At Closing. Seller shall execute, acknowledge and deliver to Buyer for recording, a separate right of first offer agreement, prepared by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"): (i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement. (ii) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer Parcel, Seller shall deliver to Buyer written notice (the "First Offer Notice") setting forth the price and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. Buyer shall have fifteen (15) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice. (iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement. (iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property. (v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assigns.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (American Real Estate Investment Corp)
At Closing. Seller Buyer shall execute, acknowledge pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to Buyer for recording, a separate right of first offer agreement, prepared consummate the transactions contemplated by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(iiA) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer ParcelAt Closing, Seller shall deliver to Buyer written notice the following:
(a) Intentionally Deleted.
(b) A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer's obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an estoppel certificate from each tenant under a Space Lease who occupies more than eight thousand (8,000) square feet (hereinafter "Anchor Tenant"), as well as from seventy (70%) percent of the tenants occupying less than eight thousand (8,000) square feet (each such tenant hereinafter referred to as a "Non-Anchor Tenant") (collectively such Non-Anchor Tenants hereinafter referred to as the "Minimum Threshold"), each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller's estoppel in the form of Exhibit 10 for any tenant (other than an Anchor Tenant and so long as the Minimum Threshold is met) not delivering an estoppel as required to achieve one hundred percent (100%) estoppel delivery for the Property. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to accept Seller's estoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor Tenants at the Property), which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer's sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller's knowledge, the facts in said estoppel remain true in all material respects as of the Closing Date.
(d) It shall be a condition precedent to Buyer's obligation to remit the Purchase Price to the Title Company, on the Closing Date and effectuate the transaction contemplated herein that on or before the Closing Date, Buyer shall have received an estoppel certificate from the respective ground lessor's under the Ground Lease A and Ground Lease B. Seller will request that the estoppel be in the form attached here as EXHIBIT 16, however Seller shall only be required to deliver an estoppel in the form and content as provided for in each of the respective Ground Leases.
(e) It shall be a condition precedent to Buyer's obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the warranty and/or guaranty, with all fees and costs of such assignment (and inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being paid at the sole cost and expense of Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the parties hereto.
(B) At Closing, Seller and Buyer shall each execute and deliver to the other the following:
(a) An Assignment and Assumption Agreement for the Space Leases in the form of EXHIBIT 4 attached hereto.
(b) An Assignment and Assumption Agreement for the Service Contracts, in the form of EXHIBIT 5 attached hereto.
(c) Notices to tenants, in the form attached hereto as Exhibit 14, and made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer.
(d) To the extent at closing there occurs a vacancy in a space currently leased under a Space Lease then Seller shall master lease same pursuant to the terms hereof (the "First Offer NoticeNew Vacant Space") setting forth a Master Lease for a term expiring on the price and other material terms on which earlier of (i) twelve (12) months or (ii) such date as Seller would be willing to sell leases the Right of First Offer Parcel. Buyer shall have fifteen (15) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant New Vacant Space However subject to the terms of the First Offer Notice. If Buyer elects immediately following sentence, notwithstanding the rent rate per square foot set forth in the Rent Roll for the New Vacant Space in the event Seller leases a portion of said vacant space at a per square foot rate that is greater than provided for on the Rent Roll, then it shall have the right to purchase lease other New Vacant Space at a lesser rate per square foot than as shown on the Right of First Offer Parcel pursuant Rent Roll up to the terms excess rent so achieved. Lease-up of the First Offer Notice, Buyer Property shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period in no event yield an average Fixed Rent and closing Reimbursements amount that is less than the sum of Fixed Rent and Reimbursements per the Rent Roll. The Master Lease shall be held within 90 days after in the date form of the Acceptance Notice, whereupon Seller Exhibit 8 attached hereto and shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold incorporate that portion of the Right Property vacant space for which a bona fide Space Lease(s) had been executed but have become vacant between the date hereof and the date of First Offer Parcel which was Closing with the subject "Tenant Conditions" (as hereinafter defined) having been satisfied. For the purposes hereof, the Tenant Conditions for any Property vacant space gross leasable area are hereby defined as (i) a signed lease, and (ii) with Tenant either paying full rent and reimbursements or the all conditions precedent to Rent Commencement Date (as defined in such tenant lease) shall have occurred or been satisfied and (iii) with all the leasing commissions and tenant improvement allowances either paid for by Seller or credited to Buyer and (iv) with a certificate of occupancy or its equivalent occupancy permit issued by the First Offer Notice within six local governmental authorities, for such tenant's respective demised premises (6v) months after Tenant shall have open and operated for its permitted use for at lease one day (iv) and Seller obtains an estoppel from Tenant that the giving of delivery conditions (i.e. Landlord Work) has been completed or Seller shall give a Seller estoppel to that effect. If a bona fide Space Lease for the First Offer Notice for New Vacant Space or any portion thereof with the Tenant Conditions satisfied is executed prior to the Closing Date, the parties shall either not enter into a purchase price Seller Lease or the applicable provisions thereof (including but not less than 97% of limited to the purchase price specified in the First Offer Notice, Seller may not again seek annual base rent) shall be adjusted accordingly to sell or convey or agree to sell or convey such reflect that portion of the Right of First Offer Parcel which was New Vacant Space that is leased and thus released and not covered by the subject Master Lease. It is the intent of the First Offer Notice without again complying with parties that the terms Master Lease shall be for the New Vacant Space, if any, only and not for the Property vacant space. For the purposes hereof, the "Excluded Space" is hereby defined as Retail K and Retail L. However, if Seller leases all or a portion of the Right of First Offer AgreementRetail K, it may substitute same for other New Vacant Space to satisfy its objections hereunder. Seller acknowledges and agrees that it shall be responsible for placing all vacant space except Retail L (Retail L is subject to Section 11.6) in Vanilla Box condition however, it may be satisfied by second generation space in "as is" condition such that a tenant has already occupied same, and needn't be in "new" condition.
