Common use of Sale to Third Party Clause in Contracts

Sale to Third Party. In the event that the Company and the Investors do not elect to exercise the rights to purchase under this Section 3.3 with respect to all of the Shares proposed to be sold, the Transferring Restricted Stockholder may sell all such Shares to the Buyer on the terms and conditions set forth in the Offer Notice, subject to the provisions of Section 3.4. Promptly after such Transfer, the Transferring Restricted Stockholder shall notify the Company, which in turn shall promptly notify all the Investors, of the consummation thereof and shall furnish such evidence of the completion and time of completion of the Transfer and of the terms thereof as may reasonably be requested by a Preferred Majority. Prior to the effectiveness of any Transfer to a Buyer hereunder, such Buyer shall have entered into a Joinder Agreement in substantially the form attached hereto as Exhibit A, and such Buyer shall have all the rights and obligations hereunder as if such Buyer were a Restricted Stockholder. If the Transferring Restricted Stockholder’s sale to a Buyer is not consummated in accordance with the terms of the Transaction Offer on or before sixty (60) calendar days after the latest of: (i) the expiration of the Company Option Period, (ii) the expiration of the Investor Option Period, (iii) the expiration of the Co-Sale Election Period set forth in Section 3.4 below, if applicable, and (iv) the satisfaction of all governmental approval or filing requirements, the Transaction Offer shall be deemed to lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be in violation of the provisions of this Agreement unless the Transferring Restricted Stockholder sends a new Offer Notice and once again complies with the provisions of this Section 3.3 with respect to such Transaction Offer.

Sale to Third Party. At any time, a Member may transfer its interest in the JVC to a non-Affiliated third party (the “Third Party”) in accordance with the following terms: (a) So long it is not in breach of this Agreement, any Member, at its discretion, may solicit a written bona fide offer (“Bona Fide Offer”) from a Third Party to buy all, or any part, of its interest in the JVC. In the event that one Member (the Company “Selling Member”) receives a Bona Fide Offer containing price and other material terms of a sale and wishes to transfer its interest to a Third Party, it must first offer in writing to the Investors do not elect to exercise other Member (the rights to purchase under this Section 3.3 with respect to all of “Other Member”) for acquisition the Shares entire proposed interest to be sold, transferred. The Other Member shall have the Transferring Restricted Stockholder may sell all right of first refusal to acquire such Shares to the Buyer on the interest at a price and upon terms and conditions set forth in as favorable to the Offer NoticeOther Member as those the Selling Member has been offered and is willing to accept from the Third Party. (i) If the Other Member does not exercise its right to acquire such interest of the Selling Member, the Selling Member is free to sell its JVC Interest to the Third Party, subject to the provisions of Section 3.4. Promptly 14.2 and 14.4, but not for less than the purchase price offered to the Other Member and not on material terms more favorable than offered to the Other Member. (ii) The offer must be made to the Other Member by first class mail, courier or telecopy; such offer may be accepted only in writing delivered to the Selling Member within ninety (90) days after such Transfer, the Transferring Restricted Stockholder shall notify the Company, which in turn shall promptly notify all the Investors, sending of the consummation thereof and shall furnish such evidence offer. The offer must include all terms of the completion proposed transfer, including purchase price, payment terms and time of completion the identity (including beneficial ownership) of the Transfer and of the terms thereof as may reasonably be requested by a Preferred Majority. Prior to the effectiveness of any Transfer to a Buyer hereunder, such Buyer shall have entered into a Joinder Agreement in substantially the form attached hereto as Exhibit A, and such Buyer shall have all the rights and obligations hereunder as if such Buyer were a Restricted StockholderThird Party. If the Transferring Restricted Stockholder’s sale Other Member exercises its right to acquire such interest, the transfer of the interest and payment of the purchase price must be completed within one hundred eighty (180) days after acceptance, subject only to delays caused by obtaining the requisite approvals of Governmental Authorities. (iii) If the Other Member does not exercise its rights to acquire such interest of the Selling Member, they will be deemed to agree to the acquisition by a Buyer Third Party, provided that the requirements of Sections 14.2 and 14.4 of this Agreement are satisfied. (iv) The transfer of the interest to the Third Party and payment of the purchase price must be completed within one hundred eighty (180) days after the ninety (90) day period set out in Section 14.4(a)(ii), subject only to delays caused by obtaining the requisite approvals of Governmental Authorities, and the purchase price must be the same as or higher than that offered to the Other Member under Section 14.4(a)(ii) and the other material terms must be no more favorable than that offered to the Other Member under Section 14.4(a)(ii). If the transfer is not consummated completed within the one hundred eighty (180) day period, the Selling Member shall not be permitted to transfer and shall not transfer its interest to the third party unless it first repeats its offer of such interest to the Other Parties in accordance with this Section 14.4. (b) Notwithstanding the terms first paragraph of Section 14.4, in the Transaction Offer on or before sixty (60) calendar days after the latest of: (i) the expiration event of the Company Option Periodan occurrence and continuance of a Default by a Member, (ii) the expiration of the Investor Option Period, (iii) the expiration of the Co-Sale Election Period as set forth out in Section 3.4 below, if applicable, and (iv) the satisfaction of all governmental approval or filing requirements15.1, the Transaction Offer non-Defaulting Member shall be deemed permitted to lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be in violation of the provisions of this Agreement unless the Transferring Restricted Stockholder sends a new Offer Notice and once again complies with the provisions of this exercise its rights under Section 3.3 with respect to such Transaction Offer14.4.

