Common use of Second Offer Clause in Contracts

Second Offer. Notwithstanding anything in this Agreement to the contrary, if any Non-Transferring Member(s) have validly and timely delivered an Election Notice pursuant to Section 3.11 and the 180 day period following the applicable ROFO Outside Date Period has not expired, then the Company, its Subsidiaries and the Members shall not consummate the proposed Sale Event if that Election Notice offers to purchase all of the Selling Member’s Units and if the Offer Price thereunder equals or exceeds the consideration that would be received by the Selling Member upon consummation of the proposed Sale Event. In such event, the terms and conditions of this Section 3.12(c) shall apply. (i) Each Non-Transferring Member that delivered an Election Notice or Prevailing Election Notice, as the case may be, shall have the right, by delivery of written notice to the Selling Member within 20 days after delivery of the Company’s written notice of Best Price determination, to irrevocably elect to purchase all of the Selling Member’s Units for the cash purchase price per Unit offered in its Election Notice or Prevailing Election Notice and pursuant to the Purchase and Sale Agreement (such written notice from the Non-Transferring Member, a “Second Offer”). The Selling Member shall, within 20 days of its receipt of any Second Offer, notify the Non-Transferring Member(s) as to whether the Selling Member desires to accept or reject its Second Offer. (ii) If no Second Offer is timely delivered to the Selling Member pursuant to Section 3.12(c)(i), then the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price in accordance with the terms of Section 3.12(b). (iii) If (x) one or more Second Offers is timely delivered to the Selling Member pursuant to Section 3.12(c)(i) and (y) the Selling Member rejects all Second Offers, then the Selling Member shall again be required to comply with the terms of Section 3.11 before consummating any proposed Sale Event. (iv) If (x) the Non-Transferring Member(s) timely delivers a Second Offer to the Selling Member pursuant to Section 3.12(c)(i) and the Selling Member accepts such Second Offer, then the Selling Member and Non-Transferring Member(s) shall execute and deliver a Purchase and Sale Agreement within 20 days thereafter to effect the sale of all of the Selling Member’s Units to the Non-Transferring Member(s) and, upon the execution and delivery thereof by the parties thereto, the Non-Transferring Member(s) shall pay the cash purchase price payable to the Selling Member. If the Non-Transferring Member(s) do not timely pay the Offer Price to the Selling Member pursuant to the executed Purchase and Sale Agreement between the Selling Member and the Non-Transferring Member(s), then that Non-Transferring Member(s) shall be deemed to be Defaulting Member(s), which Defaulting Member(s) and their Affiliates shall have no further rights under this Section 3.12(c) and shall no longer have the right to require that another Member comply with the terms of Section 3.11 as a condition precedent to exercising the right to give a Sale Notice under this Section 3.12, and in addition to all other remedies the Selling Member may have under this Agreement, at law, or in equity, the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price.

Second Offer. Notwithstanding anything in this Agreement to the contraryforegoing, if any NonTenant has delivered a Counteroffer to Landlord that Landlord has rejected and Landlord thereafter desires to sell the Fee Interest to a third party on terms and conditions materially more favorable to a third-Transferring Member(s) have validly and timely delivered an Election Notice pursuant to Section 3.11 and the 180 day period following the applicable ROFO Outside Date Period has not expired, then the Company, its Subsidiaries and the Members shall not consummate the proposed Sale Event if that Election Notice offers to purchase all of the Selling Member’s Units and if party purchaser than the Offer Price thereunder equals or exceeds Terms set forth in the consideration that would be received by Counteroffer, Landlord shall, prior to entering into a binding agreement to sell the Selling Member upon consummation