agreement
Right of First Offer. The Purchaser covenants and agrees that:
(iA) If the Purchaser desires to Transfer any or all of its Shares, the Purchaser shall first give written notice to the Seller resizes (the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”First Offer Notice ), neither Sellerwhich First Offer Notice shall identify the Shares proposed to be Transferred (the Offered Shares ), its successors indicate if such Offered Shares are being Transferred by the Agent or the Lenders and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up be effective when delivered to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinof Section 7.1.
(iiB) If Buyer accepts During the First Offertwenty-six hours (considering only those hours of a Business Day), Buyer shall Notify Seller within thirty (30) days of receipt immediately following the effective delivery of the First Offer subject to Buyer’s management approval and CPUC Approval Notice (“Buyer’s Notice of First Offer Acceptance”the Option Expiration Time ), and then the Parties Seller (and/or such Affiliates of the Seller as it may designate in writing to the Purchaser) shall have the right, but not more than ninety the obligation, to elect to purchase all of the Offered Shares at a purchase price (90the Option Price ) days from equal to the product of (i) the Market Price as of the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those effective delivery of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement Notice and (Bii) certifying the number of Offered Shares, by delivery by the Seller of written notice, prior to the Option Expiration Time, to the Purchaser; provided, however, that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in if the First Offer Notice indicates that the Offered Shares are being Transferred by the Agent or the Lenders then, unless such notice delivered by the Seller (and/or any such Affiliate) contains the binding obligation of the Seller to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transferconsummate the purchase of the Offered Shares no later than the third Business Day following the date on which the Option Expiration Time occurs, the Products from Seller shall be deemed to have waived its right to purchase the Project Offered Shares and; provided, further, however, that any First Offer Notice may be withdrawn by the Purchaser prior to its receipt of such written notice by the Seller and the provisions of this Section 5.1 shall again become effective and no Transfer of such Offered Shares subject to this Section 5.1 may be made thereafter by the Purchaser without first again offering the same to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) Seller in accordance with subpart Section 5.1(A). The failure of the Seller to respond prior to the Option Expiration Time shall be deemed to be a waiver of its right to purchase the Offered Shares; provided, that the First Offer Notice was delivered in accordance with Section 5.1(A).
(C) If the Seller has not elected, or is deemed to have waived its right, to purchase all of the Offered Shares prior to the Option Expiration Time, the Purchaser shall have the right to Transfer such Offered Shares to any buyer in a bona fide transaction consummated within 90 Business Days following the date on which the Option Expiration Time occurs. If such proposed Transfer of the Offered Shares to a buyer is not consummated within such 90-Business Day period, then the restrictions provided for in this Section 5.1 shall again become effective, and no Transfer of such Offered Shares subject to this Section 5.1 may be made thereafter by the Purchaser without again offering the same to the Seller in accordance with Section 5.1(A) provided, however, that no such reoffer shall be required if such Offered Shares are being sold in a controlled selling program described by the Purchaser in the applicable First Offer Notice, which description shall contain the number of Offered Shares to be so sold and the anticipated timing of such sales, and the Offered Shares remaining unsold after such 90-Business Day period constitute less than 5% of the Shares.
(D) If the Seller (and/or any Affiliate designated by the Seller pursuant to Section 5.1(B)) shall exercise its option pursuant to Section 5.1(B), the Transfer of the Offered Shares to the Seller (and/or any such Affiliate) resulting from the exercise of such option shall take place no later than the third Business Day following the later of (i) the date on which the Option Expiration Time occurs and (ii) the receipt by the Seller of all required consents and approvals, which the Seller (and/or any such Affiliate) shall use its commercially reasonable best efforts to obtain in a timely manner and which shall in no event occur no later than on the sixtieth day following the date on which the First Offer Notice was given; provided, however, that if the notice delivered by Seller in accordance with Section 5.1(B) contains the binding obligation of the Seller to consummate the purchase of the Offered Shares no later than the third Business Day following the date on which the Option Expiration occurs, such purchase shall take place within the period described in clause (i) above. If within thirty the closing of any Transfer of Offered Shares occurs after the third Business Day following the date on which the Option Expiration Time occurs (30) days of receipt of Seller’s Revised Offer the Buyer rejectsInterest Accrual Date ), or fails interest will accrue on the Option Price at the 3-month U.S. Treasury rate during the period commencing on the Interest Accrual Date and ending on the date on which such closing occurs. On such closing date, the Purchaser shall execute and deliver instruments, in form and substance reasonably satisfactory to accept by Notice to the Seller, assigning all of its right, title and interest in the Revised OfferOffered Shares to the Seller (and/or any such Affiliate), then against payment therefor, free and clear of all Encumbrances, other than restrictions imposed pursuant to this Agreement, the Relationship Agreement and applicable Federal and state securities laws. If the Seller will thereafter be free shall designate an Affiliate to sell or otherwise transfer, and to enter into agreements to sell or otherwise transferpurchase the Offered Shares as contemplated by this Section 5.1, such Products from designation shall not relieve the Project to any third party on such terms and conditions as set forth in the certificate.]Seller of its obligations under this Section 5.1
Appears in 1 contract
Right of First Offer. Seller hereby covenants and agrees that for so long as Seller or any entity affiliated with or under common control with Seller (itogether, the “Seller Parties”) If Seller resizes owns the Project due to Permit Failureproperty known as 0000 Xxxxxx Xxxxx, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment Xxxxxxxxxx, Xxxxx Xxxxxxxx, more specifically described in Exhibit D (“Exclusivity Period7902 Property”), neither SellerPurchaser shall have a “Right of First Offer” to purchase the 7902 Property. In this regard, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement prior to sell or otherwise the transfer any Products from the Project in excess of the Contract Capacity Commitment, up 7902 Property or any portion thereof to any third party (or offering the Contract Capacity set forth in the Cover Sheet, 7902 Property or any portion thereof for sale or transfer to any third party), unless Seller shall first offers, in writing, provide written notice (the “Offer Notice”) to sell Purchaser that a Seller Party intends to Buyer such Products offer the 7902 Property for transfer or sale. Purchaser shall have fifteen (15) days from receipt of the Project on the same terms and conditions as this Agreement, subject Offer Notice to permitted modifications identified in subpart (ii) below, deliver a written offer (the “First Offer”) and Buyer either accepts to Seller or rejects such the applicable Seller Party to purchase the 7902 Property, which First Offer in accordance with shall include: (i) the provisions herein.
price; (ii) If Buyer accepts other material economic terms and conditions; and (iii) a copy of the First Offerproposed purchase agreement, Buyer which shall Notify be substantially in the form of this Agreement. Seller within thirty shall have fifteen (3015) days of from receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of accept or reject the First Offer Acceptance”(or to cause the applicable Seller Party to do so). If Seller or the applicable Seller Party rejects the First Offer, and then Seller may sell the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice Property to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessaryany third party; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs purchase price is not less than ninety percent (90%) of the price set forth in overcoming the Permit Failure.
(iii) First Offer. If Xxxxx rejects or fails a Seller Party intends to accept Seller’s First Offer within thirty an offer which has a purchase price that is less than ninety percent (3090%) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with (a third party“Third Party Offer”), Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions notice of such agreement Third Party Offer to Purchaser and Purchaser shall have ten (B10) certifying that the proposed agreement with the third party will not business days to provide Seller with a lower rate notice that Purchaser will purchase the 7902 Property on the terms of return than that offered in the First Offer. If Purchaser does not wish to purchase the 7902 Property pursuant to the terms of the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]ten
Appears in 1 contract
Right of First Offer. Except as otherwise provided in Section 2 or in any Employment Agreement with the Corporation (ior any of its Affiliates) If Seller resizes to which such Investor is a party, each Investor and each member of the Project due Group of each Investor (other than any Investor who was a party to Permit Failurethe Stockholders' Agreement dated as of March 31, then 1993 among CFP Holdings, Inc. and the other signatories thereto) hereby agrees that he or it shall not Transfer any Stock prior to the third anniversary of the date hereof and thereafter shall only Transfer Stock in accordance with the following procedures:
(a) The Selling Group shall first deliver to the Corporation and each AEP Stockholder a written notice (the "Section 3 Offer Notice"), which shall be irrevocable for a period of three 45 days after delivery thereof (3the "Section 3 Offer Period"), offering (the "Section 3 Offer") years from the date on which Seller Notifies Buyer all of the Contract Capacity Commitment Stock proposed to be Transferred by the Selling Group at the purchase price and on the terms specified therein (“Exclusivity Period”), neither Seller, its successors such Notice of Offer shall include the foregoing information and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess all other relevant terms of the Contract Capacity Commitmentproposed Transfer). The Corporation (or its designee) shall have the right and option, up for a period of 15 days after delivery of the Section 3 Offer Notice, to accept all or any part (subject to Section 3(f)) of the Stock so offered at the purchase price and on the terms stated in the Section 3 Offer Notice. Such acceptance shall be made by delivering a written notice to the Contract Capacity set forth in Selling Group and the Cover SheetAEP Stockholders within said 15-day period.
(b) If the Corporation (or its designee) shall fail to accept all of the Stock offered for sale pursuant to, to any third party, unless Seller first offers, or shall reject in writing, the Section 3 Offer (the Corporation being required to sell notify in writing the Selling Group and the AEP Stockholders of its rejection or failure to Buyer accept all of the Stock in such Products from event), then, upon the Project earlier of the expiration of such 15-day period or the receipt of such written notice of rejection or failure to accept such offer by the Corporation, each AEP Stockholder shall have the right and option, until the expiration of the Section 3 Offer Period, (i) to accept all or any part of its Proportionate Percentage of the Stock (subject to Section 3(f)) so offered and not accepted by the Corporation (the "Refused Stock") at the purchase price and on the same terms stated in the Section 3 Offer Notice and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) belowto offer, in any written notice of acceptance, to purchase any of such Refused Stock not accepted by the other AEP Stockholders, in which case such Refused Stock not accepted by the other AEP Stockholders shall be deemed to have been offered to and accepted by the AEP Stockholders which exercised their option under this clause (the “First Offer”ii) and Buyer either accepts or rejects such First Offer pro rata in accordance with their respective Proportionate Percentages (computed without including the provisions hereinAEP Stockholders who have not exercised their option to purchase Stock under clause (ii) of this subparagraph (b)), on the above-described terms and conditions. Such acceptance shall be made by delivering a written notice to the Corporation and the Selling Group prior to the expiration of the Section 3 Offer Period.
