Common use of ROFO Clause in Contracts

ROFO. With respect to an Interest Sale, Hotel Sale or Portfolio Sale, the Sale Notice shall constitute an offer by the Initiating Member (i) in the case of an Interest Sale, to sell its entire Membership Interest to the Other Member for the Sale Price, or (ii) in the case of a Hotel Sale, to cause the Company to sell the Hotels that are the subject of such Hotel Sale or the ownership interest in the Venture Vehicle(s) which owns such Hotel(s) to the Other Member (or its designee) for the aggregate Sale Price of each Hotel, or (iii) in the case of a Portfolio Sale, to cause the Company to sell the entire Portfolio (either by a transfer of all the Hotels or a transfer of all the ownership interests in the Existing Venture Vehicles which own all the Hotels) to the Other Member for the Sale Price; provided, however, with respect to clause (iii) above, in lieu of the Sale Price, the Other Member may elect to purchase the Initiating Member’s Membership Interests in the Company for the Allocated ROFO Price (in each case, the “ROFO Price”). The Other Member shall have sixty (60) days after its receipt of such Sale Notice to provide a written response to the Initiating Member that it has elected either to accept (such response, a “ROFO Acceptance”) or reject the Initiating Member’s offer (and in the case of a Hotel Sale, the Other Member may elect to purchase all or some of the Hotels which are subject to the applicable Sale Notice). No later than one (1) Business Day after delivery of a ROFO Acceptance, the Other Member shall deliver a cash deposit in an amount equal to one percent (1%) of the applicable ROFO Price (a “ROFO Deposit”) to a title company mutually acceptable to the Members located in New York, New York (and in the case of a Hotel Sale where the Other Member elects to purchase less than all of the Hotels offered by the Initiating Member pursuant to the Sale Notice, the ROFO Price shall be adjusted accordingly). The failure of the Other Member to deliver the ROFO Deposit within one (1) Business Day shall result in the ROFO Acceptance being deemed ineffective automatically, and without any additional action required by the Initiating Member. The failure of the Other Member to deliver a ROFO Acceptance (and the corresponding ROFO Deposit) within such sixty (60) day period (or sixty-one (61) day period, with respect to a deposit timely delivered after a ROFO Acceptance delivered on the sixtieth (60th) day) shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice, and the delivery of a ROFO Acceptance with respect to fewer than all of the Hotels offered by the Initiating Member pursuant to a Sale Notice issued in connection with a Hotel Sale shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice with respect to the Hotels that are not included in the ROFO Acceptance. If any Interest Sale, Hotel Sale (in whole or in part) or Portfolio Sale is rejected (or deemed rejected), the Initiating Member shall have the right to proceed with the Interest Sale, Hotel Sale (to the extent of any rejected Hotels) or Portfolio Sale, as applicable, for a sale price no less than one hundred percent (100%) of the Sale Price and otherwise on terms not substantially less favorable than those set forth in the Sale Notice (collectively, the “Minimum Terms”). If (i) the Initiating Member does not consummate such Interest Sale, Hotel Sale or Portfolio Sale (as applicable) within nine (9) months from the date of the Sale Notice, or (ii) the Initiating Member intends to consummate such sale for less than the Minimum Terms, the Other Member’s rights under this Section 9.1.4 shall be reinstated and the Initiating Member shall be required to deliver a revised Sale Notice prior to the consummation of such sale.