of Fee Interest to such third party, offer to sell the proposed Sale Event. In such event, Fee Interest to Tenant on the terms and conditions of this Section 3.12(cproposed (or to be proposed) shall apply. to such third-party purchaser (i) Each Non-Transferring Member that delivered an Election Notice or Prevailing Election Notice, as a "Second Offer"). Landlord's good faith and reasonable judgment regarding the case may be, shall have the right, by delivery of written notice to the Selling Member within 20 days after delivery favorability of the Company’s written notice of Best Price determinationOffer Terms offered to a third party versus the Offer Terms contained in any Counteroffer shall be determinative (i.e., to irrevocably elect to purchase all of whether or not such terms are more or less favorable than those set forth in the Selling Member’s Units for the cash purchase price per Unit offered in its Election Notice or Prevailing Election Notice and pursuant to the Purchase and Sale Agreement (such written notice from the Non-Transferring Member, a “Second Offer”Counteroffer). The Selling Member shall, within 20 days of its receipt of any Second Offer, notify the Non-Transferring Member(s) as to whether the Selling Member desires to accept or reject its Second Offer. (ii) If no Second Offer Landlord is timely delivered to the Selling Member pursuant to Section 3.12(c)(i), then the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price in accordance with the terms of Section 3.12(b). (iii) If (x) one or more Second Offers is timely delivered to the Selling Member pursuant to Section 3.12(c)(i) and (y) the Selling Member rejects all Second Offers, then the Selling Member shall again be required to comply with the terms of Section 3.11 before consummating any proposed Sale Event. (iv) If (x) the Non-Transferring Member(s) timely delivers deliver a Second Offer to Tenant, then Landlord shall send a notice to Tenant setting forth the Selling Member pursuant to Section 3.12(c)(iOffer Terms (the "Second Offer Notice") and the Selling Member accepts Tenant shall, by written notice to Landlord either accept or reject such Second Offer, then Offer within five (5) business days of Tenant's receipt thereof. Tenant's failure to timely accept the Selling Member and Non-Transferring Member(s) shall execute and deliver a Purchase and Sale Agreement within 20 days thereafter to effect the sale of all of the Selling Member’s Units to the Non-Transferring Member(s) and, upon the execution and delivery thereof by the parties thereto, the Non-Transferring Member(s) shall pay the cash purchase price payable to the Selling Member. If the Non-Transferring Member(s) do not timely pay the Second Offer Price to the Selling Member pursuant to the executed Purchase and Sale Agreement between the Selling Member and the Non-Transferring Member(s), then that Non-Transferring Member(s) shall be deemed to be Defaulting Member(sa rejection of the Second Offer. Upon Tenant's rejection (or deemed rejection) of any Offer Notice (without an accompanying Counteroffer) or, if applicable, Tenant's rejection of any Second Offer Notice, this Section 25 will immediately be null and void and of no further force or effect and whether or not a closing with a third party occurs thereafter for any reason. For avoidance of doubt, the obligations of Landlord and the rights of Tenant set forth in this Section 25 are personal to the original Landlord (and its transferee pursuant to Section 26(u), which Defaulting Member(s) and their Affiliates shall have no further rights under this Section 3.12(c) the original Tenant named herein and Affiliate or Permitted Transferee of such Landlord and Tenant, and shall no longer have the right not be applicable to require that another Member comply with the terms any successor-in-interest to Landlord or Tenant (other than an Affiliate or Permitted Transferee of Section 3.11 as a condition precedent such party succeeding directly to exercising the right to give a Sale Notice under this Section 3.12, and in addition to all other remedies the Selling Member may have under this Agreement, at law, or in equity, the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Pricesuch party's interest herein).

