Common use of RIGHTS OF FIRST REFUSAL OR OPTION TO PURCHASE Clause in Contracts

RIGHTS OF FIRST REFUSAL OR OPTION TO PURCHASE. A. DEALERSHIP ASSETS OR OWNERSHIP INTERESTS ---------------------------------------- Whenever Dealer proposes to sell its principal assets or the owners of Dealer propose to sell a majority ownership interest in Dealer, in addition to its rights under Articles Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase the dealership assets or ownership interests pursuant to this Paragraph 10. i. If Nissan chooses to exercise its option, it must do so in its written refusal to consent to the proposed sale or transfer pursuant to Section 15.B. Dealer agrees not to complete any proposed change or sale prior to the expiration of the period for exercise of Nissan's option and without Nissan's prior written consent. Such exercise shall be null and void if Dealer withdraws its proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its option. ii. After being exercised, Nissan's option may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price by such assignee. Nissan's rights under this Paragraph 10 shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder. iii. If Dealer has entered into a bona fide written buy/sell agreement respecting its Nissan dealership, Nissan's right under this Paragraph 10 shall be a right of first refusal, enabling Nissan to assume the prospective purchaser's rights and obligations under such buy/sell agreement. The purchase price and other terms of sale shall be those set forth in such agreement and any related documents. Nissan may request, FAA and Dealer agrees to provide all other documents relating to Dealer and to the proposed transfer, including, but not limited to, those reflecting any other agreements or understandings between the parties to the buy/sell agreement. Nissan shall have sixty (60) days from its receipt of all such documents in which to exercise its right of first refusal hereunder. If Dealer refuses either to provide such documentation or to state in writing that no such documents exist, it shall be presumed that the agreement is not bona fide. iv. In the absence of a bona fide written buy/sell agreement, Nissan shall have the option, but no obligation, under this Paragraph 10 to purchase the principal assets of Dealer utilized in the Dealership Operations, including real property and leasehold interest, and to terminate this Agreement and all rights granted Dealer hereunder. If the Dealership Facilities are leased by Dealer from an affiliated company, the right to purchase the principal assets of Dealer shall include the right to lease the Dealership Facilities. The purchase price of Dealer's assets shall be at their fair market value as a going concern as negotiated by the parties and the other terms of sale shall be those agreed by Dealer and Nissan. If Dealer and Nissan are unable to reach a negotiated settlement in a reasonable time, the price and other terms of sale shall be established by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. If Nissan determines that the buy/sell agreement is not bona fide, Nissan will so notify Dealer. Dealer shall have ten (10) days from its receipt of such notice within which to withdraw its proposal. Nissan's exercise of its rights hereunder shall be null and void if Dealer withdraws its proposal within such time period. v. Dealer shall transfer the affected property free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies. Dealer shall also furnish to Nissan copies of any easements, licenses, or other documents affecting the dealership and/or property and shall assign any permits or licenses which are necessary for the conduct of the Dealership Operations. B. REAL PROPERTY ------------- Whenever Dealer proposes to sell or lease any of its Dealership Facilities and/or Dealership Locations, in addition to its rights under Article Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase or lease said Dealership Facilities and/or Dealership Locations pursuant to this Paragraph 10.B. i) If Nissan chooses to exercise its right of first refusal, it must do so by written notice delivered to Dealer within sixty (60) days of Nissan's receipt of notice of the proposed sale or lease by Dealer. Dealer agrees not to complete any proposed sale or lease prior to the expiration of the period for exercise of Nissan's right of first refusal and without Nissan's prior written consent, and agrees to allow Nissan to perform an environmental study of the property. Dealer also agrees to furnish to Nissan copies of any easements, licenses, environmental studies or other documents affecting the property Such exercise shall be null and void if Dealer withdraws its sale or lease proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its right of first refusal. ii) After being exercised, Nissan's right to purchase or lease may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price or the rental payment by such assignee. Nissan's rights under this Paragraph 10.B shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder, and Seller may rescind its offer if the property is determined to be contaminated pursuant to an environmental study. Such contamination shall be deemed a breach of this agreement by dealer. iii) Dealer shall transfer the affected property by Warranty Deed conveying marketable title free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies, or, if applicable, by an assignment