Sale to Third Party. In the event that the Company and the Investors do not elect (i) If a Member Group has failed to exercise the rights its right to purchase under the Offered Interest (or has failed to consummate such purchase) within the applicable time periods specified above in this Section 3.3 with respect to all of the Shares proposed to be sold7.3, the Transferring Restricted Stockholder Selling Group may accept the Offer and sell all such Shares the Offered Interest to the Buyer Offeror; provided that such sale shall be at the same price and on the same terms and conditions set forth as specified in the Offer Notice, subject ; and provided further that such sale shall have been approved pursuant to the provisions requirements of Section 3.4. Promptly after such Transfer, the Transferring Restricted Stockholder shall notify the Company, which in turn shall promptly notify all the Investors, of the consummation thereof and shall furnish such evidence of the completion and time of completion of the Transfer and of the terms thereof as may reasonably be requested by a Preferred Majority. Prior to the effectiveness of any Transfer to a Buyer hereunder, such Buyer shall have entered into a Joinder Agreement in substantially the form attached hereto as Exhibit A, and such Buyer shall have all the rights and obligations hereunder as if such Buyer were a Restricted Stockholder7.3(g). If the Transferring Restricted Stockholder’s sale by the Selling Group to a Buyer the Offeror is not consummated within 90 days, such right to sell shall lapse and the Selling Group shall not thereafter transfer its Interest except in accordance with the terms of the Transaction Offer on or before sixty (60) calendar days after the latest of: (i) the expiration of the Company Option Period, (ii) the expiration of the Investor Option Period, (iii) the expiration of the Co-Sale Election Period set forth in Section 3.4 below, if applicable, and (iv) the satisfaction of all governmental approval or filing requirements, the Transaction Offer shall be deemed to lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be in violation of the provisions of this Agreement unless the Transferring Restricted Stockholder sends a new Offer Notice and once again complies with the provisions of this Section 3.3 7.3, provided, however, that if governmental or regulatory approval is required for the consummation of such transaction, the Closing may be deferred until not more than 180 days subsequent to the expiration of the time periods specified above in this Section 7.3. (ii) At the closing of any sale of an Interest to a third party pursuant to this Section 7.3, such third party shall execute this Agreement or a counterpart to this Agreement and any Related Agreements to which Members of the Selling Group (or Affiliates thereof) are party and shall be bound by the provisions of and assume the obligations of the Selling Group under all such Agreements. The Selling Group shall not be relieved of any of its obligations under this Agreement arising prior to such sale, to the extent such obligations shall not be discharged by the third party, but the Selling Group shall be relieved of any obligations under this Agreement arising subsequent to such sale with respect to the Interest being transferred; nothing herein shall be construed to relieve any Member of the Selling Group of any obligations under any Related Agreement. The Selling Group and the third party shall execute such Transaction Offerdocuments as the other Member Groups shall reasonably request to evidence such assumption and continuing obligations. Any sale to a third party pursuant to this Section 7.3 may be structured as two or more transfers of part of the Interest being sold, which taken together effectuate a transfer of the entire Interest, all of which shall be consummated within 15 months from the date of closing of the first of such transfers.

Sale to Third Party. In the event that the Company and the Investors do not elect to exercise the rights If MCEL elects to purchase under this Section 3.3 with respect to less than all of the Transfer Shares proposed to be sold, offered by the Transferring Restricted Stockholder may sell all such Shares to the Buyer on the terms and conditions Proposed Transferor as set forth in the Offer NoticeROFR Offer, then MCEL’s right of first refusal with respect to the Transfer Shares pursuant to this Article III shall cease and, subject to compliance with Article IV, the provisions Proposed Transferor may Transfer the Transfer Shares to the Proposed Purchaser within ninety (90) days following the date of Section 3.4the ROFR Offer (or if such ninetieth (90th) day is not a Business Day, then on the next succeeding Business Day), for a price and upon other terms no more favorable in the aggregate than those specified in the applicable ROFR Offer. The closing of such sale shall take place at the principal office of the Company (or such other location mutually agreeable to the relevant parties). Promptly after such Transferfollowing any Transfer pursuant to this Section 3.5, the Transferring Restricted Stockholder Proposed Transferor shall notify provide written notice to the Company, which in turn shall promptly notify all the Investors, Company and MCEL of the consummation thereof and shall furnish such evidence terms thereof. If the Proposed Transferor has not consummated the Transfer of the completion and time of completion all of the Transfer and of Shares within such ninety (90) day period, the terms thereof as Transfer Shares may reasonably not be requested Transferred by a Preferred Majority. Prior to the effectiveness of any Transfer to a Buyer hereunder, such Buyer shall have entered into a Joinder Agreement Proposed Transferor without again complying with this Article III in substantially the form attached hereto as Exhibit A, and such Buyer shall have all the rights and obligations hereunder as if such Buyer were a Restricted Stockholderits entirety. If the Transferring Restricted Stockholder’s sale Proposed Transferor determines at any time within such ninety (90) day period that the Transfer of all or any part of such Transfer Shares at a price and on terms permitted by this Article III is impractical, such Proposed Transferor may terminate all attempts to a Buyer is not consummated Transfer such Transfer Shares and recommence the procedures of this Article III in accordance with the terms of the Transaction Offer on or before sixty (60) calendar days after the latest of: (i) their entirety without waiting for the expiration of such ninety (90) day period by delivering written notice of such decision to the Company Option Period, (ii) the expiration of the Investor Option Period, (iii) the expiration of the Co-Sale Election Period set forth in Section 3.4 below, if applicable, and (iv) the satisfaction of all governmental approval or filing requirements, the Transaction Offer shall be deemed to lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be in violation of the provisions of this Agreement unless the Transferring Restricted Stockholder sends a new Offer Notice and once again complies with the provisions of this Section 3.3 with respect to such Transaction OfferCompany.

