Common use of ROFO Clause in Contracts

ROFO. If, during the Lease Term, (a) Landlord determines to offer all or any portion of the Property to the market (“Take to Market”) for sale; or (b) Landlord receives a bona fide, unsolicited offer from an unrelated third party (an “Unsolicited Offer”; the third party making such Unsolicited Offer, the “Unsolicited Offeror”) to purchase all or any portion of the Property (such portion of the Property, the “Offered Property”), then (A) in the Take to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, of the terms upon which Landlord intends to offer the Offered Property for sale to the market; and (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase Notice”). Landlord shall not submit a ROFO Purchase Notice before Substantial Completion (defined in the Work Letter, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenario. For avoidance of doubt, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion and before submittal of a ROFO Purchase Notice to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant a purchase agreement containing the economic terms set forth in the ROFO Purchase Notice, and the following additional terms (the “ROFO/ROFR Purchase Agreement”): (i) a feasibility period of thirty (30) days, with Tenant having a right of termination during such period; (ii) closing to occur within fifteen (15) Business Days after waiver by Tenant, or expiration, of its feasibility period; (iii) for closing costs to be paid as is customary for the area in which the Property is located; (iv) that Tenant may assign the purchase agreement to any third party without Landlord consent; and (v) standard representations and warranties by Landlord with respect to authority and ownership of the Property. If a contract for sale is required by Legal Requirements to be identified or agreed upon in order for Tenant’s ROFO to be enforceable, the parties agree to use a broker-standard form promulgated by the applicable broker’s association in the area where the Property is located, but incorporating the terms set forth above.

ROFO. If, during the Lease Term, (a) Landlord determines Prior to offer offering to lease or sell all or any portion of the Property Adjacent Premises during or prior to the market (“Take Lease Term to Market”) for sale; or (b) a third party, Landlord receives shall first deliver to Tenant a bona fide, unsolicited offer from an unrelated third party (an “Unsolicited Offer”; the third party making such Unsolicited Offer, the “Unsolicited Offeror”) to purchase all or any portion detailed written notice of the Property (such portion financial terms and the amount of space of the Property, the “Offered Property”), then (A) in the Take to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, of the terms upon Adjacent Premises which Landlord intends to offer the Offered Property for sale lease or sell to the market; and a third party (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase Notice”). Landlord Tenant’s right to lease or purchase the foregoing portion of the Adjacent Premises shall not submit a ROFO Purchase Notice before Substantial Completion (defined in be for the Work Lettersame Base Monthly Rent rate, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenario. For avoidance of doubtterm, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion and before submittal of a ROFO Purchase Notice to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant a purchase agreement containing the economic other financial terms set forth and conditions as are specified in the ROFO Purchase Notice, and the following additional terms Notice (the “ROFO/ROFR Purchase Agreement”): (i) ). The ROFO Notice shall also specify, in reasonable detail, any buildings or improvements which Landlord intends to construct or install on the Adjacent Premises and the timing of such construction and/or installation. The ROFO Notice shall be given as provided in Section 27.01 above. Tenant shall have a feasibility period of thirty (30) days, with Tenant having a right of termination during such period; (ii) closing to occur within fifteen (15) Business Days after waiver from receipt of the ROFO Notice to accept or reject the ROFO. Tenant shall accept the ROFO by Tenantdelivery of written notice of acceptance to Landlord within the foregoing fifteen (15) Business Day period. In the event Tenant provides a written rejection, does not accept the ROFO, makes a substantial change to the ROFO terms, or expirationotherwise fails to provide written notice of acceptance to Landlord within the foregoing fifteen (15) Business Day period, then Tenant shall be deemed to have rejected the ROFO and Landlord shall be free to sell or lease the offered portion of its feasibility period; (iii) for closing costs to be paid as is customary for the area Adjacent Premises specified in which the Property is located; (iv) that Tenant may assign the purchase agreement ROFO Notice to any third party without at any time on substantially the same or more beneficial terms to Landlord consentset forth in the ROFO Notice; provided, however, that if Landlord fails, for any reason to fully execute a purchase and (v) standard representations and warranties by Landlord with respect to authority and ownership sale agreement for the sale of the PropertyAdjacent Premises (in the case of a sale thereof), or fully execute a lease of the Adjacent Premises with a third party (in the case of a lease thereof), within one hundred eighty (180) days after Tenant rejects (or is deemed to have rejected) Landlord’s ROFO Notice, then Landlord be obligated, prior to selling or leasing the Adjacent Premises, to again offer the Adjacent Premises to Tenant for lease or sale (as applicable) pursuant to a ROFO Notice, in which event the preceding terms of this Section 42.02 shall again apply. If A reduction in any of the sales price, lease rate, lease term, or offered portion of the Adjacent Premises of five percent (5%) or less shall not be deemed a contract substantial change in terms for sale is required by Legal Requirements to be identified or agreed upon in order for purposes of this Section 42.02. Upon exercise of the ROFO, Tenant’s ROFO obligations to be enforceable, lease or purchase the parties agree to use a broker-standard form promulgated by portion of the applicable broker’s association Adjacent Premises specified in the area where the Property is located, but incorporating ROFO Notice in accordance with the terms and conditions set forth abovein this Article 43 shall be irrevocable. The period during which the ROFO shall apply (the “ROFO Period”) shall commence on the date of this Lease, and shall expire upon the expiration or earlier termination of the Lease; provided, that if the Lease shall terminate as a result of Tenant’s exercise of its Purchase Option described in Article 43 below, then the ROFO Period shall expire on the date that is immediately prior to the thirty-fifth (35th) anniversary of the Lease Commencement Date.