(iic) If Buyer accepts A notice of acceptance delivered by either the First Offer, Buyer Corporation or an AEP Stockholder pursuant to Section 3(a) or Section 3(b) shall Notify Seller within thirty (30) days of receipt of be a binding commitment to purchase the First Offer subject Stock referred to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failuretherein.
(iiid) Transfers of Stock under the terms of Sections 3(a) and 3(b) shall be made at the offices of the Corporation on a mutually satisfactory business day within 30 days after the expiration of the Section 3 Offer Period. Delivery of certificates or other instruments evidencing such Stock duly endorsed for transfer shall be made on such date against payment of the purchase price therefor.
(e) If Xxxxx rejects effective acceptance shall not be received pursuant to Sections 3(a) and 3(b) with respect to all Stock offered for Transfer pursuant to the Section 3 Offer Notice, then the Selling Group may Transfer all or fails to accept Seller’s First Offer within thirty (30) days any part of receipt of such offer, Seller shall thereafter be free to sell or otherwise transferthe Stock so offered and not so accepted at a price not less than the price, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material on terms and conditions of such sale or transfer are not more favorable to the third party purchaser thereof than those the terms, stated in the Section 3 Offer Notice at any time within 60 days after the expiration of the First Section 3 Offer Period to Buyeran Institutional Investor or to any other purchaser approved by a Majority in Interest of the AEP Stockholders, such approval not to be unreasonably withheld, conditioned or delayed. If, during In the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying event that the proposed agreement with Stock is not Transferred by the third party will not provide Seller with a lower rate Selling Group during such 60-day period, the right of return than that offered the Selling Group to Transfer such Stock shall expire and the obligations of this Section 3 shall be reinstated.
(f) The Selling Group may specify in the First Section 3 Offer Notice that all or a minimum amount of Stock mentioned therein must be Transferred, in which case any acceptance received pursuant to Buyer. If Seller is unable Sections 3(a) and 3(b) shall be deemed conditioned upon (i) receipt of written notices of binding acceptance with respect to deliver all or such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer stated amount of Stock mentioned in such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart Section 3 Offer Notice and/or (ii) above. If within thirty the Transfer of the remaining Stock, if any, pursuant to Section 3(e).
(30g) days Anything contained herein to the contrary notwithstanding, any purchaser of receipt Stock pursuant to Section 3 who is not a Stockholder shall agree in writing in advance with the parties hereto to be bound by and comply with all applicable provisions of Seller’s Revised Offer the Buyer rejects, or fails this Agreement and shall be deemed to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatean Investor for all purposes of this Agreement.]
Appears in 1 contract
Right of First Offer. Seller, prior to the second anniversary of -------------------- the Closing Date, shall not (ia) initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, or (b) participate in any discussions or negotiations with, or disclose any information concerning its operations to, or otherwise assist, facilitate or encourage any person (other than Purchaser) in connection with any possible proposal with respect to the management of the provision of health care services to its subscribers and other provider and ancillary operations (collectively, a "Provider Operations ------------------- Transaction") similar to the Provider Operations Transaction contemplated by the ----------- Asset Purchase Agreement and the Related Agreements, unless it first notifies Purchaser on a confidential basis of the terms of such a transaction which would be acceptable to it, provides Purchaser (subject to an appropriate confidential agreement) with a descriptive memorandum or similar evaluation materials, if any, prepared by or for it in connection with the contemplated transaction, and offers Purchaser the opportunity to enter into negotiations with Seller regarding terms under which Purchaser would enter into a Provider Operations Transaction with Seller, provided that Seller may have such discussions with, and disclose such information to, its accountants, its counsel and its financial and other advisers. If Purchaser does not notify Seller resizes with the Project due period (the "Thirty-Day Period") of 30 days after its receipt of Seller's notice that it ------------------ wishes to Permit Failureenter into negotiations with Seller for a Provider Operations Transaction on the terms described in Seller's notice or on different terms proposed by Purchaser that are no less favorable to Seller than those described in Seller's notice, then Seller shall have the right to enter into an agreement or agreements with one or more third parties for a Provider Operations Transaction. If Purchaser notifies Seller within the Thirty-Day Period that it wishes to enter into negotiations with Seller for a Provider Operations Transaction on terms no less favorable to Seller than those described in Seller's notice, then for a period of three (3) years from beginning on the date of Purchaser's notice and ending on which the date 120 days after the date Seller's notice is received (the "First Offer Period") the parties shall negotiate in good faith with respect to ------------------ a Provider Operations Transaction; but if Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall Purchaser do not enter into an obligation agreement or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up agreements for a Provider Operations Transaction prior to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt expiration of the First Offer subject Period, then Seller shall have the right to Buyer’s management approval and CPUC Approval do so with one or more third parties. If Seller does not do so (“Buyer’s Notice a) within 180 days after the expiration of the Thirty-Day Period in the event that Purchaser does not notify Seller within such period that it wishes to enter into negotiations as contemplated in the second preceding sentence, or (b) within 180 days after the expiration of the First Offer Acceptance”)Period in the event that Purchaser does so notify Seller within the Thirty-Day Period, but Seller and Purchaser do not enter into an agreement or agreements for a Provider Operations Transaction within the First Offer Period, then the Parties preceding provisions of this Section 8 shall have not more than ninety (90) days from the date of Buyer’s Notice again become effective. Seller's right to enter into a new power purchase agreementProvider Operations Transaction under either the second or the third preceding sentence shall be subject to the economic terms of such transaction being, in substantially Seller's reasonable, good faith judgment, no less favorable to Seller than those discussed with Purchaser. Notwithstanding the same form as foregoing, if, on or prior to the expiration of the Put, the Surplus Notes are paid in full, and, immediately following such payment, HIP-NJ's unrestricted fund balance meets all applicable regulatory requirements, the reference to "second anniversary of the Closing Date" in the first sentence of this AgreementSection 8, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only shall automatically be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable changed to the third party than those anniversary of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateClosing Date.]
Appears in 1 contract
Right of First Offer. For a period commencing on the Closing Date and terminating on the second anniversary of the Closing Date, the Company (ior, if the Company no longer exists at such time, the Shareholder Representative) If Seller resizes shall have a right of first offer with respect to the Project due sale of all or substantially all of the GPI Business Unit and the assets and properties owned by Exult in connection therewith (collectively, the "GPI BUSINESS"). Accordingly, before Exult may enter into negotiations with any third party to Permit Failuresell the GPI Business, then Exult shall give written notice of its intent to sell the GPI Business to the Company or the Shareholder Representative, as the case may be, whereupon the Company or the Shareholder Representative, as the case may be, shall have the option to enter into exclusive negotiations with Exult for a 30-day period to purchase the GPI Business for cash. Such option must be exercised, if at all, by the Company or the Shareholder Representative, as the case may be, within ten business days after the delivery of such notice by the delivery to Exult by the Company or the Shareholder Representative, as the case may be, of written notice of its intent to exercise such option. Such notice shall include a statement by the Company or the Shareholder Representative, as the case may be, of its estimate of the fair market value of the GPI Business. Upon the receipt by Exult of such notice, the parties shall enter into good faith negotiations for a period of three (3) years from at least 30 days to determine the date on which Seller Notifies Buyer purchase price and other principal terms relating to the proposed sale of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors GPI Business. If the parties do not agree upon a purchase price and assigns, nor its Affiliates shall enter into an obligation or agreement the other principal terms with respect to sell or otherwise transfer any Products from the Project in excess proposed sale of the Contract Capacity CommitmentGPI Business within such 30-day period, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer Exult shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell consummate the sale of the GPI Business with any third party on financial terms no less favorable than those offered by the Company or otherwise transferthe Shareholder Representative as the case may be. In the event Exult shall not have consummated the sale of the GPI Business within one year after the termination of such 30-day period, and to Exult shall not enter into agreements negotiations with any third party to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project GPI Business without first offering to sell the Company or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer Shareholder Representative, as the Buyer rejects, or fails to accept by Notice to Sellercase may be, the Revised Offer, then Seller will thereafter be free opportunity to sell or otherwise transfer, and negotiate to enter into agreements to sell or otherwise transfer, such Products from acquire the Project to any third party on such terms and conditions as GPI Business in the manner set forth in the certificateabove.]
Appears in 1 contract
Samples: Asset Purchase Agreement (Exult Inc)
Right of First Offer. (i) If Seller resizes Except for Permitted Transfers, in the Project due event that a Deerfield Purchaser desires to Permit Failuredirectly or indirectly Transfer any of its Securities, then it shall first send a notice of such proposed Transfer to the WP Purchasers, together with a detailed description of the terms and conditions of such Deerfield Purchaser’s proposed offer of such Securities, including the purchase price for such Securities (a “ROFO Offer”), prior to engaging in any discussions with any third party with regard to a Transfer of such Securities or effecting any such Transfer. For a period of fifteen (15) days (the “ROFO Negotiation Period”) from receipt of a ROFO Offer, such Deerfield Purchaser and the WP Purchasers shall have a right to discuss in good faith the terms and conditions of an agreement regarding the proposed Transfer of the Securities to the WP Purchaser Group. During the ROFO Negotiation Period, the Deerfield Purchasers shall refrain from engaging in any discussions with any third party (other than the WP Purchasers) regarding a Transfer of such Securities to such third party. If at the expiration of the ROFO Negotiation Period such Deerfield Purchaser and the WP Purchasers shall have not reached agreement with regard to the terms and conditions of such Transfer, then such Deerfield Purchaser shall be free for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from after the date expiration of Buyer’s Notice the ROFO Negotiation Period to enter into Transfer such Securities to a new power purchase agreement, in substantially third party transferee for the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfergreater purchase price, and to enter into agreements to sell or otherwise transfer, on terms no more beneficial in any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable respect to the third party than those of the First Offer to Buyer. Iftransferee than, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateROFO Offer.]