ROFO. With If Managing Member wishes to cause the Company or the TRS SUB to sell the Property pursuant to Section 9.3(a)(i), it shall first give a notice to the other Members of its desire to sell the Property and of the price and terms on which it is willing to sell the Property (the “ROFO Sale Notice”). If the other Member opposes the sale and wishes to purchase the Property for the price and on the terms proposed by the Managing Member (the “Sale Member”) in the ROFO Sale Notice, it shall so notify the Sale Member in writing within twenty (20) days after receiving the ROFO Sale Notice, and thereafter the parties shall attempt in good faith, for the time period set forth below, to agree on any additional terms of such sale to the buying member (“Buying Member”) which were not included in the ROFO Sale Notice; provided, that the Members agree that such terms must include (a) an acknowledgement that neither the Company nor the Sale Member shall be required to make any representation with respect to the Property; (b) the obligation of the Buying Member to obtain the absolute release of the Company and the Sale Member (and all Affiliates of the Sale Member) from any post-closing obligations or liabilities under any Guarantees to which the Sale Member or its Affiliates is a party or to which the Sale Member or its Affiliates may be bound; (c) an Interest Saleundertaking by the Buying Member to release the Company and the Sale Member from any obligations or liabilities in any way relating to the Property accruing from and after the closing with respect to the Property, Hotel and an indemnity from a creditworthy Affiliate of the Buying Member, reasonably acceptable to the Sale Member, pursuant to which the Company and the Sale Member are indemnified and held harmless from and against any such post-closing obligations or Portfolio Saleliabilities; (d) an undertaking by the Buying Member to release the Sale Member from any post-closing obligations or liabilities under any cross-indemnity agreements to which either Member are parties; (e) an undertaking by the Buying Member to make a five percent (5%) deposit upon the execution and delivery of a mutually acceptable purchase contract, which shall be non-refundable if the Buying Member breaches such purchase contract; and (f) a closing date not later than ninety (90) days after the date of the Buying Member’s receipt of the ROFO Sale Notice. For twenty (20) days after the Buying Member’s receipt of the ROFO Sale Notice, the Sale Notice parties shall constitute an offer by negotiate in good faith to execute and deliver a purchase contract containing all of the Initiating Member terms and conditions for such a sale of the Property to the Buying Member. If for any reason (i) in the case of an Interest Sale, to sell its entire Membership Interest to the Other Buying Member for notifies the Sale Price, or Member it does not wish to purchase the Property; (ii) the Buying Member fails to timely notify the Sale Member that it wishes to purchase the Property at the price and on the terms required above; (iii) the Buying Member timely notifies the Sale Member but a purchase contract is not executed and delivered between the Buying Member and the owner of the Property within the twenty (20) day period for any reason (including the inability of the parties to agree on any terms not set forth in the case ROFO Sale Notice); or (iv) said purchase contract is executed and delivered but the purchase and sale of the Property does not close within ninety (90) days after Buying Member’s receipt of the ROFO Sale Notice for any reason (other than a Hotel Saledefault by the owner of the Property which is not caused by the Buying Member), then the Sale Member shall have the right, and to the extent necessary the Buying Member hereby gives to the Sale Member a power of attorney, coupled with an interest, to cause the Company owner of the Property, to enter into a binding agreement for the sale of the Property and/or to cause the owner of the Property to sell the Hotels that are Property on the subject of such Hotel Sale same or the ownership interest better terms as set forth in the Venture Vehicle(s) which owns such Hotel(s) ROFO Sale Notice to an unaffiliated third party pursuant to this Section 10.5. However, if the Other Sale Member (or its designee) for the aggregate Sale Price of each Hotel, or (iii) in the case of a Portfolio Sale, to does not cause the Company owner of the Property to enter into a binding agreement to sell the entire Portfolio (either by a transfer of all the Hotels or a transfer of all the ownership interests in the Existing Venture Vehicles which own all the Hotels) Property to the Other Member for the Sale Price; provided, however, with respect to clause (iii) above, in lieu of the Sale Price, the Other Member may elect to purchase the Initiating Member’s Membership Interests in the Company for the Allocated ROFO Price (in each case, the “ROFO Price”). The Other Member shall have sixty (60) days after its receipt of such Sale Notice to provide a written response to the Initiating Member that it has elected either to accept (such response, a “ROFO Acceptance”) or reject the Initiating Member’s offer (and in the case of a Hotel Sale, the Other Member may elect to purchase all or some of the Hotels which are subject to the applicable Sale Notice). No later than one (1) Business Day after delivery of a ROFO Acceptance, the Other Member shall deliver a cash deposit in an amount equal to one percent (1%) of the applicable ROFO Price (a “ROFO Deposit”) to a title company mutually acceptable to the Members located in New York, New York (and in the case of a Hotel Sale where the Other Member elects to purchase less than all of the Hotels offered by the Initiating Member pursuant to the Sale Notice, the ROFO Price shall be adjusted accordingly). The failure of the Other Member to deliver the ROFO Deposit unaffiliated third party within one (1) Business Day shall result in year after the ROFO Acceptance being deemed ineffective automatically, and without any additional action required Sale Member is permitted by the Initiating Member. The failure terms of this Section 10.5 to cause the owner of the Other Member Property to deliver enter into a ROFO Acceptance (and binding agreement for the corresponding ROFO Deposit) within such sixty (60) day period (or sixty-one (61) day period, with respect to a deposit timely delivered after a ROFO Acceptance delivered on the sixtieth (60th) day) shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice, and the delivery of a ROFO Acceptance with respect to fewer than all sale of the Hotels offered by the Initiating Member pursuant to a Sale Notice issued in connection with a Hotel Sale shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice with respect to the Hotels that are not included in the ROFO Acceptance. If any Interest Sale, Hotel Sale (in whole or in part) or Portfolio Sale is rejected (or deemed rejected), the Initiating Member shall have the right to proceed with the Interest Sale, Hotel Sale (to the extent of any rejected Hotels) or Portfolio Sale, as applicable, Property for a sale purchase price no less than one hundred of at least ninety percent (10090%) of the Sale Price and otherwise on terms not substantially less favorable than those purchase price set forth in on the Sale Notice (collectively, the “Minimum Terms”). If (i) the Initiating Member does not consummate such Interest Sale, Hotel Sale or Portfolio Sale (as applicable) within nine (9) months from the date of the ROFO Sale Notice, or (ii) then the Initiating Member intends to consummate such sale for less than the Minimum Terms, the Other Member’s rights under this Section 9.1.4 shall be reinstated and the Initiating Sale Member shall be required to deliver a revised Sale Notice again comply with the provisions of this Section 10.5 prior to causing the consummation sale of such saleProperty pursuant to this Section 10.5. The Buying Member may structure any purchase by it under this Section 10.5 of all or substantially all of the assets of the Company as a purchase of the Sale Member’s Participation Percentage Interest by paying the Sale Member on the closing date the same amount that it would have otherwise received upon the sale of the Property under the purchase contract.