ROFO. IfAt any time after the Commercial Operation Date, during if Seller proposes to sell the Lease TermFacility to an unaffiliated third party, (a) Landlord determines Seller shall first offer to sell the Facility to Company via notice to Company, if Seller’s parent proposes to sell a majority of the equity interests in Seller to an unaffiliated third party, Seller shall cause its parent first to offer all or any portion to sell such equity interests to Company via notice to Company, and if Seller’s parent owns no assets other than its equity interests in Seller and the parent of Seller’s parent proposes to sell a majority of the Property equity interests in Seller’s parent to an unaffiliated third party, Seller shall cause its parent’s parent first to offer to sell such equity interests to Company via notice to Company (in each case, a “ROFO Notice”) Any ROFO Notice shall describe the proposed transaction, including the minimum price, status of title to the market Site, liabilities to be assumed and other terms which Seller or its relevant parent (“Take as applicable) is willing to Market”accept to proceed with the contemplated transaction. The contents of a ROFO Notice shall be deemed Confidential Information for purposes of Section 20.19 below. Following issuance of a ROFO Notice, Seller shall allow Company 60 Days to investigate the proposed transaction and conduct due diligence. Due diligence shall include such physical inspections, surveys and operating tests of the Facility and the Site, such reviews of Seller’s contracts, books and records, and interviews of such personnel, as Company may reasonably request. All information obtained by Company from such investigations shall be deemed Confidential Information subject to Section 20.19 below. Within such 60-Day period, Company may elect to purchase the Facility or the relevant equity interests (as applicable) for sale; on substantially the same terms as set forth in the ROFO Notice. If Company fails to notify Seller of Company’s election within such 60-Day period, Company shall be deemed to have rejected the transaction. If Company elects to purchase the Facility or the specified equity interests (b) Landlord receives a bona fide, unsolicited offer from an unrelated third party (an “Unsolicited Offer”; the third party making such Unsolicited Offeras applicable), the Parties shall negotiate and execute a definitive contract for the transaction (a “Unsolicited Offeror”) to purchase all or any portion of the Property (such portion of the Property, the “Offered Property”), then (A) in the Take to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, of the terms upon which Landlord intends to offer the Offered Property for sale to the market; and (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase NoticePSA”). Landlord The PSA shall not submit a ROFO Purchase Notice before Substantial Completion (defined in include the Work Letter, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenario. For avoidance of doubt, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion price and before submittal of a ROFO Purchase Notice to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant a purchase agreement containing the economic other terms set forth in the ROFO Purchase NoticeNotice and such other terms as are set forth in Exhibit R – PSA Provisions. In the event that the Parties cannot agree on the final form of PSA, (i) the issue shall be submitted to “baseball” arbitration in Denver, Colorado before one arbitrator appointed by the Arbitration Service, i.e. each Party shall submit to the arbitrator a form of proposed PSA, and the following additional terms (arbitrator shall be required to select one of the “ROFO/ROFR Purchase Agreement”): (i) a feasibility period of thirty (30) daystwo forms to be used as the PSA in the transaction, with Tenant having a right of termination during such period; without compromise, as the arbitral award, (ii) the period for closing of the transaction shall be extended for the period required to occur within fifteen (15) Business Days after waiver by Tenantcomplete arbitration, or expiration, of its feasibility period; and (iii) for closing the Party whose form PSA is rejected shall pay the fees and costs to be paid as is customary for the area in which the Property is located; (iv) that Tenant may assign the purchase agreement to any third party without Landlord consent; and (v) standard representations and warranties by Landlord with respect to authority and ownership of the PropertyArbitration Service. If Company rejects the transaction described in a contract for sale is required by Legal Requirements ROFO Notice, Seller shall have the right to be identified sell the Facility (or agreed upon in order for TenantSeller’s ROFO relevant parent shall have the right to be enforceablesell the specified equity interests, the parties agree as applicable) on