Common use of ROFO Clause in Contracts

ROFO. During the Term, Developer shall not sell, transfer or otherwise convey, or agree to sell, transfer or otherwise convey, except in connection with a joint venture or other financing arrangement to which Developer is a party, all or any portion of a tower (including the related Tower Assets and Site if such tower were a “Development Tower” or an “Acquisition Tower” under this Agreement), or any group of towers or any interest therein, located in the Territory, to any Person unless Developer has first offered to sell, transfer and convey the tower(s) (including the related Tower Assets and Site) to [***] by written notice (the “Sale Notice”). Any tower previously tendered to and rejected by [***] as described in this Agreement (each a “Rejected Tower”) shall be exempt from the terms of this Section 2(a)(iii), provided that such exemption shall not apply if Developer proposes to include any Rejected Tower in an offer to any Person that combines such Rejected Tower with any other tower or group of towers that is subject to this Section 8 (the “Renewed ROFO”). The Sale Notice shall include (A) a description of the proposed tower(s) and (B) the price and other terms and conditions on which it is willing to sell such tower(s). Upon receipt by [***] of the Sale Notice and continuing for twenty (20) days thereafter (the “Exercise Period”), [***] shall have the right, exercisable by giving written notice (the “Exercise Notice”) to Developer, to purchase all (but not less than all, except any tower(s) for which Defects are identified during due diligence) of the tower(s) (including the related Tower Assets and Sites) described in the Sale Notice from Developer on terms and conditions set forth in the Sale Notice. In the event [***] purchases the tower(s) pursuant to this Section 2(a)(iii), the Parties shall negotiate an Asset Purchase Agreement containing at least the same terms and conditions contemplated in the Sale Notice. Unless the Parties otherwise agree, the closing of any purchase of tower(s) shall occur five (5) Business Days after all third-party consents (including governmental approvals) are obtained. As to any tower(s) [***] does not exercise its right to purchase, Developer shall be free, during the [***] period following the Sale Notice (together with any reasonable and bona fide extensions of time required to complete the closing of an agreement made binding during such [***] period), to sell and convey the tower(s) to a bona fide third-party upon the same material terms and conditions available to [***] set forth in the Sale Notice. Any towers (and related Tower Assets and Sites) not sold within such [***] period shall continue to be subject to the requirements of this Section 2(a)(iii).

ROFO. During ROFR. Purchaser acknowledges that each of the TermFranchise Agreements and/or Management Agreements set forth on Schedule 4.8 contains a currently effective purchase option, Developer shall not sellright of first offer, transfer or otherwise convey, or agree to sell, transfer or otherwise convey, except right of first refusal and/or similar rights in connection with a joint venture or other financing arrangement to which Developer is a party, all or any portion favor of a tower third party with respect to a certain Property (including the related Tower Assets and Site if such tower were each, a “Development Tower” ROFO/ROFR”, and such Franchise Agreements and/or Management Agreements, each, a “ROFO/ROFR Agreement”). If any ROFO/ROFR Agreement counterparty exercises any of its ROFO/ROFR rights under such ROFO/ROFR Agreement (or an fails to waive the same in writing) with respect to any Hotel Assets that are subject to a ROFO/ROFR (each, a “Acquisition Tower” under this AgreementROFO/ROFR Asset”), or any group of towers or any interest thereinthen, located if Purchaser in its sole and absolute discretion agrees to waive the TerritoryPurchaser Closing Condition set forth in Section 8.2.1(i) and consummate the Closing as to the other applicable Hotel Assets, (A) all references hereunder to any Person unless Developer has first offered to sell, transfer and convey the tower(s) (including the related Tower Assets and Site) to [***] by written notice such ROFO/ROFR Asset (the “Sale Notice”). Any tower previously tendered to and rejected by [***] as described in this Agreement (each a “Rejected TowerExcluded ROFO/ROFR Asset”) shall be exempt from the terms of this Section 2(a)(iii), provided that deemed deleted and such exemption Excluded ROFO/ROFR Asset shall not apply if Developer proposes to include any Rejected Tower in an offer to any Person that combines such Rejected Tower with any other tower be deemed a “Real Property”, “Hotel Asset” or group part of towers that is subject to this Section 8 (the “Renewed ROFO”). The Sale Notice shall include (A) a description of the proposed tower(s) and Property” for any purpose under this Agreement, (B) the price Purchase Price shall be reduced by the Allocated Purchase Price applicable to such Excluded ROFO/ROFR Asset and other terms and conditions on which it is willing to sell such tower(s). Upon receipt by [***] Purchaser shall receive a return of the Sale Notice Allocated Deposit applicable to such Excluded ROFO/ROFR Asset (and continuing for twenty (20) days thereafter (the “Exercise Period”interest thereon), [***] and (C) neither Sellers nor Purchaser shall have the right, exercisable by giving written notice (the “Exercise Notice”) any further rights or obligations hereunder with regard to Developer, to purchase all (but not less than allsuch Excluded ROFO/ROFR Asset, except any tower(s) for the rights and obligations hereunder which Defects are identified during due diligence) expressly survive termination of this Agreement. Promptly after the Effective