Second Offer. Notwithstanding anything in this Agreement to If the contrary, if any Non-Transferring Member(s) have validly and timely delivered an Election Notice pursuant to Section 3.11 and the 180 day period following the applicable ROFO Outside Date Period has Company does not expired, then the Company, its Subsidiaries and the Members shall not consummate the proposed Sale Event if that Election Notice offers elect to purchase all of the Selling Member’s Units Offered ------------ Stock within the First Offer Period, the Company shall then transmit a copy of the Transfer Notice to the other Shareholder together with a statement that it has elected not to purchase the Offered Stock, and if the Offer Price thereunder equals or exceeds the consideration that would Offered Stock shall thereby be received offered by the Selling Member Shareholder to the other Shareholder (the "Principal Shareholder") for a period of twenty (20) days from the transmittal --------------------- of such Transfer Notice to the Principal Shareholder (the "Second Offer ------------ Period"), for the same Offered Price and upon consummation the same terms and conditions as ------ set forth in the Transfer Notice. The Principal Shareholder (and/or his, her or its assigns) shall be initially entitled to elect to purchase such pro rata portion of the Offered Stock as the number of shares of Stock (on an as- converted basis) owned by such Principal Shareholder on the date of the commencement of the First Offer Period bears to the number of shares of Stock (on an as-converted basis) owned by all Principal Shareholders on such date. If the Principal Shareholder does not elect, by notice in writing given to the Selling Shareholder within the Second Offer Period, to purchase all of the Offered Stock to which he or it is entitled, or if there is no such Electing Shareholder, then the Selling Shareholder shall be free to dispose of the Offered Stock within ninety (90) days of the end of the Second Offer Period (or if no Second Offer Period is required, then within ninety (90) days of the end of the First Offer Period) to the original proposed Sale Eventtransferee, at a price not lower than the Offered Price, and upon the terms stipulated in the Transfer Notice in all material respects. In However, as a condition to the effectiveness of such eventtransfer, said transferee shall thereupon become a party to this Agreement as a Shareholder and, pursuant to Section 4.15, shall confirm such fact by executing a counterpart of this Agreement. If such Offered Stock is not so disposed of by the Selling Shareholder within such ninety (90) day period, the Selling Shareholder shall continue to hold such Stock subject to all of the terms and conditions of this Section 3.12(c) shall apply. (i) Each Non-Transferring Member that delivered an Election Notice or Prevailing Election Notice, as Agreement and may not sell the case may be, shall have the right, by delivery of written notice to the Selling Member within 20 days after delivery of the Company’s written notice of Best Price determination, to irrevocably elect to purchase Stock without again complying with all of the Selling Member’s Units for the cash purchase price per Unit offered in its Election Notice or Prevailing Election Notice and pursuant to the Purchase and Sale Agreement (such written notice from the Non-Transferring Member, a “Second Offer”). The Selling Member shall, within 20 days of its receipt of any Second Offer, notify the Non-Transferring Member(s) as to whether the Selling Member desires to accept or reject its Second Offerprovisions hereof. (ii) If no Second Offer is timely delivered to the Selling Member pursuant to Section 3.12(c)(i), then the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price in accordance with the terms of Section 3.12(b). (iii) If (x) one or more Second Offers is timely delivered to the Selling Member pursuant to Section 3.12(c)(i) and (y) the Selling Member rejects all Second Offers, then the Selling Member shall again be required to comply with the terms of Section 3.11 before consummating any proposed Sale Event. (iv) If (x) the Non-Transferring Member(s) timely delivers a Second Offer to the Selling Member pursuant to Section 3.12(c)(i) and the Selling Member accepts such Second Offer, then the Selling Member and Non-Transferring Member(s) shall execute and deliver a Purchase and Sale Agreement within 20 days thereafter to effect the sale of all of the Selling Member’s Units to the Non-Transferring Member(s) and, upon the execution and delivery thereof by the parties thereto, the Non-Transferring Member(s) shall pay the cash purchase price payable to the Selling Member. If the Non-Transferring Member(s) do not timely pay the Offer Price to the Selling Member pursuant to the executed Purchase and Sale Agreement between the Selling Member and the Non-Transferring Member(s), then that Non-Transferring Member(s) shall be deemed to be Defaulting Member(s), which Defaulting Member(s) and their Affiliates shall have no further rights under this Section 3.12(c) and shall no longer have the right to require that another Member comply with the terms of Section 3.11 as a condition precedent to exercising the right to give a Sale Notice under this Section 3.12, and in addition to all other remedies the Selling Member may have under this Agreement, at law, or in equity, the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price.