ROFO. With respect to an Interest Sale, a Hotel Sale or Portfolio Sale, the Sale Notice shall constitute an offer by the Cindat Member with respect to a Sale Notice delivered pursuant to Section 9.1.3, or the Selling Member with respect to a Sale Notice delivered pursuant to Section 9.1.4 or Section 9.1.5 (in either case, the “Initiating Member Member”) (i) in the case of an Interest Sale, to sell its entire Membership Interest to the Other Member for the Sale Price, or (ii) in the case of a Hotel Sale, to cause the Company to sell the Hotels that are the subject of such Hotel Sale or the ownership interest in the Venture Vehicle(s) which owns such Hotel(s) to the Other other Common Member (or its designee) (the “Other Member”) for the aggregate Sale Price of each Hotel, or (iiiii) in the case of a Portfolio Sale, to cause the Company to sell the entire Portfolio (either by (a) a transfer of all the Hotels Hotels, or (b) or a transfer of all the ownership interests in the Existing Venture Vehicles which own all the Hotels, or (c) a sale of the Initiating Member’s Membership Interest 46 in the Company, to the Other Member for the Sale Price; provided, however, with respect to clause (iiiii)(c) above, in lieu of the Sale Price, the Other Member may elect to purchase the Initiating Member’s Membership Interests in the Company for Price shall be the Allocated ROFO Price (in each case, the “ROFO Price”). The Other Member shall have sixty (60) days after its receipt of such Sale Notice to provide a written response to the Initiating Member that it has elected either to accept (such response, a “ROFO Acceptance”) or reject the Initiating Member’s offer (and in the case of a Hotel Sale, the Other Member may elect to purchase all or some of the Hotels which are subject to the applicable Sale Notice). No later than one three (13) Business Day Days after delivery of a ROFO Acceptance, the Other Member shall deliver a cash deposit in an amount equal to one percent (1%) of the applicable ROFO Price (a “ROFO Deposit”) to a title company mutually acceptable to the Members located in New York, New York (and in the case of a Hotel Sale where the Other Member elects to purchase less than all of the Hotels offered by the Initiating Member pursuant to the Sale Notice, the ROFO Price shall be adjusted accordingly). The failure of the Other Member to deliver the ROFO Deposit within one three (13) Business Day Days shall result in the ROFO Acceptance being deemed ineffective automatically, automatically and without any additional action required by the Initiating Cindat Member. The failure of the Other Member to deliver a ROFO Acceptance (and the corresponding ROFO Deposit) within such sixty (60) day period (or sixty-one (61) day period, with respect to a deposit timely delivered after a ROFO Acceptance delivered on the sixtieth (60th) day) required periods shall be deemed an election by the Other Hersha Member to reject the offer set forth in the Sale Notice, and the delivery of a ROFO Acceptance with respect to fewer than all of the Hotels offered by the Initiating Member pursuant to a Sale Notice issued in connection with a Hotel Sale shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice with respect to the Hotels that are not included in the ROFO Acceptance. If any Interest Sale, Hotel Sale (in whole or in part) or Portfolio Sale is rejected (or deemed rejected), the Initiating Member shall have the right to proceed with the Interest Sale, Hotel Sale (to the extent of any rejected Hotels) or Portfolio Sale, as applicable, for a sale price no less than one hundred percent (100%) of the Sale Price and otherwise on terms not substantially less favorable than those set forth in the Sale Notice (collectively, the “Minimum Terms”). If (i) the Initiating Member does not consummate such Interest Sale, Hotel Sale or Portfolio Sale (as applicable) within nine (9) months from the date of the Sale NoticeNotice (such date falling nine (9) months after the date of the Sale Notice being referred to as the “Deadline”), or (ii) the Initiating Member intends to consummate such sale for less than the Minimum Terms, the Other Member’s rights under this Section 9.1.4 9.1.6 shall be reinstated and the Initiating Member shall be required to deliver a revised Sale Notice prior to the consummation of such sale. Notwithstanding the preceding sentence, the Initiating Member may not deliver any subsequent Sale Notice until the first anniversary of the Deadline.