Date, Sellers shall send to each ROFO/ROFR Agreement counterparty, if any, the notices required under the applicable ROFO/ROFR Agreement in respect of the tower(s) (including ROFO/ROFR and keep Purchaser reasonably apprised of the related Tower Assets and Sites) described in the Sale Notice from Developer on terms and conditions set forth in the Sale Notice. In the event [***] purchases the tower(s) pursuant to this Section 2(a)(iii), the Parties shall negotiate an Asset Purchase Agreement containing at least the same terms and conditions contemplated in the Sale Notice. Unless the Parties otherwise agree, the closing of any purchase of tower(s) shall occur five (5) Business Days after all third-party consents (including governmental approvals) are obtained. As to any tower(s) [***] does not exercise its right to purchase, Developer shall be free, during the [***] period following the Sale Notice (together with any reasonable and bona fide extensions of time required to complete the closing of an agreement made binding during such [***] period), to sell and convey the tower(s) to a bona fide third-party upon the same material terms and conditions available to [***] set forth in the Sale Notice. Any towers (and related Tower Assets and Sites) not sold within such [***] period shall continue to be subject to the requirements of this Section 2(a)(iii)status thereof.

ROFO. During ROFR. Purchaser acknowledges that each of the TermFranchise Agreements and/or Management Agreements set forth on Schedule 4.8 contains a currently effective purchase option, Developer shall not sellright of first offer, transfer or otherwise convey, or agree to sell, transfer or otherwise convey, except right of first refusal and/or similar rights in connection with a joint venture or other financing arrangement to which Developer is a party, all or any portion favor of a tower third party with respect to a certain Property (including the related Tower Assets and Site if such tower were each, a “Development Tower” ROFO/ROFR”, and such Franchise Agreements and/or Management Agreements, each, a “ROFO/ROFR Agreement”). If any ROFO/ROFR Agreement counterparty exercises any of its ROFO/ROFR rights under such ROFO/ROFR Agreement (or an fails to waive the same in writing) with respect to any Hotel Assets that are subject to a ROFO/ROFR (each, a “Acquisition Tower” under this AgreementROFO/ROFR Asset”), or any group of towers or any interest thereinthen, located if Purchaser in its sole and absolute discretion agrees to waive the TerritoryPurchaser Closing Condition set forth in Section 8.2.1(i) and consummate the applicable Closing as to the other applicable Hotel Assets, (A) all references hereunder to any Person unless Developer has first offered to sell, transfer and convey the tower(s) (including the related Tower Assets and Site) to [***] by written notice such ROFO/ROFR Asset (the “Sale Notice”). Any tower previously tendered to and rejected by [***] as described in this Agreement (each a “Rejected TowerExcluded ROFO/ROFR Asset”) shall be exempt from the terms of this Section 2(a)(iii), provided that deemed deleted and such exemption Excluded ROFO/ROFR Asset shall not apply if Developer proposes to include any Rejected Tower in an offer to any Person that combines such Rejected Tower with any other tower be deemed a “Real Property”, “Hotel Asset” or group part of towers that is subject to this Section 8 (the “Renewed ROFO”). The Sale Notice shall include (A) a description of the proposed tower(s) and Property” for any purpose under this Agreement, (B) the price Purchase Price shall be reduced by the Allocated Purchase Price applicable to such Excluded ROFO/ROFR Asset and other terms and conditions on which it is willing to sell such tower(s). Upon receipt by [***] Purchaser shall receive a return of the Sale Notice Allocated Deposit applicable to such Excluded ROFO/ROFR Asset (and continuing for twenty (20) days thereafter (the “Exercise Period”interest thereon), [***] and (C) neither Sellers nor Purchaser shall have the right, exercisable by giving written notice (the “Exercise Notice”) any further rights or obligations hereunder with regard to Developer, to purchase all (but not less than allsuch Excluded ROFO/ROFR Asset, except any tower(s) for the rights and obligations hereunder which Defects are identified during due diligence) expressly survive termination of this Agreement. Promptly after the Effective Date, Sellers shall send to each ROFO/ROFR Agreement counterparty, if any, the notices required under the applicable ROFO/ROFR Agreement in respect of the tower(s) (including ROFO/ROFR and keep Purchaser reasonably apprised of the related Tower Assets and Sites) described in the Sale Notice from Developer on terms and conditions set forth in the Sale Notice. In the event [***] purchases the tower(s) pursuant to this Section 2(a)(iii), the Parties shall negotiate an Asset Purchase Agreement containing at least the same terms and conditions contemplated in the Sale Notice. Unless the Parties otherwise agree, the closing of any purchase of tower(s) shall occur five (5) Business Days after all third-party consents (including governmental approvals) are obtained. As to any tower(s) [***] does not exercise its right to purchase, Developer shall be free, during the [***] period following the Sale Notice (together with any reasonable and bona fide extensions of time required to complete the closing of an agreement made binding during such [***] period), to sell and convey the tower(s) to a bona fide third-party upon the same material terms and conditions available to [***] set forth in the Sale Notice. Any towers (and related Tower Assets and Sites) not sold within such [***] period shall continue to be subject to the requirements of this Section 2(a)(iii)status thereof.