Appears in 1 contract
Right of First Offer. (a) If Midwest desires to dispose of all -------------------- or part of the Subordinated Note (the "Offered Note"), other than to partners or Affiliates of Midwest or any other Person managed by the same individuals that manage Midwest or indirectly through participations, pursuant to the terms of a written offer received from a bona fide third party, Midwest will promptly upon receipt of such third-party offer give written notice (the "Offer Notice") to the Company (x) stating the terms of the third-party offer, including (i) If Seller resizes the Project due purchase price, (ii) the other terms and conditions of payment, and (iii) such other material terms upon which Midwest has agreed to Permit Failuredispose of the Offered Note, including the name(s) of the proposed purchaser(s,) if then for a period known, and (y) making an offer to sell the Offered Note (the "Offer") to the Company pursuant to this Section at the price and on the other terms described in the Offer Notice.
1 The Company shall have the right irrevocably to elect to purchase the Offered Note by giving written notice thereof ("Acceptance Notice") to Midwest within 30 days of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up Offer Notice was given to the Contract Capacity Company ("Acceptance Date"). In the event that the Offer has been accepted in its entirety by the timely delivery of an Acceptance Notice, Midwest shall sell the Offered Note to the Company and the Company shall be required to purchase the Offered Note on the terms and conditions set forth in the Cover Sheet, Offer Notice. In the event that the Company (i) does not deliver the Acceptance Notice to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from Midwest by the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart Acceptance Date or (ii) below, (otherwise rejects the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30Midwest may sell the Offered Note to a purchaser(s) days of receipt of on the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not no more favorable to the third party such purchaser(s) than those stated in the Offer Notice; provided, however, that if such sale does not occur within a period ending 180 days after the Acceptance Date, then the Subordinated Note shall again be subject to this Section 8.9. Any subsequent sale of the First Offer Subordinated Note by the new holder thereof shall also be subject to Buyerthis Section 8.9. If, during For purposes of this Section 8.9 the Exclusivity Period, Seller desires to enter into an obligation or agreement with "Company" shall also include a third party, Seller shall deliver to Buyer a certificate purchaser of an authorized officer substantially all of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateCompany's assets.]
Appears in 1 contract
Samples: Note Assumption Agreement (Audio Communications Network Inc)
Right of First Offer. Except as set forth in Section 2(g) hereof, neither Shareholder shall effect a Sale unless, at least 30 days prior to the date of such Sale:
i. The Shareholder wishing to effect a sale (ithe "Offeror") If Seller resizes shall have given to the Project due other Shareholder (the "Offeree") a notice of the Offeror's intention to Permit Failureeffect such Sale (a "Sale Notice"). The Sale Notice shall include (x) the number of Common Shares that the Offeror desires to include in the Sale and (y) an invitation (the "Invitation") to the Offeree to make an offer to purchase such Common Shares. Alternatively, if the proposed transferee and material terms of such proposed Sale are then for a period known by the Offeror, the Sale Notice shall include (1) the identity of three such transferee, (2) such material terms and such other information with respect to the Sale that the Offeree may reasonably request and (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, Offer to sell to Buyer such Products from the Project Offeree, on the same terms and conditions as this Agreementsubstantially identical to those contained in the Sale Notice, subject to permitted modifications identified the number of shares specified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinSale Notice.
(ii) If Buyer accepts the First Offer. If, Buyer shall Notify Seller within thirty (30) 20 days of receipt of the First Offer Sale Notice which includes an Invitation, the Offeree makes an offer to purchase such Common Shares for cash, the Offeror shall, by written notice to Offeree, accept or reject such offer. If the Offeror rejects such offer, for a period of 120 days following such rejection, the Offeror may only sell such Common Shares to any third party at a price per share at least five percent (5%) greater than the price per share offered by the Offeree. If the Offeror accepts the offer, the Offeree shall purchase the Common Shares that are the subject of the offer within 30 days of Offeror's acceptance (which 30-day period shall be extended to the extent necessary to permit the preparation and filing of any application for Xxxx-Xxxxx-Xxxxxx clearance and any other required regulatory clearance). If the Offeree shall fail to purchase such Common Shares (other than because of the Offeror's failure to perform) within such 30-day period (as the same may be extended for required regulatory clearances), such Common Shares shall cease to be subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement. If, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) 20 days of receipt of the Sale Notice which includes an Offer, the Offeree does not notify the Offeror of Offeree's acceptance of the Offer included in the Sale Notice, the Offeror shall be free, for a period of 120 days, to consummate such offerSale to the Person(s) identified in the Sale Notice, Seller shall thereafter be free to sell or at a price no less than the price set forth in the Sale Notice and on terms otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not no more favorable to the third party purchaser(s) than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatetherein.]
Appears in 1 contract
Right of First Offer. (i) If Seller resizes a Shareholder shall receive a bona fide offer from a third party for such third party to purchase any Shares owned by such Shareholder, which offer such Shareholder intends to accept, such Shareholder, before accepting such third party offer or consummating the Project due sale to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any such third party, unless Seller first offersshall notify the Company in writing of such offer, which notice shall state the number of Shares subject to such offer and the price and terms of payment offered by such third party. The Company shall have thirty (30) days after receipt by it of such notice within which to notify the Shareholder, in writing, of its election to sell to Buyer purchase all (but not less than all) of the Shares that are the subject of such Products from third party offer at the Project on same price and upon the same terms and conditions as this Agreement, subject are contained in such third party offer. Failure by the Company to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects give such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller written notice within such thirty (30) days day period shall constitute a rejection of receipt such offer by the Company. If the Company rejects such offer or fails timely to accept such offer, or if after timely accepting such offer the Company fails timely to consummate the purchase of the First Offer Shares that are the subject of that offer, then such Shareholder shall be free to Buyer’s management approval sell the Shares that are the subject of such third party offer to the third party at the price and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”)upon the same terms and conditions as are set forth in the third party offer; provided, and then however, if such Shareholder does not consummate such sale to the Parties shall have not more than third party within ninety (90) days from after rejection by the Company of the offer, or, if such offer is timely accepted by the Company, after failure of the Company timely to consummate such purchase, the Shares that were the subject of such third party offer shall once again become subject to the provisions of this Section 2.1, and any subsequent disposition of such Shares shall be made only after compliance with the terms of this Section 2.
1. If the Company timely accepts such offer, the consummation by the Company of the purchase of Shares that are the subject of the offer shall be held at the offices of the Company not later than sixty (60) days following the date the Company gives written notice of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt its acceptance of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 1 contract
Samples: Shareholders Agreement (Simcala Inc)
Right of First Offer. 3.1.1 If Agria Corporation proposes to Transfer all or any part of its shares in Agria Group, other than to a Permitted Transferee (ias defined below), Agria Corporation shall first give written notice (the “ROFO Notice”) to New Hope stating its bona fide intention to Transfer such shares (“Relevant Shares”), including a description of any material terms, including the amount of the Relevant Shares and the price per share (the “ROFO Price”), of such intended Transfer. The ROFO Notice shall constitute an irrevocable and binding written offer (the “Offer”) to sell all, but not part, of the Relevant Shares at the ROFO Price and on the offer terms specified in the Offer.
3.1.2 New Hope may accept the Offer by delivering an irrevocable written acceptance (an “Acceptance”) to Agria Corporation within 15 days after the receipt of the ROFO Notice. Following any Acceptance, the closing of the purchase of the Relevant Shares and any Shares being sold pursuant to the exercise of a Tag-Along Right in accordance with Section 3.2 shall take place on the 90th day (unless such day is not a Business Day, in which case it will occur on the Business Day immediately after the 90th day) after the date of such Acceptance unless the parties agree on a different time, subject to the satisfaction of any Conditions, in which case, such closing shall be delayed pending satisfaction of such Conditions; provided, that if any Conditions remain unsatisfied as of the 120th day after the date of Acceptance (the “Expiration Date”), New Hope shall be deemed to have not delivered such Acceptance and Section 3.1.3 shall apply.
3.1.3 If Seller resizes New Hope does not deliver an Acceptance within 15 days after the Project due receipt of the ROFO Notice, and otherwise in accordance with Section 3.1.2, Agria Corporation shall have the right, subject to Permit FailureSection 3.2, then to sell the Relevant Shares to a third party at a price no less than the ROFO Price and at terms and conditions no less favourable to Agria Corporation than those terms and conditions stated in the ROFO Notice for a period of three (3) years 270 days from the date on which Seller Notifies Buyer later of (x) the Contract Capacity Commitment 15th day following the Offer Date and (y) the Expiration Date (the “Exclusivity Sale Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from . If Agria Corporation does not Transfer the Project in excess applicable Relevant Shares before the end of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Sale Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller Agria Corporation may not sell or otherwise transferany Relevant Shares without complying with this Section 3.1.
3.1.4 For the avoidance of doubt, or enter into an Agria Corporation’s rights and obligations under this agreement shall only be with respect to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificatethis Section 3.1.]
Appears in 1 contract
Samples: Shareholders Agreement (Agria Corp)
Right of First Offer. Feygin hereby agrees that he shall not Sell any Equity Security excexx xx accordance with Section 4.4 and with the following procedures:
(ia) If Seller resizes the Project due Feygin shall first deliver to Permit Failureeach Shareholder a written Notice of Ixxxxxxon To Sell, then which shall be irrevocable for a period of three twenty (320) years from days after delivery thereof, offering to each Shareholder the date on which Seller Notifies Buyer right to purchase up to its Preemptive Share of the Contract Capacity Commitment shares proposed to be sold (“Exclusivity Period”), neither Seller, its successors the "Feygin Sale Shares") at the purchase price and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms specifiex xxxxein. Each Shareholder shall have the right and conditions as this Agreementoption, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within for a period of thirty (30) days after delivery to Shareholders of receipt such Notice of Intention To Sell, to purchase all or any part of the First Offer subject to Buyer’s management approval Feygin Sale Shares so offered at the purchase price and CPUC Approval (“Buyer’s on the terms xxxxxd therein. Such acceptance shall be made by delivering a written Notice of First Offer Acceptance”), and then Acceptance to Feygin within the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within aforesaid thirty (30) days day period.