terms not more favorable to use a broker-standard form promulgated by the applicable broker’s association in the area where the Property is located, but incorporating Seller or its parent vs. the terms set forth abovein the ROFO Notice, at any time within the twelve-month period following issuance of the ROFO Notice. If Seller or its relevant parent fails to close a transaction on such terms within such 12-month period, any sale of the Facility or equity interests in Seller shall again be subject to this Section 19.3. This Section 19.3 shall be specifically enforceable by Company, without bond and without the need to prove irreparable harm. Seller shall cooperate in all respects reasonably necessary for Company to exercise its ROFO rights, and shall operate the Facility in the ordinary course of business following the date of issuance of a ROFO Notice.

ROFO. IfProvided Landlord has not previously leased the adjacent space as outlined in the attached Exhibit A-1-Right of First Offer Space floor plan, during 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, (a) Landlord determines to offer all or any portion of shall demise the Property ROFO Space from the remaining space in the Building and connect the Premises to the market 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 in 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, then Tenant shall have a right of first refusal (“Take to Market”) for sale; or (b) Landlord receives a bona fide, unsolicited offer from an unrelated third party (an “Unsolicited Offer”; the third party making such Unsolicited Offeras further described below, the “Unsolicited OfferorROFR”) to purchase all execute an amendment to this Lease so as to add the ROFO Space (together with such additional space which may be a part of a bona-fide offer or any portion letter of intent to lease) to the Property Demised Premises (such portion of the Property, the “Offered Property”), then (A) in the Take to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, of the terms upon which Landlord intends to offer the Offered Property for sale to the market; and (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase NoticeExpansion Space”). Landlord shall not submit notify Tenant in writing if and when Landlord receives a ROFO Purchase Notice before Substantial Completion bona-fide offer or letter of intent to lease the Adjacent Space (defined in the Work Letter, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenario. For avoidance of doubt, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion and before submittal together with such additional space which may be a part of a ROFO Purchase Notice bona-fide offer or letter of intent to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant a purchase agreement containing the economic terms set forth in the ROFO Purchase Notice, and the following additional terms lease) (the “ROFO/ROFR Purchase AgreementNotice”): ). Tenant shall have seven (i7) a feasibility period days from receipt of thirty (30) days, with Tenant having a right of termination during such period; (ii) closing ROFR Notice in which to occur within fifteen (15) Business Days after waiver by Tenant, or expiration, notify Landlord in writing of its feasibility period; desire to exercise its ROFR, and seven (iii7) for closing costs days thereafter in 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 paid on all space contemplated in the ROFR Notice. The Amendment to Lease shall provide, among other things, that (a) the Base Rent and Additional Rent on the Expansion Space shall be same per square foot and term as is customary contemplated in the ROFR Notice, (b) the Lease term for the area Expansion Space shall be the same as contemplated in which the Property is located; ROFR Notice, (ivc) that Tenant may assign the purchase agreement to any third party without Landlord consent; The Expansion Space shall be accepted in its AS-IS condition and (vd) standard representations all other terms and warranties by conditions of this Lease shall apply equally to the Expansion Space. Should Tenant fail to exercise the ROFR or to execute the Amendment to Lease in form and substance reasonably acceptable to Landlord with respect to authority and ownership within the above stated periods, time being of the Propertyessence, then Tenant shall have waived its ROFR. If a contract for sale is required by Legal Requirements to be identified or agreed upon in order for Tenant’s ROFO to be enforceable, the parties agree to use a broker-standard form promulgated by the applicable broker’s association in the area where the Property is located, but incorporating the terms set forth above.RENEWAL OPTION

