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 the Term(i) Except with respect to any Transfer that, Developer shall not sellif consummated, transfer or otherwise convey, or agree would constitute a Permitted Transfer pursuant to sell, transfer or otherwise convey, except in connection with a joint venture or other financing arrangement Sections 15.03(a)-(g) and any Transfer subject 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 AgreementSection 15.02(a), 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) Transferring Party may make 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 Transfer 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 Ownership Interests only if it has complied 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)(iii15.02 and such Transfer is made in accordance with the other requirements of this Article XV. Prior to initiating any auction or sales process, the Transferring Party shall give to the other Parties written notice (except a Party that, at the time, is in default under Sections 16.01(a), (f) or (g)) of the proposed transaction (the “ROFO Offer Notice”) setting forth the Ownership Interests the Transferring Party proposes to Transfer (the “ROFO Offered Interest”). (ii) Upon receipt of an ROFO Offer Notice, any Party receiving such notice shall have a right to negotiate with the Transferring Party for the purchase of the ROFO Offered Interests by giving written notice to the Transferring Party within thirty (30) days after receipt of the ROFO Offer Notice (the “ROFO Offer Deadline”) stating that it elects to negotiate to acquire the ROFO Offered Interest (the “ROFO Return Notice”). Upon any timely delivery of a ROFO Return Notice by any Party, such Party and the Transferring Party shall negotiate exclusively and in good faith for forty-five (45) days, unless otherwise agreed by those Parties, the terms of the Transfer of the ROFO Offered Interests. A failure to give the ROFO Return Notice by the ROFO Transmission Use and Capacity Exchange Agreement Offer Deadline shall be deemed to be an election not to negotiate to acquire the ROFO Offered Interest and, if both other Parties elect not to negotiate to acquire the ROFO Offered Interest or the applicable Parties do not agree on the Transfer of the ROFO Offered Interests within such forty-five (45) day period, subject to the Transferring Party’s compliance with the provisions of Section 15.01, Sections 15.02(b) and (d) and Section 15.04, the ROFO Offered Interest may be thereafter Transferred.

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 Provided Landlord has not previously leased the adjacent space as outlined in the attached Exhibit A-1-Right of First Offer Space floor plan, containing approximately 6,622 rentable square feet (“ROFO Space”), Tenant shall have a Right of First Offer to lease the ROFO Space Tenant may elect with thirty (30) days prior written notice, to add the ROFO Space at the same Base Rent as the Premises (Base Rent being increased proportionally). Provided there are not less than three (3) years remaining on the Lease Term, Developer Landlord shall demise the ROFO Space from the remaining space in the Building and connect the Premises to the ROFO Space at its sole cost and expenses. ROFR – Continuing throughout the Lease Term, and with respect to the ROFO Space, and provided Tenant is then in good standing and not sellin default and no event of default has occurred that with the giving of notice and/or the passage of time would give rise to an event of default, transfer or otherwise conveythen Tenant shall have a right of first refusal (as further described below, or agree the “ROFR”) to sell, transfer or otherwise convey, except in connection execute an amendment to this Lease so as to add the ROFO Space (together with such additional space which may be a joint venture or other financing arrangement to which Developer is a party, all or any portion part of a tower (including the related Tower Assets and Site if such tower were a “Development Tower” bona-fide offer or an “Acquisition Tower” under this Agreement), or any group letter of towers or any interest therein, located in the Territory, intent to any Person unless Developer has first offered to sell, transfer and convey the tower(s) (including the related Tower Assets and Sitelease) to [***] by written notice the Demised Premises (the “Sale Expansion Space”). Landlord shall notify Tenant in writing if and when Landlord receives a bona-fide offer or letter of intent to lease the Adjacent Space (together with such additional space which may be a part of a bona-fide offer or letter of intent to lease) (the “ROFR Notice”). Any tower previously tendered Tenant shall have seven (7) days from receipt of such ROFR Notice in which to notify Landlord in writing of its desire to exercise its ROFR, and rejected by [***] as described seven (7) days thereafter in this Agreement which to execute an Amendment to Lease in form and substance reasonably acceptable to Landlord. In the event the ROFR Notice contains the Adjacent Space together with additional space in the Building, the Tenant’s election to exercise the ROFR must be on all space contemplated in the ROFR Notice. The Amendment to Lease shall provide, among other things, that (each a “Rejected Tower”a) the Base Rent and Additional Rent on the Expansion Space shall be exempt from same per square foot and term as contemplated in the terms of this Section 2(a)(iii)ROFR Notice, provided that such exemption (b) the Lease term for the Expansion Space shall not apply if Developer proposes to include any Rejected Tower be the same as contemplated 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 ROFR Notice, (the “Renewed ROFO”). c) The Sale Notice Expansion Space shall include (A) a description of the proposed tower(s) be accepted in its AS-IS condition and (Bd) the price and all other terms and conditions on which it is willing of this Lease shall apply equally to sell such tower(s)the Expansion Space. Upon receipt by [***] Should Tenant fail to exercise the ROFR or to execute the Amendment to Lease in form and substance reasonably acceptable to Landlord within the above stated periods, time being of the Sale Notice and continuing for twenty (20) days thereafter (the “Exercise Period”)essence, [***] then Tenant 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 waived 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)ROFR.

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.