(b) If any Xxxxxxolder shall fail to accept, or shall reject in writing, the offer made pursuant to Section 4.5(a), then, upon the earlier of the expiration of the aforesaid thirty (30) day period or the receipt of Notices of Acceptance, or written rejections of such offer, Seller from all Shareholders, the then remaining Feygin Sale Shares formerly subject to such offer shall thereafter be free reoffered xx xxl other Shareholders, if any, which shall have accepted their Preemptive Share of such original offer. Such subsequent offer shall be on the terms and subject to sell or otherwise transferacceptance in the manner provided in Section 4.5(a), except that the Shareholders receiving such subsequent offer shall have (i) the right and option to accept such offer with respect to all of the then remaining Feygin Sale Shares subject thereto pro rata in accordance with their xxxxxctive Preemptive Shares, for a period of seven (7) business days, and (ii) the further right and option to enter into agreements offer, in any Notice of Acceptance, to sell or otherwise transferpurchase any of such Feygin Sale Shares not purchased by other Shareholders, any Products from in which casx xxxx Feygin Sale Shares not accepted by other Shareholders shall be deemex xx xave been offered to and accepted by the Project to any third partyShareholders which have exercised their option under this clause (ii), so long as pro rata, in accordance with their respective Preemptive Shares, and on the material above-described terms and conditions conditions.
(c) The closing of any sales of Feygin Sale Shares under the terms of Section 4.5(a) shall be made ax xxx offices of the Company on a mutually satisfactory business day within fourteen (14) days after the expiration of the aforesaid periods. Delivery of certificates or other instruments evidencing such Feygin Sale Shares duly endorsed for transfer to the Shareholders shxxx xx made on such date against payment of the purchase price therefor.
(d) If effective acceptance shall not be received pursuant to Section 4(a) above with respect to all Feygin Sale Shares offered for sale pursuant to a Notice of Intentiox Xx Xell, then Feygin may sell all or transfer are any part of the remaining Feygin Sale Shares xx xxxered for sale at a price not less than the xxxxx, and on terms not more favorable to the third party purchaser thereof than those the terms stated in the original Notice of Intention To Sell, at any time within one hundred twenty (l20) days after the expiration of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (iioffer required by Section 4.5(a) above. If within thirty In the event the remaining Feygin Sale Shares are not sold by Feygin during such one hundred twxxxx (30l20) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Sellerday period, the Revised Offer, then Seller will thereafter be free right of Xxxxxn to sell such remaining Feygin Sale Shares shall expire and thx xxxxgations of this Section 0.0 xxall be reinstated; provided, however, that in the event Feygin determines, at any time during such one hundred twenty (l20) xxx xxriod, that the sale of all or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from any part of the Project to any third party remaining Feygin Sale Shares on such the terms and conditions as set forth in the certificateNotice of Intention Xx Xxll is impractical, Feygin can terminate the offer and reinstate the procedure provided xx xxxs Section 4 without waiting for the expiration of such one hundred twenty (l20) day period.]
Appears in 1 contract
Samples: Shareholders Agreement (Telantis Venture Partners v Inc)
Right of First Offer. (a) If IBM proposes to Transfer all or any portion of its Securities ("Offered Securities"), IBM shall (i) give prior written notice (a "Transfer Notice") to the Company of IBM's desire to effect such Transfer, describing the number of Offered Securities IBM desires to sell and requesting that the Company make an offer to purchase such Offered Securities. After receipt of the Transfer Notice, the Company shall be entitled, but not obligated, for 30 days from the date of receipt of the Transfer Notice, to offer to purchase all, but not less than all, of the Offered Securities for cash by delivering a written notice specifying the terms of such offer (the "Offer") to IBM within such 30-day period. If Seller resizes the Project due Company fails to Permit Failuremake an Offer within such 30-day period, then IBM may for a period of three 90 days following the end of such 30-day period, Transfer such Offered Securities to any Person; PROVIDED that the prospective transferee delivers to the Company a document (3in form reasonably satisfactory to the Company) years from stating that the date on which Seller Notifies Buyer prospective transferee agrees to be bound by the terms of this Agreement as if it were IBM and that such Transfer is in full compliance with the Securities Act. If the Company makes an Offer, then IBM shall be entitled, but not obligated, to accept the Offer within 10 days after its receipt thereof (the "Acceptance Deadline") by sending a written acceptance of such Offer in whole (and not in part) to the Company (an "Acceptance"). If such Offer is not accepted, then IBM may for a period of 90 days following the Acceptance Deadline, Transfer all (but not less than all) of such Offered Securities to any Person but only for a per share cash consideration exceeding the consideration per share offered in such Offer; PROVIDED that the prospective transferee delivers to the Company a document (in form reasonably satisfactory to the Company) stating that the prospective transferee agrees to be bound by the terms of this Agreement as if it were IBM and that such Transfer is in full compliance with the Securities Act. Each of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates securities issued upon a Transfer pursuant to this Section 4.3 shall enter into an obligation or agreement to sell or otherwise transfer any Products from bear the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity restrictive legends set forth in the Cover Sheet, to any third partySection 4.7, unless Seller first offersin the reasonable judgment of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. If the Offered Securities are not Transferred within the applicable 90-day period during which IBM may Transfer the Offered Securities as provided above, in writing, such Offered Securities must be re-offered to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer Company in accordance with the provisions hereinof this Section 4.3 if IBM still desires to Transfer the Offered Securities.
(iib) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt The closing of the First purchase of any shares to be purchased by the Company pursuant to an accepted Offer subject pursuant to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”Section 4.3(a), unless otherwise agreed by IBM and then the Parties shall have not more than ninety (90) days from Company, will take place at the offices of the Company on the fifth business day after the date of Buyer’s Notice IBM's Acceptance; PROVIDED, HOWEVER, that any such closing shall be delayed, to enter into a new power purchase agreementthe extent required, in substantially until the same form next succeeding business day following the expiration of any required waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transferamended, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as obtaining of all other necessary governmental approvals. At the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transferclosing, the Products from Company will pay the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as purchase price set forth in the certificateOffer in cash in immediately available funds (by wire transfer) solely upon IBM's delivery to the Company of valid certificates or agreements evidencing all of the Offered Securities then being purchased pursuant to the Offer. Certificates or agreements representing such Offered Securities will be duly endorsed (with signature guaranteed) for delivery to the Company. In connection with the delivery of such certificates or agreements to the Company, IBM will execute such written evidence as the Company may reasonably request to represent and warrant to the Company that the Transferred Offered Securities are owned by IBM free and clear of all liens, adverse claims, and other encumbrances other than as provided in this Agreement. IBM will promptly execute, whether before or after any such closing, such additional documents as are reasonably required by the Company to effect more fully the transactions contemplated by this Section 4.3.]
(c) The Company may Transfer its rights in whole under this Section 4.3 to one, but not more than one, transferee with respect to each Transfer Notice the Company receives from IBM, without any consent or other action on the part of any other party hereto, to an affiliate (as defined for purposes of Rule 405 under the Securities Act, an "Affiliate") of the Company if, but only if, (i) such transferee is an "accredited investor" as such term is defined in Regulation D promulgated under the Securities Act, (ii) the Company agrees to guarantee the performance of such transferee to purchase shares to the extent such transferee makes an offer, and IBM accepts such offer, in accordance with the provisions of this Section 4.3 and (iii) the Company provides IBM with the name, address, phone and facsimile numbers and email address of the relevant contact person for such transferee.
Appears in 1 contract
Samples: Subscription Agreement (TNPC Inc)
Right of First Offer. (ia) If If, at any time prior to the fifth (5th) anniversary of the Closing Date, the Buyer shall propose to sell the Business acquired from the Seller resizes pursuant to this Agreement, the Project due Buyer shall first give notice in writing to Permit FailureRod Maupin, then as agent for the Seller and the Stockholders (the "SELLXX'X XXXXX"), of its intention to do so, which notice (the "FIRST OFFER") shall constitute an offer to the Seller and the Stockholders to purchase the Business from the Buyer at the price and upon payment terms set forth in such notice. The Seller and the Stockholders, acting through the Seller's Agent, shall have a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days after the giving of receipt of such notice by the Buyer to accept in writing (the "FIRST OFFER ACCEPTANCE") the Buyer's offer set forth in the First Offer. If the Seller and the Stockholders, acting through the Seller's Agent, shall have delivered the First Offer subject Acceptance to Buyer’s management approval the Buyer prior to the expiration of such thirty (30) day period, the parties shall negotiate in good faith in an effort to finalize, execute and CPUC Approval (“Buyer’s Notice deliver a definitive purchase agreement containing customary terms with respect to such proposed sale. If the parties are unable to execute and deliver such definitive purchase agreement within a period of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days after receipt by the Buyer of receipt the First Offer Acceptance (the last day of such offerthirty (30) day period at 5:00 p.m., Seller Eastern Time, being the "FIRST OFFER AGREEMENT DEADLINE"), the Buyer shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project Business to any third party, so long as other person or entity during the material terms and conditions of such sale or transfer are not more favorable to one (1) year period commencing with the third party than those expiration of the First Offer to Buyer. If, during Agreement Deadline at a price that is not less than 90% of the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to price proposed by the Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer Offer, and on payment terms which, overall, are no less favorable than such payment terms proposed by the Buyer in the First Offer.
(b) The parties hereto acknowledge and agree that any rights granted to Buyerthe Seller and the Stockholders pursuant to Section 10.17(a) are subject to the Manufacturer's (or any person claiming by, through or under the Manufacturer) right of first refusal, preemptive right or other similar right, with respect to the Business, and that any exercise of such right by a Manufacturer shall not be subject to Section 10.17(a). If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transferAccordingly, the Products from parties hereto acknowledge that any potential closing of a purchase transaction pursuant to Section 10.17(a) will be contingent upon a determination by the Project without Manufacturer that it does not wish to exercise its right of first offering refusal, preemptive right or other similar right with respect to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateBusiness.]
Appears in 1 contract
Right of First Offer. (i) If Seller resizes the Project due Payee agrees that prior to Permit Failure, then offering this Note for sale to a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, Payee shall offer this Note to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer Payor in accordance with the provisions hereinfollowing provisions:
(a) Payee shall notify (the "First Offer Notice") Payor in writing of (i) its intention to offer this Note for sale, and (ii) the price and terms upon which it proposes to offer this Note.
(iib) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty Within ten (3010) days of after receipt of the First Offer subject Notice, Payor may elect to Buyer’s management approval purchase this Note at the price and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then on the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered specified in the First Offer Notice.