Sale to Third Party. In If the Responding Member elects not to purchase the Target Asset or is deemed not to have elected to purchase the Target Asset, or in the event that the Company and the Investors do not elect to exercise the rights to purchase of a sale under this Section 3.3 with respect 8.2.9 expressly permitted pursuant to all Section 8.2.7, the Initiating Member may, without the further consent of the Shares Responding Member or the Board Members designated by the Responding Member, cause the Company to sell the Target Asset to a Third Party on an all cash basis for an "adjusted gross purchase price" of not less than ninety five percent (95%) of the Offered Price originally proposed by the Initiating Member (subject to adjustment for development, renovation and rehabilitation costs as set forth in Section 8.2.1). In connection with a sale of the Target Asset to a Third Party pursuant to this Section 8.2.9, an agreement of sale must be entered into within six months following (i) in the case of an election not to purchase, the date of receipt by the Initiating Member of written notice from the Responding Member of such election; and (ii) in the case of a deemed election not to purchase, the end of the Response Period; and (iii) in the case of a sale to a Third Party pursuant to Section 8.2.7, the original Target Asset Closing Date and the closing must occur within 120 days after the execution of such written contract. For purposes of this Section 8.2.9, "adjusted gross purchase price" shall mean the gross purchase price for the Property to be soldpaid by a Third Party purchaser (prior to calculation of prorations, prepayment fees, and the like) reduced only by any termination fees under the Lease of the Target Asset which the Company has agreed to assume as a result of such sale. For example, if the Offered Price for a Target Asset is $10,000,000, the Transferring Restricted Stockholder gross purchase price for the sale of the Target Asset to a Third Party is $9,800,000 and in connection with the sale of the Target Asset to such Third Party, the Company has agreed to assume a termination fee under the Lease of the Target Asset on the Target Asset Closing Date equal to $250,000, the "adjusted gross purchase price" shall be $9,550,000, i.e. 95.5% of the Offered Price, then the Initiating Member may cause Company to sell all the Target Asset without the further consent of the Responding Member. Alternatively, if the Company agrees to assume a lease termination fee of $400,000, the "adjusted gross purchase price" would be $9,400,000, i.e. 94% of the Offered Price, and the consent of the Responding Member to such Shares sale would be required. If the Company fails to sell the Buyer on Target Asset pursuant to the terms and conditions set forth in above for any reason other than the Offer Notice, subject to the provisions of Section 3.4. Promptly after such Transfer, the Transferring Restricted Stockholder shall notify the Company, which in turn shall promptly notify all the Investors, willful act or omission of the consummation thereof and Responding Member, neither Member shall furnish such evidence of the completion and time of completion of the Transfer and of the terms thereof as may reasonably be requested by a Preferred Majority. Prior entitled to the effectiveness of any Transfer to a Buyer hereunder, such Buyer shall have entered into a Joinder Agreement in substantially the form attached hereto as Exhibit A, and such Buyer shall have all the rights and obligations hereunder as if such Buyer were a Restricted Stockholder. If the Transferring Restricted Stockholder’s sale to a Buyer is not consummated in accordance with the terms of the Transaction Offer on or before sixty (60) calendar days after the latest of: (i) the expiration of require the Company Option Period, (ii) to sell the expiration of the Investor Option Period, (iii) the expiration of the Co-Sale Election Period set forth in Section 3.4 below, if applicable, and (iv) the satisfaction of all governmental approval or filing requirements, the Transaction Offer shall be deemed to lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be in violation of the provisions of this Agreement unless the Transferring Restricted Stockholder sends a new Offer Notice and once Target Asset without again complies complying with the provisions of this Section 3.3 with respect to such Transaction Offer8.2.