ROFO. With respect to an Interest Sale, Hotel Sale or Portfolio Sale, (a) Makai shall have the Sale Notice shall constitute an offer by the Initiating Member (i) in the case of an Interest Sale, to sell its entire Membership Interest to the Other Member for the Sale Price, or (ii) in the case of a Hotel Sale, right to cause the Company to sell the Hotels Company Property at any time, provided that are if the subject Getty Entity shall not have previously defaulted under this Section 9.05, and is not then in default hereunder, then (i) prior to any such sale which constitutes a sale in bulk of all of the Company’s assets, together with the assets held by KD Kukio Resorts, LLLP and KD Maninf owali, LLLP (collectively, the “Group Company Property”), Makai shall notify the NY 77646119v1 Getty Entity in writing of the intended sale of the Group Company Property pursuant to a written notice (the “Sale Notice”) which sets forth Makai’s intended sales price for the Group Company Property at the time the Sale Notice is given (the “Proposed Price”) and other proposed terms (the “Proposed Terms”) of such Hotel Sale or the ownership interest in the Venture Vehicle(s) which owns such Hotel(s) to the Other Member sale, and (or its designeeii) for the aggregate Sale Price of each Hotel, or (iii) in period commencing with the case of a Portfolio Sale, to cause the Company to sell the entire Portfolio (either by a transfer of all the Hotels or a transfer of all the ownership interests in the Existing Venture Vehicles which own all the Hotels) to the Other Member for the Sale Price; provided, however, with respect to clause (iii) above, in lieu giving of the Sale PriceNotice and terminating 30 days thereafter (the “ROFO Period”), the Other Member may elect Getty Entity shall have the opportunity to purchase the Initiating Member’s Membership Interests Group Company Property, at a price equal to or in excess of the Proposed Price and on terms no less advantageous to the Company for than the Allocated ROFO Price (in each case, Proposed Terms. If the “ROFO Price”). The Other Member shall have sixty (60) days after its receipt of such Sale Notice to provide a written response to the Initiating Member that it has elected either Getty Entity fails to accept (such response, a “ROFO Acceptance”) or reject the Initiating Member’s offer (and in the case of a Hotel Sale, the Other Member may elect to purchase all or some of the Hotels which are subject to the applicable Sale Notice). No later than one (1) Business Day after delivery of a ROFO Acceptance, the Other Member shall deliver a cash deposit in an amount equal to one percent (1%) of the applicable ROFO Price (a “ROFO Deposit”) to a title company mutually acceptable to the Members located in New York, New York (and in the case of a Hotel Sale where the Other Member elects to purchase less than all of the Hotels offered by the Initiating Member pursuant to the Sale Notice, the ROFO Price shall be adjusted accordingly). The failure of the Other Member to deliver the ROFO Deposit within one (1) Business Day shall result in the ROFO Acceptance being deemed ineffective automatically, and without any additional action required by the Initiating Member. The failure of the Other Member to deliver a ROFO Acceptance (and the corresponding ROFO Deposit) within such sixty (60) day period (or sixty-one (61) day period, with respect to a deposit timely delivered after a ROFO Acceptance delivered on the sixtieth (60th) day) shall be deemed an election by the Other Member to reject the offer terms set forth in the Sale Notice, and then Makai shall be free to compel the delivery of a ROFO Acceptance with respect Company to fewer than all sell the Group Company Property, or any portion thereof, but only if such sale is consummated within 270 days after the expiration of the Hotels offered by ROFO Period (the Initiating Member pursuant “Sale Period”) at a price equal to or greater than 80% of the Proposed Price (prorated if the sale is of only a Sale Notice issued in connection with a Hotel Sale shall be deemed an election by portion of the Other Member to reject the offer set forth in the Sale Notice with respect to the Hotels that are not included in the ROFO AcceptanceGroup Company Property). If any Interest Sale, Hotel Sale (in whole or in part) or Portfolio Sale is rejected (or deemed rejected), the Initiating Member shall have Getty Entity accepts the right to proceed with the Interest Sale, Hotel Sale (to the extent of any rejected Hotels) or Portfolio Sale, as applicable, for a sale price no less than one hundred percent (100%) terms of the Sale Price and otherwise on terms not substantially less favorable than those set forth in Notice, then the Sale Notice (collectively, the “Minimum Terms”). If (i) the Initiating Member does not Getty Entity shall be required to consummate such Interest Sale, Hotel Sale or Portfolio Sale (as applicable) sale within nine (9) months from 30 days after the date of the Sale Notice, or (ii) and the Initiating Member intends to consummate such sale for less than the Minimum Terms, the Other Member’s Getty Entity shall have no further rights under this Section 9.1.4 9.05(a). (b) Nothing in this Section 9.05 or elsewhere herein shall be reinstated and limit the Initiating Member shall be required authority of the Executive Committee to deliver compel a revised Sale Notice prior to sale of the consummation of such saleCompany Property or any portion thereof.