(c) If Payor elects not to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transferpurchase this Note, or enter into an agreement if Payor does not make any election within such ten (10) day period with respect to the purchase of the Note, Payee may sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project this Note to any third party on such terms and conditions as set forth at any price which is not less than the price specified in the certificateFirst Offer Notice and upon terms which are not less favorable than the terms specified in the First Offer Notice, and neither Payee nor the acquiror of this Note shall have any further obligations under this Section 14 with respect to this Note; provided, however, that any such sale of this Note to a third party must occur within one hundred twenty (120) days after Payor's election not to purchase this Note or the expiration of the applicable ten (10) day period, as the case may be.]
(d) If Payee desires to sell this Note at a price which is less than the price specified in the First Offer Notice or upon terms which are less favorable than the terms specified in the First Offer Notice, Payee shall notify Payor in writing of the price and terms upon which it proposes to offer this Note in accordance with Section 14(a) of this Note and such notice shall constitute a new First Offer Notice hereunder.
Appears in 1 contract
Right of First Offer. (a) Subject to Section 3.06(g), one or more SVC Parties (the “Electing SVC Parties”) may Transfer all or any portion of their Company Shares to a Third Party Purchaser in compliance with this Section 3.02; provided, however, the SVC Parties may only initiate a Transfer pursuant to this Section 3.02 once in any calendar year.
(b) Prior to Transferring their Company Shares to any Third Party Purchaser, the Electing SVC Parties shall provide the Company with notice (an “SVC Offer Notice”) of their desire to Transfer some or all of their Company Shares.
(c) The SVC Offer Notice shall specify the number of Company Shares that the Electing SVC Parties desire to Transfer (such Company Shares, the “Offered Shares”) and shall include a valuation (without any reduction for minority interests) of the Offered Shares from a Third Party Valuation Firm (the “SVC ROFO Price”), together with reasonable supporting information. Upon request of the Electing SVC Parties, the Company shall provide the Third Party Valuation Firm appointed by the Electing SVC Parties to determine the SVC ROFO Price with such information related to the Offered Shares and the Company as such Third Party Valuation Firm may reasonably request in connection with its determination. Except as provided in Section 3.06(g), the Electing SVC Parties shall bear the costs of such Third Party Valuation Firm.
(d) Upon receipt of the SVC Offer Notice, the Company shall have ten (10) Business Days (the “Initial ROFO Exercise Period”) to elect, by delivering notice to the Electing SVC Parties, that the Company will (i) purchase all, but not less than all, of the Offered Shares at the SVC ROFO Price (a “ROFO Acceptance Notice”) or (ii) provide the Electing SVC Parties with a valuation of the Offered Shares (without any reduction for minority interests) from an alternative Third Party Valuation Firm (a “ROFO Alternative Value”), together with reasonable supporting information, within forty-five (45) days after the end of the Initial ROFO Exercise Period (such notice, a “ROFO Alternative Value Notice”). Any ROFO Acceptance Notice shall be binding upon delivery and irrevocable by the Company.
(e) If Seller resizes the Project due to Permit FailureCompany delivers a ROFO Acceptance Notice during the Initial ROFO Exercise Period, the Electing SVC Parties shall sell, and the Company shall purchase, all, but not less than all, of the Offered Shares at the SVC ROFO Price. If the Company does not deliver a ROFO Acceptance Notice or a ROFO Alternative Value Notice during the Initial ROFO Exercise Period, or if it delivers a ROFO Alternative Value Notice but does not thereafter provide the ROFO Alternative Value when and as required by Section 3.02(f)(i), then for the Company shall be deemed to have waived its rights to purchase the Offered Shares under this Section 3.02 with respect to such SVC Offer Notice.
(f) If the Company provides a period ROFO Alternative Value Notice during the Initial ROFO Exercise Period, the following provisions shall apply:
i. the ROFO Alternative Value Notice shall specify the Third Party Valuation Firm selected by the Company to provide the ROFO Alternative Value, which Third Party Valuation Firm shall be required to deliver to the Electing SVC Parties and the Company within forty-five (45) days after the end of the Initial ROFO Exercise Period its determination of the ROFO Alternative Value, together with reasonable supporting information. The Company shall bear the costs of the Third Party Valuation Firm appointed by it.
ii. If the ROFO Alternative Value is at least ninety percent (90%) and not more than one hundred and ten percent (110%) of the SVC ROFO Price, then the Company shall have the right, to be exercised within three (3) years from Business Days of the date on which Seller Notifies Buyer of the Contract Capacity Commitment delivery of the ROFO Alternative Value, to again send a ROFO Acceptance Notice and if the Company sends a ROFO Acceptance Notice, the Company shall purchase, and the Electing SVC Parties shall sell, all, but not less than all, of the Offered Shares to the Company at the average of the SVC ROFO Price and the ROFO Alternative Value.
iii. If the ROFO Alternative Value is greater than one hundred and ten percent (110%) of the SVC ROFO Price or less than ninety percent (90%) of the SVC ROFO Price, then the Company and the Electing SVC Parties shall jointly appoint a Joint Valuation Firm to determine the value of the Offered Shares, which shall be instructed to provide the Electing SVC Parties and the Company with its determination of the value of the Offered Shares (without any reduction for minority interests) (the “Exclusivity PeriodDetermined ROFO Price”), neither Sellertogether with reasonable supporting information, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt its appointment. The Joint Valuation Firm shall be provided with the prior valuations of the First Offered Shares obtained by the Electing SVC Parties and the Company, but shall not be obligated to base its determination on such valuations. The Company shall also provide the Joint Valuation Firm such additional information related to the Offered Shares and the Company as the Joint Valuation Firm may reasonably request in connection with its determination. Except as provided in Section 3.06(g), the cost of the Joint Valuation Firm will be borne fifty percent (50%) by the Electing SVC Parties and fifty percent (50%) by the Company or as they may otherwise agree. The Joint Valuation Firm shall act as an expert and not an arbitrator and the decision of the Joint Valuation Firm as to the Determined ROFO Price, absent manifest error, shall be final and non-appealable.
iv. If the Determined ROFO Price is greater than one hundred and ten percent (110%) of the SVC ROFO Price or less than ninety percent (90%) of the SVC ROFO Price, the Electing SVC Parties shall have ten (10) days following delivery of the Determined ROFO Price (the “Withdrawal Period”) to provide the Company with notice of their withdrawal of the SVC Offer subject Notice, in which event, the Electing SVC Parties shall not be permitted to Buyer’s management approval sell the Offered Shares to a Third Party Purchaser without sending a new SVC Offer Notice in accordance with, and CPUC Approval otherwise complying with, this Section 3.02. If the SVC Parties do not send notice of their withdrawal of the SVC Offer Notice during the Withdrawal Period, then the Company shall have ten (10) days following the end of the Withdrawal Period (the “Buyer’s Second ROFO Exercise Period”) to again deliver a ROFO Acceptance Notice to the Electing SVC Parties and in such event the Electing SVC Parties shall sell, and the Company shall purchase all, but not less than all, of First the Offered Shares at the Determined ROFO Price. If the Company does not deliver a ROFO Acceptance Notice during the Second ROFO Exercise Period, it shall be deemed to have v. waived its rights to purchase the Offered Shares under this Section 3.02 with respect to such SVC Offer AcceptanceNotice.
(g) The closing of the purchase and sale of the Offered Shares to the Company pursuant to this Section 3.02 shall occur on a date that is not later than seventy-five (75) days after the date on which the Company delivers a ROFO Acceptance Notice pursuant to this Section 3.02, or as otherwise agreed in writing by the Electing SVC Parties and the Company. At the closing of the purchase and sale of the Offered Shares to the Company pursuant to this Section 3.02, the Company shall deliver to the Electing SVC Parties the purchase price for the Offered Shares as determined pursuant to this Section 3.02 by wire transfer of immediately available funds and the Electing SVC Parties shall deliver to the Company the certificate(s) representing the Offered Shares, if any, (or an affidavit of loss with respect to such certificate(s)) accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary.
(h) If the Company does not deliver a ROFO Acceptance Notice or a ROFO Alternative Value Notice during the Initial ROFO Exercise Period or a ROFO Acceptance Notice during the Second ROFO Exercise Period, or has otherwise waived or been deemed to have waived its rights to purchase the Offered Shares, the Electing SVC Parties may, during the one hundred and twenty (120) day period immediately following the later of the expiration of the Initial ROFO Exercise Period or the Second ROFO Exercise Period, as applicable (the “Waived ROFO Transfer Period”), Transfer all of the Offered Shares to a Third Party Purchaser at a price not less than ninety-eight percent (98%) of the lesser of the SVC ROFO Price, the average of the SVC ROFO Price and then the ROFO Alternative Value or the Determined ROFO Price. If the Electing SVC Parties shall have do not more than ninety (90) days from Transfer the date of Buyer’s Notice to enter into Offered Shares within the Waived ROFO Transfer Period, the Electing SVC Parties may not Transfer the Offered Shares unless the Electing SVC Parties send a new power purchase agreementSVC Offer Notice in accordance with, in substantially the same form as and otherwise comply with, this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureSection 3.02.
(iiii) If Xxxxx rejects or fails Each Stockholder shall take all actions as may be reasonably necessary to accept Seller’s First Offer within thirty (30) days of receipt of such offerconsummate the Transfer contemplated by this Section 3.02, Seller shall thereafter be free to sell or otherwise transfer, and to enter including entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(j) During the Waived ROFO Transfer Period, neither the Company nor any Initial Stockholder Party shall engage in any marketing for sale or sale of the Company or any of its Subsidiaries (whether by merger, consolidation or sale of all or substantially all of the assets of the Company or its Subsidiaries) or any Company Shares (including by way of issuance of Company Shares, but other than the Offered Shares on behalf of the Electing SVC Parties) and the Company shall provide the Electing SVC Parties with reasonable assistance and cooperation at the Electing SVC Parties’ expense in connection with their marketing and sale of their Offered Shares.
(k) The Company’s rights under this Section 3.02 to sell acquire the Offered Shares may be assigned in whole or otherwise transfer, any Products from the Project in part to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateStockholder.]