of any existing lease. The Warranty Deed shall be in proper form for recording. Dealer shall deliver complete possession of the property at the time of delivery of the Deed or lease assignment. Dealer shall also assign any permit or licenses which are necessary for the conduct of the Dealership Operations. iv) In addition to any other rights Nissan may have at law, in equity or hereunder, any sale or lease of the Dealership Facilities and/or the Dealership Locations in violation of this right of first refusal shall be voidable by Nissan. C. OPTION TO PURCHASE ------------------ If the CMO Agreement or the Dealer Agreement is to expire or be terminated for any reason, including but not limited to the death or physical or mental incapacity, without replacement in accordance with Section 9.C. hereinabove, of Dealer Principal, Nissan has the option to purchase the principal assets of Dealer utilized in the dealership business, including such real property as Nissan in its sole discretion may elect to purchase, and cancel the CMO Agreement and the Dealer Agreement and all rights granted Dealer thereunder. The purchase price of the dealership assets and real property and other terms will be determined by agreement between the parties or, if the parties are unable to reach agreement in a reasonable time, by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. Nissan must advise Dealer of its intent to exercise this option within 30 days prior to the expiration of the CMO Agreement and/or the Dealer Agreement or within 30 days after one party notifies the other of its intent to terminate the CMO Agreement and/or the Dealer Agreement. Nissan may assign its right to exercise its option to purchase under this Paragraph 10.C to any third party.

RIGHTS OF FIRST REFUSAL OR OPTION TO PURCHASE. A. DEALERSHIP ASSETS OR OWNERSHIP INTERESTS ---------------------------------------- Whenever Dealer proposes to sell its principal assets or the owners of Dealer propose to sell a majority ownership interest in Dealer, in addition to its rights under Articles Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase the dealership assets or ownership interests pursuant to this Paragraph 10. i. If Nissan chooses to exercise its option, it must do so in its written refusal to consent to the proposed sale or transfer pursuant to Section 15.B. Dealer agrees not to complete any proposed change or sale prior to the expiration of the period for exercise of Nissan's option and without Nissan's prior written consent. Such exercise shall be null and void if Dealer withdraws its proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its option. ii. After being exercised, Nissan's option may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price by such assignee. Nissan's rights under this Paragraph 10 shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder. iii. If Dealer has entered into a bona fide written buy/sell agreement respecting its Nissan dealership, Nissan's right under this Paragraph 10 shall be a right of first refusal, enabling Nissan to assume the prospective purchaser's rights and obligations under such buy/sell agreement. The purchase price and other terms of sale shall be those set forth in such agreement and any related documents. Nissan may request, FAA and Dealer agrees to provide all other documents relating to Dealer and to the proposed transfer, including, but not limited to, those reflecting any other agreements or understandings between the parties to the buy/sell agreement. Nissan shall have sixty (60960) days from its receipt of all such documents in which to exercise its right of first refusal hereunder. If Dealer refuses either to provide such documentation or to state in writing that no such documents exist, it shall be presumed that the agreement is not bona fide. iv. In the absence of a bona fide written buy/sell agreement, Nissan shall have the option, but no obligation, under this Paragraph 10 to purchase the principal assets of Dealer utilized in the Dealership Operations, including real property and leasehold interest, and to terminate this Agreement and all rights granted Dealer hereunder. If the Dealership Facilities are leased by Dealer from an affiliated company, the right to purchase the principal assets of Dealer shall include the right to lease the Dealership Facilities. The purchase price of Dealer's assets shall be at their fair market value as a going concern as negotiated by the parties and the other terms of sale shall be those agreed by Dealer and Nissan. If Dealer and Nissan are unable to reach a negotiated settlement in a reasonable time, the price and other terms of sale shall be established by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. If Nissan determines that the buy/sell agreement is not bona fide, Nissan will so notify Dealer. Dealer shall have ten (10) days from its receipt of such notice within which to withdraw its proposal. Nissan's exercise of its rights hereunder shall be null and void if Dealer withdraws its proposal within such time period. v. Dealer shall transfer the affected property free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies. Dealer shall also furnish to Nissan copies of any easements, licenses, or other documents affecting the dealership and/or property and shall assign any permits or licenses which are necessary for the conduct of the Dealership Operations. B. REAL PROPERTY ------------- Whenever Dealer proposes