ROFO. With respect to an Interest Sale, Hotel Sale or Portfolio Sale, the Sale Notice shall constitute an offer by the Initiating Member (i) in the case of an Interest Sale, to sell its entire Membership Interest to the Other Member for the Sale Price, or (ii) in the case of a Hotel Sale, to cause the Company to sell its interest in the Hotels that are the subject of such Hotel Sale or the ownership interest in the Venture Vehicle(sHotel Lessee(s) which owns lease such Hotel(s) to the Other Member (or its designee) for the aggregate Sale Price of each Hotel, or (iii) in the case of a Portfolio Sale, to cause the Company to sell the entire Portfolio (either by a transfer of the leasehold interest in all the Hotels or a transfer of all the ownership interests in the Existing Venture Vehicles Hotel Lessees which own lease all the Hotels) to the Other Member for the Sale Price; provided, however, with respect to clause (iii) above, in lieu of the Sale Price, the Other Member may elect to purchase the Initiating Member’s Membership Interests in the Company for the Allocated ROFO Price (in each case, the “ROFO Price”). The Other Member shall have sixty (60) days after its receipt of such Sale Notice to provide a written response to the Initiating Member that it has elected either to accept (such response, a “ROFO Acceptance”) or reject the Initiating Member’s offer (and in the case of a Hotel Sale, the Other Member may elect to purchase the leasehold interests in all or some of the Hotels which are subject to the applicable Sale Notice). No later than one (1) Business Day after delivery of a ROFO Acceptance, the Other Member shall deliver a cash deposit in an amount equal to one percent (1%) of the applicable ROFO Price (a “ROFO Deposit”) to a title company mutually acceptable to the Members located in New York, New York (and in the case of a Hotel Sale where the Other Member elects to purchase less than all of the Hotels offered by the Initiating Member pursuant to the Sale Notice, the ROFO Price shall be adjusted accordingly). The failure of the Other Member to deliver the ROFO Deposit within one (1) Business Day shall result in the ROFO Acceptance being deemed ineffective automatically, and without any additional action required by the Initiating Member. The failure of the Other Member to deliver a ROFO Acceptance (and the corresponding ROFO Deposit) within such sixty (60) day period (or sixty-one (61) day period, with respect to a deposit timely delivered after a ROFO Acceptance delivered on the sixtieth (60th) day) shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice, and the delivery of a ROFO Acceptance with respect to fewer than all of the Hotels offered by the Initiating Member pursuant to a Sale Notice issued in connection with a Hotel Sale shall be deemed an election by the Other Member to reject the offer set forth in the Sale Notice with respect to the Hotels that are not included in the ROFO Acceptance. If any Interest Sale, Hotel Sale (in whole or in part) or Portfolio Sale is rejected (or deemed rejected), the Initiating Member shall have the right to proceed with the Interest Sale, Hotel Sale (to the extent of any rejected Hotels) or Portfolio Sale, as applicable, for a sale price no less than one hundred percent (100%) of the Sale Price and otherwise on terms not substantially less favorable than those set forth in the Sale Notice (collectively, the “Minimum Terms”). If (i) the Initiating Member does not consummate such Interest Sale, Hotel Sale or Portfolio Sale (as applicable) within nine (9) months from the date of the Sale Notice, or (ii) the Initiating Member intends to consummate such sale for less than the Minimum Terms, the Other Member’s rights under this Section 9.1.4 shall be reinstated and the Initiating Member shall be required to deliver a revised Sale Notice prior to the consummation of such sale.