Second Offer. Notwithstanding anything in this Agreement to If the contrary, if any Non-Transferring Member(s) have validly and timely delivered an Election Notice pursuant to Section 3.11 and the 180 day period following the applicable ROFO Outside Date Period has Company does not expired, then the Company, its Subsidiaries and the Members shall not consummate the proposed Sale Event if that Election Notice offers elect to purchase all of the Selling Member’s Units Offered Stock within the First Offer Period, the Company shall then transmit a copy of the Transfer Notice to the other Shareholder together with a statement that it has elected not to purchase the Offered Stock, and if the Offer Price thereunder equals or exceeds the consideration that would Offered Stock shall thereby be received offered by the Selling Member Shareholder to the other Shareholder (the "Principal Shareholder") for a period of twenty (20) days from the transmittal of such Transfer Notice to the Principal Shareholder (the "Second Offer Period"), for the same Offered Price and upon consummation the same terms and conditions as set forth in the Transfer Notice. The Principal Shareholder (and/or his, her or its assigns) shall be initially entitled to elect to purchase such pro rata portion of the Offered Stock as the number of shares of Stock (on an as-converted basis) owned by such Principal Shareholder on the date of the commencement of the First Offer Period bears to the number of shares of Stock (on an as-converted basis) owned by all Principal Shareholders on such date. If the Principal Shareholder does not elect, by notice in writing given to the Selling Shareholder within the Second Offer Period, to purchase all of the Offered Stock to which he or it is entitled, or if there is no such Electing Shareholder, then the Selling Shareholder shall be free to dispose of the Offered Stock within ninety (90) days of the end of the Second Offer Period (or if no Second Offer Period is required, then within ninety (90) days of the end of the First Offer Period) to the original proposed Sale Eventtransferee, at a price not lower than the Offered Price, and upon the terms stipulated in the Transfer Notice in all material respects. In However, as a condition to the effectiveness of such eventtransfer, said transferee shall thereupon become a party to this Agreement as a Shareholder and, pursuant to Section 4.15, shall confirm such fact by executing a counterpart of this Agreement. If such Offered Stock is not so disposed of by the Selling Shareholder within such ninety (90) day period, the Selling Shareholder shall continue to hold such Stock subject to all of the terms and conditions of this Section 3.12(c) shall apply. (i) Each Non-Transferring Member that delivered an Election Notice or Prevailing Election Notice, as Agreement and may not sell the case may be, shall have the right, by delivery of written notice to the Selling Member within 20 days after delivery of the Company’s written notice of Best Price determination, to irrevocably elect to purchase Stock without again complying with all of the Selling Member’s Units for the cash purchase price per Unit offered in its Election Notice or Prevailing Election Notice and pursuant to the Purchase and Sale Agreement (such written notice from the Non-Transferring Member, a “Second Offer”). The Selling Member shall, within 20 days of its receipt of any Second Offer, notify the Non-Transferring Member(s) as to whether the Selling Member desires to accept or reject its Second Offerprovisions hereof. (ii) If no Second Offer is timely delivered to the Selling Member pursuant to Section 3.12(c)(i), then the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price in accordance with the terms of Section 3.12(b). (iii) If (x) one or more Second Offers is timely delivered to the Selling Member pursuant to Section 3.12(c)(i) and (y) the Selling Member rejects all Second Offers, then the Selling Member shall again be required to comply with the terms of Section 3.11 before consummating any proposed Sale Event. (iv) If (x) the Non-Transferring Member(s) timely delivers a Second Offer to the Selling Member pursuant to Section 3.12(c)(i) and the Selling Member accepts such Second Offer, then the Selling Member and Non-Transferring Member(s) shall execute and deliver a Purchase and Sale Agreement within 20 days thereafter to effect the sale of all of the Selling Member’s Units to the Non-Transferring Member(s) and, upon the execution and delivery thereof by the parties thereto, the Non-Transferring Member(s) shall pay the cash purchase price payable to the Selling Member. If the Non-Transferring Member(s) do not timely pay the Offer Price to the Selling Member pursuant to the executed Purchase and Sale Agreement between the Selling Member and the Non-Transferring Member(s), then that Non-Transferring Member(s) shall be deemed to be Defaulting Member(s), which Defaulting Member(s) and their Affiliates shall have no further rights under this Section 3.12(c) and shall no longer have the right to require that another Member comply with the terms of Section 3.11 as a condition precedent to exercising the right to give a Sale Notice under this Section 3.12, and in addition to all other remedies the Selling Member may have under this Agreement, at law, or in equity, the Selling Member may cause the Company to consummate the Sale Event with the Purchaser that has provided the Best Price.