to sell or lease any of its Dealership Facilities and/or Dealership Locations, in addition to its rights under Article Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase or lease said Dealership Facilities and/or Dealership Locations pursuant to this Paragraph 10.B.l0.B. i) If Nissan chooses to exercise its right of first refusal, it must do so by written notice delivered to Dealer within sixty (60) days of Nissan's receipt of notice of the proposed sale or lease by Dealer. Dealer agrees not to complete any proposed sale or lease prior to the expiration of the period for exercise of Nissan's right of first refusal and without Nissan's prior written consent, and agrees to allow Nissan to perform an environmental study of the property. Dealer also agrees to furnish to Nissan copies of any easements, licenses, environmental studies or other documents affecting the property Such exercise shall be null and void if Dealer withdraws its sale or lease proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its right of first refusal. ii) After being exercised, Nissan's right to purchase or lease may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price or the rental payment by such assignee. Nissan's rights under this Paragraph 10.B l0.B shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder, and Seller may rescind its offer if the property is determined to be contaminated pursuant to an environmental study. Such contamination shall be deemed a breach of this agreement by dealer. iii) Dealer shall transfer the affected property by Warranty Deed conveying marketable title free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies, or, if applicable, by an assignment of any existing lease. The Warranty Deed shall be in proper form for recording. Dealer shall deliver complete possession of the property at the time of delivery of the Deed or lease assignment. Dealer shall also assign any permit or licenses which are necessary for the conduct of the Dealership Operations. iv) In addition to any other rights Nissan may have at law, in equity or hereunder, any sale or lease of the Dealership Facilities and/or the Dealership Locations in violation of this right of first refusal shall be voidable by Nissan. C. OPTION TO PURCHASE ------------------ If the CMO Agreement or the Dealer Agreement is to expire or be terminated for any reason, including but not limited to the death or physical or mental incapacity, without replacement in accordance with Section 9.C. hereinabove, of Dealer Principal, Nissan has the option to purchase the principal assets of Dealer utilized in the dealership business, including such real property as Nissan in its sole discretion may elect to purchase, and cancel the CMO Agreement and the Dealer Agreement and all rights granted Dealer thereunder. The purchase price of the dealership assets and real property and other terms will be determined by agreement between the parties or, if the parties are unable to reach agreement in a reasonable time, by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. Nissan must advise Dealer of its intent to exercise this option within 30 days prior to the expiration of the CMO Agreement and/or the Dealer Agreement or within 30 days after one party notifies the other of its intent to terminate the CMO Agreement and/or the Dealer Agreement. Nissan may assign its right to exercise its option to purchase under this Paragraph 10.C to any third party.

RIGHTS OF FIRST REFUSAL OR OPTION TO PURCHASE. A. DEALERSHIP ASSETS OR OWNERSHIP INTERESTS ---------------------------------------- Whenever Dealer proposes to sell its principal assets or the owners of Dealer propose to sell a majority ownership interest in Dealer, in addition to its rights under Articles Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase the dealership assets or ownership interests pursuant to this Paragraph 10. i. If Nissan chooses to exercise its option, it must do so in its written refusal to consent to the proposed sale or transfer pursuant to Section 15.B. Dealer agrees not to complete any proposed change or sale prior to the expiration of the period for exercise of Nissan's option and without Nissan's prior written consent. Such exercise shall be null and void if Dealer withdraws its proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its option. ii. After being exercised, Nissan's option may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price by such assignee. Nissan's rights under this Paragraph 10 shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder. iii. If Dealer has entered into a bona fide written buy/sell agreement respecting its Nissan dealership, Nissan's right under this Paragraph 10 shall be a right of first refusal, enabling Nissan to assume the prospective purchaser's rights and obligations under such buy/sell agreement. The purchase price and other terms of sale shall be those set forth in such agreement and any related documents. Nissan may request, FAA and Dealer agrees to provide all other documents relating to Dealer and to the proposed transfer, including, but not limited to, those reflecting any other agreements or understandings between the parties to the buy/sell agreement. Nissan shall have sixty (60960) days from its receipt of all such documents in which to exercise its right of first refusal hereunder. If Dealer refuses either to provide such documentation or to state in writing that no such documents exist, it