ROFO. IfThe Shareholders' Agreement will contain the following ROFO provisions, during which shall not apply in the Lease Termevent of an Exit: (i) transfers by certain Investors (each, in such capacity, a "Transferring Investor"), being at any time following: (a) Landlord determines the Lock-in Period, any Super Material Investor; and (b) the fifth anniversary of Offer Completion, any Material Investor (“Material Investor Initiated ROFO”), Matter Terms of any of its Shareholder Instruments shall be subject to offer all or any portion a ROFO in favour of the Property Lead Investor (the “Lead Investor ROFO”) (which, provided that the Requisite Approval has been obtained, shall be exercisable by Xxxxxx, in whole or in part, at the Lead Investor's direction) (in such capacity, the "Non-Transferring Investor"); and (ii) transfers by the Lead Investor (in such capacity, a "Transferring Investor") of any of its Shareholder Instruments following the Lock- in Period shall be subject to a ROFO in favour of any Super Material Investor (each, in such capacity, a "Non-Transferring Investor"), whereby the Transferring Investor shall be required to first offer such Shareholder Instruments (the "ROFO Instruments") to the market Non-Transferring Investor(s) by written notice to the Non-Transferring Investor(s) (the "ROFO Notice"), provided that: (i) the Non-Transferring Investor(s) shall, within 30 Business Days of receipt of the ROFO Notice (the “Take to MarketROFO Closing Date”), propose a cash transfer price for all (but not some of) the ROFO Instruments (the “ROFO Price”) for saletogether with any other material terms of the sale in the form of an irrevocable written notice to the Transferring Investor (the “ROFO Offer Notice”); and (ii) if: (a) no Non-Transferring Investor serves a ROFO Offer Notice on the Transferring Investor within 30 Business Days of the ROFO Notice; or (b) Landlord receives one or more Non-Transferring Investors serve a bona fideROFO Offer Notice on the Transferring Investor but the Transferring Investor does not, unsolicited offer from an unrelated within 20 Business Days following the receipt of such ROFO Offer Notice, accept the terms contained in any of the ROFO Offer Notices, the Transferring Investor may transfer the ROFO Instruments to a third party (an “Unsolicited Offer”; the third party making such Unsolicited Offer, the “Unsolicited Offeror”) to purchase all or any portion within six months of the Property ROFO Closing Date for a cash transfer price which shall not be less than the highest ROFO Price offered by the Non-Transferring Investor(s) for such ROFO Instruments and terms no more favourable in all material respects than the terms offered by the Non-Transferring Investor(s), provided that the terms of paragraph 21 are complied with (such portion to the extent applicable). If the Lead Investor ROFO is exercised and the Transferring Investor accepts the terms of the PropertyROFO Offer Notice, the “Offered Property”)Fireball shall be entitled, then (A) in the Take but not obliged, to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, acquire a pro rata proportion of the ROFO Instruments on the same terms upon which Landlord intends to offer as agreed between the Offered Property for sale to Lead Investor and the market; and (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase Notice”). Landlord shall not submit a ROFO Purchase Notice before Substantial Completion (defined in the Work Letter, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenarioTransferring Investor. For the avoidance of doubt, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion and before submittal of a ROFO Purchase Notice to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant a purchase agreement containing the economic terms set forth in the ROFO Purchase NoticePrice shall be payable in cash. If Combination Completion has not occurred within 30 months of Offer Completion, each of Manchester and Alpha shall be entitled to initiate the following additional terms (the “ROFO/ROFR Purchase Agreement”): (i) process for a feasibility period Material Investor Initiated ROFO in respect of thirty (30) days, with Tenant having a right of termination during such period; (ii) closing to occur within fifteen (15) Business Days after waiver by Tenant, or expiration, all of its feasibility period; (iii) for closing costs Shareholder Instruments within twelve months thereafter. Any such third party transferee resulting therefrom shall be deemed to be paid as is customary for the area in which the Property is located; (iv) that Tenant may assign the purchase agreement to any third party without Landlord consent; and (v) standard representations and warranties by Landlord with respect to authority and ownership of the Property. If a contract for sale is required by Legal Requirements to be identified or agreed upon in order for Tenant’s ROFO to be enforceable, the parties agree to use a broker-standard form promulgated by the applicable broker’s association in the area where the Property is located, but incorporating the terms set forth abovean Anchor Investor.