ROFO. During the TermSeller(s) and ROFO Buyer(s) shall jointly and severally indemnify, Developer shall not selldefend (with counsel acceptable to ROFO Escrow Agent) and save harmless ROFO Escrow Agent from and against all loss, transfer or otherwise conveycost, or agree to sellclaim, transfer or otherwise conveyliability, except damage and expense, including reasonable attorneys’ fees and disbursements incurred in connection with a joint venture the performance of ROFO Escrow Agent’s duties hereunder, except with respect to actions or other financing arrangement to which Developer is a partyomissions taken or suffered by ROFO Escrow Agent in bad faith, all or any portion in willful disregard of a tower (including the related Tower Assets and Site if such tower were a “Development Tower” or an “Acquisition Tower” under this Escrow Agreement), or any group involving gross negligence on the part of towers or any interest therein, located in the Territory, to any Person unless Developer has first offered to sell, transfer and convey the tower(s) (including the related Tower Assets and Site) to [***] by written notice ROFO Escrow Agent (the “Sale NoticeIndemnified Matters”) (but, as between ROFO Seller(s) and ROFO Purchaser(s), each ROFO Buyer and ROFO Seller shall be responsible for its pro rata share of the costs of such Indemnified Matters, based upon its Percentage Interest relative to the Percentage Interests of all ROFO Buyer(s) and ROFO Seller, except to the extent that such Indemnified Matters are attributable to the breach by any ROFO Seller or ROFO Purchaser of the LP Agreement or this Escrow Agreement, in which event the cost shall be borne by whichever of the ROFO Seller(s) or ROFO Purchaser(s) is the breaching party). Any tower previously tendered Escrow Agent hereunder may resign at any time giving ten (10) business days’ prior written notice to that effect to each of the ROFO Seller(s) and rejected by [***] as described in this Agreement (each a “Rejected Tower”) ROFO Purchaser(s). In such event, the successor ROFO Escrow Agent shall be exempt from selected by ROFO Purchaser(s) and approved by ROFO Seller(s), such approval not to be unreasonably withheld or delayed. ROFO Escrow Agent shall then deliver to successor ROFO Escrow Agent the ROFO Deposit, to be held by successor ROFO Escrow Agent pursuant to the terms of this Section 2(a)(iii), provided that such exemption shall not apply if Developer proposes to include any Rejected Tower in an offer to any Person that combines such Rejected Tower with any other tower or group of towers that is subject to this Section 8 (Escrow Agreement and the “Renewed ROFO”). The Sale Notice shall include (A) a description of the proposed tower(s) and (B) the price and other terms and conditions on which it is willing to sell such tower(s). Upon receipt by [***] of the Sale Notice and continuing for twenty (20) days thereafter (the “Exercise Period”), [***] shall have the right, exercisable by giving written notice (the “Exercise Notice”) to Developer, to purchase all (but not less than all, except any tower(s) for which Defects are identified during due diligence) of the tower(s) (including the related Tower Assets and Sites) described in the Sale Notice from Developer on terms and conditions set forth in the Sale Notice. In the event [***] purchases the tower(s) pursuant to this Section 2(a)(iii), the Parties shall negotiate an Asset Purchase Agreement containing at least the same terms and conditions contemplated in the Sale Notice. Unless the Parties otherwise agree, the closing of any purchase of tower(s) shall occur five (5) Business Days after all third-party consents (including governmental approvals) are obtained. As to any tower(s) [***] does not exercise its right to purchase, Developer shall be free, during the [***] period following the Sale Notice (together with any reasonable and bona fide extensions of time required to complete the closing of an agreement made binding during such [***] period), to sell and convey the tower(s) to a bona fide third-party upon the same material terms and conditions available to [***] set forth in the Sale Notice. Any towers (and related Tower Assets and Sites) not sold within such [***] period shall continue to be subject to the requirements of this Section 2(a)(iii)LP Agreement.