shall be presumed that the agreement is not bona fide. iv. In the absence of a bona fide written buy/sell agreement, Nissan shall have the option, but no obligation, under this Paragraph 10 to purchase the principal assets of Dealer utilized in the Dealership Operations, including real property and leasehold interest, and to terminate this Agreement and all rights granted Dealer hereunder. If the Dealership Facilities are leased by Dealer from an affiliated company, the right to purchase the principal assets of Dealer shall include the right to lease the Dealership Facilities. The purchase price of Dealer's assets shall be at their fair market value as a going concern as negotiated by the parties and the other terms of sale shall be those agreed by Dealer and Nissan. If Dealer and Nissan are unable to reach a negotiated settlement in a reasonable time, the price and other terms of sale shall be established by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. If Nissan determines that the buy/sell agreement is not bona fide, Nissan will so notify Dealer. Dealer shall have ten (10) days from its receipt of such notice within which to withdraw its proposal. Nissan's exercise of its rights hereunder shall be null and void if Dealer withdraws its proposal within such time period. v. Dealer shall transfer the affected property free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies. Dealer shall also furnish to Nissan copies of any easements, licenses, or other documents affecting the dealership and/or property and shall assign any permits or licenses which are necessary for the conduct of the Dealership Operations. B. REAL PROPERTY ------------- Whenever Dealer proposes to sell or lease any of its Dealership Facilities and/or Dealership Locations, in addition to its rights under Article Third and Fourth of the Dealer Agreement and Section 15.B of the Standard Provisions, Nissan shall have the right and option to purchase or lease said Dealership Facilities and/or Dealership Locations pursuant to this Paragraph 10.B. i) If Nissan chooses to exercise its right of first refusal, it must do so by written notice delivered to Dealer within sixty (60) days of Nissan's receipt of notice of the proposed sale or lease by Dealer. Dealer agrees not to complete any proposed sale or lease prior to the expiration of the period for exercise of Nissan's right of first refusal and without Nissan's prior written consent, and agrees to allow Nissan to perform an environmental study of the property. Dealer also agrees to furnish to Nissan copies of any easements, licenses, environmental studies or other documents affecting the property Such exercise shall be null and void if Dealer withdraws its sale or lease proposal within thirty (30) days following Dealer's receipt of Nissan's notice exercising its right of first refusal. ii) After being exercised, Nissan's right to purchase or lease may be assigned to any party, and Nissan hereby agrees to guarantee the full payment of the purchase price or the rental payment by such assignee. Nissan's rights under this Paragraph 10.B l0.B shall be binding on and enforceable against any assignee or successor in interest of Dealer or purchaser of Dealer's assets. Nissan shall have no obligation to exercise its rights hereunder, and Seller may rescind its offer if the property is determined to be contaminated pursuant to an environmental study. Such contamination shall be deemed a breach of this agreement by dealer. iii) Dealer shall transfer the affected property by Warranty Deed conveying marketable title free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies, or, if applicable, by an assignment of any existing lease. The Warranty Deed shall be in proper form for recording. Dealer shall deliver complete possession of the property at the time of delivery of the Deed or lease assignment. Dealer shall also assign any permit or licenses which are necessary for the conduct of the Dealership Operations. iv) In addition to any other rights Nissan may have at law, in equity or hereunder, any sale or lease of the Dealership Facilities and/or the Dealership Locations in violation of this right of first refusal shall be voidable by Nissan. C. OPTION TO PURCHASE ------------------ If the CMO Agreement or the Dealer Agreement is to expire or be terminated for any reason, including but not limited to the death or physical or mental incapacity, without replacement in accordance with Section 9.C. hereinabove, of Dealer Principal, Nissan has the option to purchase the principal assets of Dealer utilized in the dealership business, including such real property as Nissan in its sole discretion may elect to purchase, and cancel the CMO Agreement and the Dealer Agreement and all rights granted Dealer thereunder. The purchase price of the dealership assets and real property and other terms will be determined by agreement between the parties or, if the parties are unable to reach agreement in a reasonable time, by arbitration pursuant to the Dispute Resolution Process established in Paragraph 12 hereof. Nissan must advise Dealer of its intent to exercise this option within 30 days prior to the expiration of the CMO Agreement and/or the Dealer Agreement or within 30 days after one party notifies the other of its intent to terminate the CMO Agreement and/or the Dealer Agreement. Nissan may assign its right to exercise its option to purchase under this Paragraph 10.C to any third party.