Appears in 1 contract
Right of First Offer. (ia) If Seller resizes the Project due to Permit Failure, then for For a period of three ten (310) years from following the date on which Seller Notifies Closing Date, Buyer shall not, directly or indirectly through an Affiliate or otherwise, enter into any agreement or consummate any transaction involving the sale of all or substantially all of the Contract Capacity Commitment Business Intellectual Property with any unrelated third party (a “Exclusivity PeriodThird Party Transaction”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from ) except in compliance with the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions of this Section 7.08; provided, however, this Section 7.08 shall not restrict any sale of all or substantially all of the Business Intellectual Property to an unrelated third party if such sale is part of an overall sale of all or substantially all of Buyer’s and its Affiliates’ business, taken as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereina whole.
(iib) If Following the Closing Date, if Buyer accepts the First Offeror any of its Affiliates desires to consummate a Third Party Transaction, Buyer shall Notify immediately notify Seller within thirty (30) days of receipt in writing of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice proposed terms of First Offer Acceptance”)the Third Party Transaction, and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as including the material financial and other terms and conditions of such sale or transfer are not more favorable to Third Party Transaction (the third party than those of the First “Offer to BuyerNotice”). If, during the Exclusivity Period, Seller desires Each Offer Notice constitutes an offer made by Buyer to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing on the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered set forth in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions Notice (the “Revised ROFO Offer”).
(c) in accordance with subpart (ii) above. If within At any time prior to the expiration of the thirty (30) days of 30)-day period following Seller’s receipt of Seller’s Revised the Offer Notice (the Buyer rejects“Exercise Period”), or fails to Seller may accept the ROFO Offer by Notice to Sellerdelivering a written notice. If, by the Revised expiration of the Exercise Period, Seller has not accepted the ROFO Offer, then Seller will thereafter be free to sell and provided that Xxxxx has complied with all of the provisions of this Section 7.08, Buyer or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from its Affiliates may consummate the Project to any Third Party Transaction with an unrelated third party on such terms and conditions that are the same or more favorable to Buyer as set forth in the certificateOffer Notice. If such Third Party Transaction is not consummated within a one hundred and twenty (120)-day period, the terms and conditions of this Section 7.08 will again apply and Buyer shall not enter into any Third Party Transaction without affording Seller the right of first offer on the terms and conditions of this Section 7.08.]
Appears in 1 contract
Right of First Offer. (a) If at any xxxx Xxxxxx desires to Transfer to an unaffiliated third party or parties Acquired Shares (i) If Seller resizes the Project due to Permit Failurewhich would constitute more than ten percent (10%) of Parent’s then issued and outstanding Common Stock on a fully-diluted basis, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) belowsuch proposed Transfer would be consummated pursuant to a private sale (other than through any broker dealer transactions) and not through a public offering of securities pursuant to a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act, then prior to effecting such Transfer, Seller shall deliver a written notice (a “ROFO Notice”) to Parent specifying the number of Acquired Shares desired to be Transferred (the “First OfferROFO Shares”) and Buyer either accepts a list of no more than five (5) third parties to whom Seller shall have the right, but not the obligation, to transfer all or rejects a portion of the ROFO Shares in the event that Parent does not acquire such First Offer in accordance with ROFO Shares pursuant to this Section 5.1 (the provisions herein“Proposed Transferees”).
(iib) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) Within 7 days of receipt of the First ROFO Notice (the “Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer AcceptancePeriod”), and then the Parties Parent shall have the right, but not more the obligation, to provide Seller an irrevocable written offer to purchase all, but not less than ninety (90) days from all, of the date of Buyer’s Notice to enter into a new power purchase agreementROFO Shares, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions cash (the “Revised OfferOffer Notice”) in accordance with subpart at such price per ROFO Share (iithe “ROFO Price”) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificateOffer Notice and on a closing date as set forth in the Offer Notice but no later than 30 days following the date of delivery of the Offer Notice (the “ROFO Closing Date”). If Parent delivers an Offer Notice within the Offer Period, Seller shall have two Business Days, in its sole discretion, to accept or reject the Offer Notice, and a failure of Seller to respond within two Business Days following delivery of an Offer Notice shall be deemed to be a rejection. If Seller accepts the offer set forth in the Offer Notice, then on the ROFO Closing Date, Parent shall remit to the Seller the cash consideration to be paid for the ROFO Shares being purchased from the Seller, at the ROFO Price and in immediately available funds, against delivery of certificates for the ROFO Shares, duly endorsed for Transfer. The closing of the sale of the ROFO Shares shall occur at the offices of Parent or such other location as mutually agreed between Parent and Seller.]
(c) If Seller rejects (or is deemed to reject) the Offer Notice, then Seller shall have the right, but not the obligation, to Transfer any or all of the ROFO Shares to any of the Proposed Transferees at a price per ROFO Share that is at least 95% of the ROFO Price; provided, however, with respect to any ROFO Shares not Transferred by Seller to any of the Proposed Transferees within the 90 day period commencing at the end of the Offer Period, Seller shall not Transfer such ROFO Shares in the future without first complying with this Section 5.1, if applicable, to such future Transfers.
(d) If Parent does not deliver an Offer Notice within the Offer Period, then (i) Parent shall forfeit its right to purchase the ROFO Shares and (ii) Seller shall have the right, but not the obligation, to Transfer any or all of the ROFO Shares to any Proposed Transferees at any price per ROFO Share; provided, however, with respect to any ROFO Shares not Transferred by Seller pursuant to this Section 5.1(d)(ii) within the 90 day period commencing at the end of the Offer Period, Seller shall not Transfer such ROFO Shares in the future without first complying with this Section 5.1, if applicable, to such future Transfers.
Appears in 1 contract
Right of First Offer. (ia) If Seller resizes During the Project due year prior to Permit Failurethe final year of the term of this Tolling Contract, then the Company and Hydro agree to negotiate in good faith with respect to a renewal of this Tolling Contract or a new tolling contract in replacement of this Tolling Contract.
(b) The Company agrees that, during the term of this Agreement and for a period of three (3) years from 180 days thereafter, if the date on which Seller Notifies Buyer Company wishes to seek a proposal to operate the production capacity of the Contract Capacity Commitment Company's Goldendale facilities for a third party after the term of this Tolling Contract, the Company shall first notify Hydro of the terms and conditions it wishes to obtain in such proposal. Hydro shall have 45 days following its receipt of the Company's notice to submit a proposal to the Company. In the event that Hydro does not submit such a proposal to the Company within such 45-day period, then the Company shall be free to seek such proposals from third parties. In the event that the Company receives a proposal that is materially less favorable to the Company than the proposal originally requested by the Company from Hydro, then the Company shall not accept such proposal without first giving Hydro written notice of such proposal; for a period of 30 days following such notice Hydro shall have the right to evaluate any proposal and decide whether to match said proposal. If Hydro does not match the proposal within this time, then the Company shall be free to immediately proceed with the proposal and begin producing aluminum under the terms of said proposal. If, after meeting the requirements of this paragraph (“Exclusivity Period”b), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement the Company accepts a proposal to sell or otherwise transfer any Products from operate the Project in excess production capacity of the Contract Capacity CommitmentCompany's Goldendale facilities for a third party after the term of this Tolling Contract, up the Company shall have no further obligations to Hydro under this paragraph (b).
(c) During the Contract Capacity set forth in term of this Tolling Contract, Hydro shall have the Cover Sheetright, but not the obligation, to use any third party, unless Seller first offers, increase in writing, production capacity at the facilities for tolling Hydro's alumina under this Tolling Contract. The Company shall allow Hydro 30 days to sell evaluate whether to Buyer use such Products from the Project on increase in production capacity. If Hydro does not elect to use such increased capacity under the same terms and conditions as this AgreementTolling Contract, subject then the Company agrees to permitted modifications identified negotiate with Hydro in subpart (ii) below, (good faith on the “First Offer”) and Buyer either accepts or rejects terms for using such First Offer in accordance with the provisions hereinincreased capacity to toll Hydro's alumina.
(iid) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt Company elects to operate production capacity for its own account following the expiration of the First Offer subject term of this Tolling Contract, the Company will grant Hydro the right to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties make a first offer to supply alumina at market prices for such operations. Hydro shall have not more than ninety (90) 30 calendar days from the date to exercise such right of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failurefirst offer.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 1 contract
Right of First Offer. (i) If Seller resizes the Project due to Permit Failure, then for a period of three (3) years from the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller Histogenics desires to enter into an obligation or any agreement with a third partyparty to develop and/or manufacture a **** and Purpose has the technology, Seller experiences and resources necessary to assist with such development and manufacturing, then Histogenics shall deliver in good faith provide a written offer for Purpose to Buyer potentially negotiate for such development and/or subsequent manufacturing work (the “Offer Notice”) to Purpose. Purpose shall have **** from receipt of the Offer Notice to begin negotiating an agreement for such development and subsequent manufacturing work with Histogenics. If Purpose rejects the offer, is unable to develop or manufacture such ****, or if after **** of negotiating the parties are unable to come to an agreement regarding such offer or to agree on a certificate reasonable timeframe for concluding the negotiations , then Histogenics may enter into and have discussions with any third party regarding such offer and/or such development and manufacturing work, and Histogenics shall have no other obligations under this Section 14. For the sake of clarity, if the parties agree to extend the timeframe for concluding the negotiations as described in the foregoing sentence, then if by the end of such extension, ****CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. the parties are unable to come to an authorized officer agreement regarding such offer, then Histogenics may enter into and have discussions with any third party regarding such offer and/or such development and manufacturing work, and Histogenics shall have no other obligations under this Section 14. If the parties are able to come to an agreement on the terms of Seller (A) summarizing such projects, Histogenics and Purpose shall enter into a co-development agreement based on a specific project, working on design requirements, quality systems and testing of such ****. If the material parties then choose to develop commercial manufacturing capabilities based on such design, the parties will further negotiate reasonable terms and conditions of for a manufacturing agreement for such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered **** mentioned in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offerthis provision.”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in the certificate.]
Appears in 1 contract
Samples: Agreement (Histogenics Corp)
Right of First Offer. (i) If Seller resizes Subject to Section 5.04(a)(iv), if Xxxxxx Xxxxx or Xxxxxx Kremener, or any Original Member holding a Membership Interest (an “Offering Member”) desires to transfer some or all of its Membership Interest (other than to a Permitted Transferee), it shall deliver a written notice (an “Offer Notice”) of such desire to the Project due to Permit FailureBoard of Managers. The Board of Managers, then for a period of three (3) years from the date on which Seller Notifies Buyer behalf of the Contract Capacity Commitment Company, shall have 30 days after receipt of the Offer Notice (the “Exclusivity Election Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement ) to sell or otherwise transfer any Products from the Project in excess elect by affirmative vote of the Contract Capacity Commitmentmajority of the Managers, up including the Leiber Manager, in accordance with this Agreement, to purchase all (but not less than all) of the Membership Interest specified in the Offer Notice at a price and on the terms specified in written notice of such election (the “Election Notice”) to the Contract Capacity Offering Member. If the Board of Managers has elected to purchase all of the Membership Interest set forth in the Cover SheetOffer Notice and submitted the Election Notice of the Offer Notice, to the Transfer of such Membership Interest shall be consummated as soon as practical after the delivery of the Election Notice, but in any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinevent within 75 days thereafter.
(ii) If Buyer accepts the First OfferBoard of Managers has not elected to purchase all of the Membership Interest being offered during the Election Period, Buyer the Offering Member shall Notify Seller within thirty (30) deliver an Offer Notice to Leiber. Leiber shall have 30 days of after receipt of the First Offer subject Notice (the “Leiber Election Period”) to Buyer’s management approval elect to purchase all (but not less than all) of the Membership Interest specified in the Offer Notice at a price and CPUC Approval on terms specified in written notice of such election (the “Buyer’s Leiber Election Notice”) to the Offering Member. If Leiber elects to purchase all of the Membership Interest set forth in the Officer Notice and submitted the Leiber Election Notice of First the Offer Acceptance”)Notice, and then the Parties Transfer of such Membership Interest shall have not more than ninety (90) be consummated as soon as practical after delivery of the Leiber Election Notice, but in any event within 75 days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failurethereafter.
(iii) If Xxxxx rejects neither the Board of Managers nor Leiber have elected to purchase all of the Membership Interest being offered, the Offering Member may, within nine months after the expiration of the Leiber Election Period, and subject to the provisions of Section 5.04(c), transfer the Membership Interest to one or fails more third parties at a price no less than the price specified in the Offer Notice and on other terms that are not more favorable in the aggregate to accept Seller’s First the Transferees thereof than those that were offered by the Board of Managers in the Election Notice or by Leiber in the Leiber Election Notice; provided, however, that the Offering Member shall first have delivered a second notice setting forth such more favorable terms (the “Amended Offer Notice”) to the Board of Managers and Leiber, as applicable.
(A) If the Offering Member delivers an Amended Offer Notice, the Board of Managers may elect, on behalf of the Company, to acquire all of the Membership Interest specified in the Amended Offer Notice by delivering written notice to the Offering Member not later than 30 days after delivery of the Amended Offer Notice (the “Amended Election Period”). Closing of the purchase pursuant to the Board of Managers’ acceptance of an amended Offer shall occur within thirty 75 days after the Board of Managers gives its Election Notice with respect to the Amended Offer Notice. Any Membership Interest not Transferred by the Offering Member within such nine months after the expiration of the Election Period must be reoffered to the Board of Managers pursuant to this Section 5.04(a) prior to any subsequent Transfer.
(30B) days If the Board of Managers has not elected to purchase all of the Membership Interest set forth in the Amended Offer Notice during the Amended Election Period, the Offering Member shall deliver such Amended Offer Notice to Leiber. Upon receipt of such offerAmended Offer Notice, Seller Leiber may elect to acquire all of the Membership Interest specified in the Amended Offer Notice by delivering written notice to the Offering Member not later than 30 days after delivery of the Amended Offer Notice (the “Leiber Amended Election Period”). Closing of the purchase pursuant to Leiber’s acceptance of an amended Offer shall thereafter occur within 75 days after Leiber gives its Leiber Election Notice with respect to the Amended Offer Notice. Any Membership Interest not Transferred by the Offering Member within such nine months after the expiration of the Leiber Amended Election Period must be free reoffered to sell or otherwise transferthe Board of Managers and Leiber, and as applicable, pursuant to enter into agreements to sell or otherwise transfer, any Products from the Project this Section 5.04(a) prior to any third partysubsequent Transfer.
(iv) For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, Leiber shall not be subject to provisions set forth in this Section 5.04(a). If Leiber desires to transfer some or all of its Membership Interest, it may do so long as without subjecting itself to the material provisions set forth in this Section 5.04(a), or any restriction of any kind, other than the requirement that the Transferee agree to be bound by the terms and conditions of such sale or transfer are not more favorable to this Agreement in the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms same manner as Leiber is bound and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than same rights and privileges; provided, however, that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms Leiber’s rights and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as privileges set forth in the certificateArticle IV shall not transferee to a Transferee that receives less than one hundred percent (100%) of Leiber’s Membership Interest.]
Appears in 1 contract
Samples: Operating Agreement
Right of First Offer. In any transaction other than an open market transaction where any Party (the "Seller"), wishes to sell any or all of its respective Shares (the "Offered Shares") (except where such proposed sale is a result of an unsolicited bid to purchase all of the Seller's Shares, in which case this Section 4.5 shall not apply), then:
(a) the Seller will first deliver to the other Parties (the "Other Parties"), an offer (the "Offer") to sell the Offered Shares at a price and on the conditions set out in the Offer;
(b) any of the Other Parties may, within 15 days of delivery of the Invitation, accept the terms of the Offer and specify an Offer to Purchase which shall specify the price and the terms upon which the Other Party shall purchase the Offered Shares. The Offer to Purchase will state that the offer contained therein is irrevocable;
(c) if no Other Party makes an Offer to Purchase within the time period specified in paragraph (b) above, then this paragraph 4.5 shall no longer apply and the Seller shall be free to sell any or all of the Offered Shares thereafter, subject to the Tag-Along Rights;
(d) if one or more of the Other Parties makes an Offer to Purchase the Offered Shares within the time period specified in paragraph (b) above, then the Seller shall have 90 days to sell the Offered Shares to a third party provided that such sale shall be carried out on the terms that are the same or that are no less favourable from a reasonable vendor's perspective than the terms set forth in each Offer to Purchase received; and
(e) if the Seller does not complete a sale pursuant to paragraph (d) above, then the Seller shall sell its shares:
(i) If Seller resizes in the Project due case that only Other Party has made an Offer to Permit FailurePurchase, then for a period of three (3) years from to such Other Party on the date on which Seller Notifies Buyer of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity terms set forth in the Cover Sheet, Offer to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.Purchase; or
(ii) If Buyer accepts in the First Offer, Buyer shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not case that more than ninety (90) days from the date of Buyer’s Notice one Other Party has made an Offer to enter into a new power purchase agreementPurchase, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Other Party whose Offer to Buyer. If, during Purchase is superior from a reasonable vendor's perspective on the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in such Offer to Purchase or, if the certificateOffers to Purchase are identical, to the Other Parties which made the identical Offers to Purchase in proportion to the number of Shares then held by the Other Parties.]
Appears in 1 contract
Samples: Inter Shareholder Agreement (Elephant & Castle Group Inc)
Right of First Offer. (ia) If Seller resizes at any time the Project due Medigus Member or the ZIG Member desires to Permit FailureTransfer all or part of its Membership Interests (the “Offered Interest”) per Section 9.2(b) or (c) above, then in such case, such Member (the “Transferring Member”) shall provide written notice (a “Transfer Notice”) to the ZIG Member or the Medigus Member, as applicable (the “Offeree Member”) specifying the purchase price for which the Transferring Member wishes to offer its Membership Interests for sale (the “Offered Purchase Price”). Upon receipt of a Transfer Notice, Offeree Member shall have a period of three fourteen (314) years Business Days to elect (by written notice to the Transferring Member) to purchase all or part of the Offered Interest at the Offered Purchase Price. If the Offeree Member elects to purchase all or part of the Offered Interest at the Offered Purchase Price, the closing on the sale shall occur within sixty (60) days from the date on which Seller Notifies Buyer of that the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up Transferring Member gives written notice to the Contract Capacity set forth Offeree Member. The Offered Purchase Price shall be paid in cash at closing by the Cover SheetOfferee Member to the Transferring Member.
(b) In the event that the Offeree Members does not elect to purchase the entire Offered Interest, the Transferring Member may Transfer the Offered Interest or remaining portion thereof to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer shall Notify Seller party transferee within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days of the Transfer Notice, for a purchase price which shall not be less than ninety percent (90%) of the Offered Purchase Price. Notwithstanding the foregoing, in the event, within such ninety (90) day period, the Transferring Member receives an offer to purchase the Property for any amount less than the Offered Purchase Price but equal to or greater than ninety percent (90%) of the Offered Purchase Price, and desires to accept such offer, then, in such event, the Transferring Member shall provide written notice to the Offeree Member (an “Updated Transfer Notice”), specifying the price for which the Transferring Member wishes to sell its Membership Interests (the “Adjusted Purchase Price”), following which the Offeree Member shall have a period of fourteen (14) days to elect (by written notice to the Transferring Member) to elect to purchase all or part of the Offered Interest at the Adjusted Purchase Price.
(c) If the Offeree Member elects to purchase all or part of the Offered Interest at the Offered Purchase Price or Adjusted Purchase Price, as applicable, the closing on the sale shall occur within sixty (60) days from the date of Buyer’s the Transfer Notice or Updated Transfer Notice, as applicable. The Offered Purchase Price or Adjusted Purchase Price, as applicable, shall be paid in cash at closing by the Offeree Member to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit FailureTransferring Member.
(iiid) If Xxxxx rejects In the event that the closing of the Transfer is not effectuated on or fails to accept Seller’s First Offer within thirty before such date that is one hundred and eighty (30180) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project Transfer Notice or Updated Transfer Notice, as applicable, in the event the Transferring Member wishes to any Transfer all or part of its Membership Interests to a third partyparty transferee, so long as the material terms and conditions of such sale or transfer are not more favorable Transferring Member must again provide a Transfer Notice to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) Company in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer this Section 9.3 and the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as procedure set forth in the certificateherein shall commence again.]
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Right of First Offer.
(ia) If Seller resizes PGE terminates this Agreement before the Project Commercial Operation Date due to Permit Failurea Seller Event of Default, then neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Product associated with or attributable to the Facility to a party other than PGE for a period of two (2) years following the termination date of this Agreement, unless before selling, marketing or delivering such Product, or entering into an agreement to sell, market or deliver such Product, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Product on terms and conditions materially similar to the terms and conditions contained in this Agreement. If PGE terminates this Agreement after the Commercial Operation Date due to a Seller Event of Default, neither Seller nor Seller's Affiliates may sell, market or deliver any quantity of the Facility Output associated with or attributable to the Facility to a party other than PGE on a long term basis (for three (3) months or longer) for a period of two (2) years from following the termination date of this Agreement, unless before selling, marketing or delivering such Facility Output, or entering into an agreement to sell, market or deliver such Facility Output, Seller or Seller’s Affiliates provide PGE with a written offer to sell the Facility Output at the Offer Price and on which terms and conditions materially similar to the terms and conditions contained in this Agreement.
(b) If PGE fails to accept an offer made by Seller Notifies Buyer pursuant to Section 3.1.14(a) within forty-five (45) days of PGE’s receipt thereof, Seller and its Affiliates may sell, market or deliver any quantity of the Contract Capacity Commitment (“Exclusivity Period”), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation Facility Output associated with or agreement to sell or otherwise transfer any Products from the Project in excess of the Contract Capacity Commitment, up attributable to the Contract Capacity set forth in Facility at the Cover Sheet, Offer Price offered to PGE to any third party, unless party and on any terms in its sole discretion; provided that any offer proposed by Seller first offers, in writing, to a third party at a price less than the Offer Price shall be subject to Seller providing a new written offer to sell the Facility Output to Buyer PGE pursuant to the requirements contained in this Section 3.1.14. PGE’s acceptance of such Products an offer within forty-five (45) days of PGE’s receipt thereof may be conditioned on PGE obtaining approval from PGE’s Board of Directors or the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, (the “First Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions hereinOregon Public Utility Commission.
(iic) If Buyer accepts Subject to the First Offerrights contained in Section 15.3, Buyer shall Notify neither Seller within thirty (30) days of receipt of nor Seller’s Affiliates may sell or transfer the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this AgreementFacility, or amend this Agreementany part thereof, subject to CPUC Approval, if necessary; provided that or land rights or interests in the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, Site so long as the material limitations contained in this Section 3.1.15 apply, unless the transferee agrees in writing to be bound by the terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on such terms and conditions as set forth in this Section 3.1.15 pursuant to a written agreement approved by PGE.
(d) Seller shall indemnify and hold PGE harmless from all benefits lost and other damages sustained by PGE as a result of any breach by Seller of its covenants contained within this Section 3.1.15. This provision shall survive the certificatetermination of this Agreement.]
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Right of First Offer. (ia) If Seller resizes any Member decides to offer a Project for sale to unrelated third parties within one hundred twenty (120) days following the Project due to Permit FailureSection 7.5 Closing Date (or, then for a period of three (3) years from if applicable, the date on which Seller Notifies Buyer of a Consent Project is distributed to the Contract Capacity Commitment (“Exclusivity Period”selecting Member pursuant to Section 7.5(j)), neither Seller, its successors and assigns, nor its Affiliates shall enter into an obligation or agreement prior to sell or otherwise transfer soliciting any Products from the Project in excess of the Contract Capacity Commitment, up to the Contract Capacity set forth in the Cover Sheet, to any third party, unless Seller first offers, in writing, to sell to Buyer such Products from the Project on the same terms and conditions as this Agreement, subject to permitted modifications identified in subpart (ii) below, offers such Member (the “First Selling Member”) shall give a Notification to the other Member(s) and give such other Member(s) fifteen (15) days in which to make a written offer to purchase the Project (the “Offer”) and Buyer either accepts or rejects such First Offer in accordance with the provisions herein.
(ii) If Buyer accepts the First Offer, Buyer Selling Member shall Notify Seller within thirty (30) days of receipt of the First Offer subject to Buyer’s management approval and CPUC Approval (“Buyer’s Notice of First Offer Acceptance”), and then the Parties shall have not more than ninety (90) days from the date of Buyer’s Notice to enter into a new power purchase agreement, in substantially the same form as this Agreement, or amend this Agreement, subject to CPUC Approval, if necessary; provided that the Contract Price may only be increased to reflect Seller’s documented incremental costs in overcoming the Permit Failure.
(iii) If Xxxxx rejects or fails to accept Seller’s First Offer within thirty (30) days of receipt of such offer, Seller shall thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, any Products from the Project to any third party, so long as the material terms and conditions of such sale or transfer are not more favorable to the third party than those of the First Offer to Buyer. If, during the Exclusivity Period, Seller desires to enter into an obligation or agreement with a third party, Seller shall deliver to Buyer a certificate of an authorized officer of Seller (A) summarizing the material terms and conditions of such agreement and (B) certifying that the proposed agreement with the third party will not provide Seller with a lower rate of return than that offered in the First Offer to Buyer. If Seller is unable to deliver such a certificate to Buyer, then Seller may not sell or otherwise transfer, or enter into an agreement to sell or otherwise transfer, the Products from the Project without first offering to sell or otherwise transfer such Products to Buyer on such more favorable terms and conditions (the “Revised Offer”) in accordance with subpart (ii) above. If within thirty (30) days of receipt of Seller’s Revised Offer the Buyer rejects, or fails to accept by Notice to Seller, the Revised Offer, then Seller will thereafter be free to sell or otherwise transfer, and to enter into agreements to sell or otherwise transfer, such Products from the Project to any third party on for a price equal to or less than the highest price offered by the Member(s) (the highest offering Member, the “Buying Member”), for such Project for 120 days after the date of the Offer (such 120 day period, the “ROFO Period”) unless such Project is re-offered to the Buying Member pursuant to this Section 7.6(a), but may sell such Project for more than such price at any time after receipt of the Offer. If no Member delivers an Offer to the Selling Member within such fifteen (15) day period, then each Member shall have waived its right of first offer with respect to such Project and the Selling Member may sell such Project to a third party at any price at any time without regard to this Section 7.6. Following Selling Member’s receipt of the Offer, Selling Member may either accept the Offer (if the Selling Member has not accepted the Offer in writing within ten (10) days following the Selling Member’s receipt thereof, then the Selling Member shall be deemed to have rejected the Offer) or, subject to the requirements in this Section 7.6(a) sell the applicable Project to a third party at terms and conditions as determined by the Selling Member in its sole discretion; provided, however, during the ROFO Period if the sales price applicable to such third party sale is equal to or less than the price set forth in the certificateOffer, then the Selling Member shall be obligated to re-offer the applicable Project to the Buying Member at such equal or lower price. The Buying Member shall have ten (10) days to accept such re-offer in writing. If the Buying Member fails to so accept such re-offer during such ten (10) day period, then the Selling Member may sell the subject Project at any price at any time.]
(b) Unless otherwise set forth in the Offer (or, if applicable, a re-offer from the Selling Member to the Buying Member), within five (5) Business Days after the Selling Member’s acceptance of the Offer (or, if applicable following a re-offer, the Buying Member’s acceptance of such re-offer), the Buying Member shall deposit Xxxxxxx Money equal to five percent (5%) of the Offer price with an independent and neutral party reasonably satisfactory to the Selling Member. The Xxxxxxx Money shall be applied against the purchase price at the closing referenced below, or shall be paid as liquidated damages in the event of default by the Buying Member. If the Buying Member fails to deposit timely such Xxxxxxx Money, then the Selling Member shall be free to sell the subject Project at any price at any time without further reference to this Section 7.6.
(c) Unless otherwise set forth in the Offer (or, if applicable, a re-offer from the Selling Member to the Buying Member), if the Selling Member accepts the Offer (or, if applicable following a re-offer, if the Buying Member accepts a re-offer from the Seller), the Buying Member shall pay (or cause its designee to pay) to the Selling Member, at a closing to be held at the Selling Member’s principal offices no later than sixty (60) days after the Selling Member’s acceptance of the Offer (or, if applicable, the Buying Member’s acceptance of a re-offer from the Selling Member), an amount equal to the price set forth in the Offer. Simultaneously with the receipt of such payment, the Selling Member shall execute and deliver all documents that may be necessary or appropriate and customary, in the reasonable opinion of counsel to the Buying Member and as determined by a title company selected by the Buying Member, to convey good, marketable and indefeasible fee simple title to the Project, free and clear of all liens and encumbrances (other than (i) liens securing any mortgage debt that the Buying Member shall assume, (ii) liens for taxes not yet delinquent, (iii) easements, rights-of-way, covenants and restrictions which are customary and typical for properties similar to the subject Project, (iv) those title matters affecting the Project existing at the time the Project was acquired by the Selling Member and disclosed on the title insurance commitment issued to the Selling Member at that time and (v) presently effective leases for such Project), together with all documents customarily required in similar transactions or as reasonably required by the Buying Member or the title company, including owner’s title policy and survey. The Buying Member shall execute and deliver all documents reasonably required by the Selling Member to evidence the Buying Member’s assumption of debt which the Buying Member has agreed to assume. All items of income and expenses, charges, escrows, deposits and fees customarily prorated and adjusted in similar transactions shall be so prorated and adjusted. In the event that accurate prorations and adjustments cannot be made at such closing because current bills are not obtainable, the Selling Member and the Buying Member shall prorate on the best available information, subject to adjustment upon receipt of the final bills. At the election of the Buying Member, the Buying Member may acquire all membership interests in a Project Level Entity (or Project Level Entities) rather than fee simple title to a Project (or Projects). If the Buying Member so elects, as part of such membership interest acquisition, the Company, any applicable Project Level Entities and any applicable Members shall execute, seal, swear to, and deliver for and on its or their behalf, all documents that may be necessary or appropriate, in the reasonable opinion of counsel to the Buying Member so electing, to effect such transfer. The Selling Member shall pay all closing costs normally and customarily paid by a seller of a real property interest in the area where the applicable Project is located, and the Buying Member shall pay all closing costs normally and customarily paid by a buyer of a real property interest; provided, however, that the Buying Member and the Selling Member shall each pay the fees and expenses of its own legal counsel. In the event of the Buying Member’s default of its obligation to purchase under this Section 7.6(c), then the Selling Member shall be free to sell the subject Project at any price at any time without further reference to this Section 7.6.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Regency Centers Lp)