(ive) To prevent Seller from defeating An Assignment and Assumption of Ground Lease A and Ground Lease B in the rights form of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other propertyExhibit 17.
(vf) The rights An Assignment and Assumption of obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to under the benefit of Buyer and Buyer's successors and assignsTallahassee Land Agreement.
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
At Closing. Seller Buyer shall execute, acknowledge pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to Buyer for recording, a separate right of first offer agreement, prepared consummate the transactions contemplated by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(iiA) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer ParcelAt Closing, Seller shall deliver to Buyer written notice the following:
(a) A Special Warranty Deed in favor of Buyer for the "First Offer Notice"Real Estate in proper recordable form and duly executed and acknowledged by Seller.
(b) setting forth A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer’s obligation to remit the price remainder of the Purchase Price to the Title Company on the Closing Date and other material terms effectuate the transaction contemplated herein that on which Seller would be willing or before the third (3rd) business day prior to sell the Right of First Offer Parcel. Closing Date, Buyer shall have fifteen received an estoppel certificate from each tenant under a Space Lease each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller’s estoppel in the form of Exhibit 10. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (15provided, however, Buyer shall not be obligated to accept Seller’s estoppel, which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer’s sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from receipt the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller’s knowledge, the facts in said estoppel remain true in all material respects as of the First Offer Closing Date.
(d) Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, association, reciprocal easement, or like agreement affecting the Property (hereinafter “REA estoppel”). Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer, Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period, Buyer may request the REA estoppel from the REA parties directly. In the event Seller and Buyer are unable to obtain these estoppels despite Seller’s commercially reasonable good faith efforts prior to the expiration of the Due Diligence Period, Seller may deliver and Buyer may accept (although nothing contained herein shall require Buyer to accept), its own estoppel in the form attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such “REA” estoppel).
(e) It shall be a condition precedent to Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the warranty and/or guaranty, with all fees and costs of such assignment (and inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being paid at the sole cost and expense of Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the parties hereto.
(B) At Closing, Seller and Buyer shall each execute and deliver to the other the following:
(a) An Assignment and Assumption Agreement for the Space Leases in the form of Exhibit 4 attached hereto.
(b) An Assignment and Assumption Agreement for the Service Contracts, in the form of Exhibit 5 attached hereto.
(c) Notices to tenants, in the form attached hereto as Exhibit 14, and made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer.
(d) Notice to OEA parties in which to elect to purchase form required by the Right of First Offer Parcel OEA.
(e) To the extent at closing Seller has not entered into a lease for the space for 2,675 square feet vacancy noted on Exhibit 9, then Seller shall master lease same pursuant to the terms hereof (the “New Vacant Space”) a Master Lease for a term expiring on the earlier of (i) twelve (12) months or (ii) such date as Seller leases the Vacant Space. Lease-up of the First Offer NoticeProperty shall in no event yield an average Fixed Rent and Reimbursements amount that is less than the sum of Fixed Rent and Reimbursements per the Rent Roll. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing The Master Lease shall be held within 90 days after in the date form of the Acceptance Notice, whereupon Seller Exhibit 8 attached hereto and shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold incorporate that portion of the Right Property vacant space for which a bona fide Space Lease(s) had been executed but have become vacant between the date hereof and the date of First Offer Parcel which was Closing with the subject “Tenant Conditions” (as hereinafter defined) having been satisfied. For the purposes hereof, the Tenant Conditions for any Property vacant space gross leasable area are hereby defined as (i) a signed lease, and (ii) with Tenant either paying full rent and reimbursements or the all conditions precedent to Rent Commencement Date (as defined in such tenant lease) shall have occurred or been satisfied and (iii) with all the leasing commissions and tenant improvement allowances either paid for by Seller or credited to Buyer and (iv) with a certificate of occupancy or its equivalent occupancy permit issued by the First Offer Notice within six local governmental authorities, for such tenant’s respective demised premises (6v) months after Tenant shall have open and operated for its permitted use for at lease one day (vi) and Seller obtains an estoppel from Tenant that the giving of delivery conditions (i.e. Landlord Work) has been completed or Seller shall give a Seller estoppel to that effect. If a bona fide Space Lease for the First Offer Notice for Vacant Space or any portion thereof with the Tenant Conditions satisfied is executed prior to the Closing Date, the parties shall either not enter into a purchase price Seller Lease or the applicable provisions thereof (including but not less than 97% of limited to the purchase price specified in the First Offer Notice, Seller may not again seek annual base rent) shall be adjusted accordingly to sell or convey or agree to sell or convey such reflect that portion of the Right of First Offer Parcel which was Vacant Space that is leased and thus released and not covered by the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Master Lease. Seller from defeating the rights of Buyer pursuant to this Agreement, Seller acknowledges and agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement it shall be binding upon Seller and its successors and assignsresponsible for placing all vacant space in Vanilla Box condition however, it may be satisfied by second generation space in “as is” condition such that a tenant has already occupied same, and shall inure to the benefit of Buyer and Buyer's successors and assignsneedn’t be in “new” condition.
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
At Closing. Seller shall execute, acknowledge and deliver to Buyer for recording, a separate right of first offer agreement, prepared by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during execute and deliver to Buyer an Assignment substantially in the Right form attached hereto as Exhibit B, containing a description of First Offer Term sell or convey or agree all Assets subject to sell or convey all or any assignment to Buyer, along with counterpart originals suitable for recording in each jurisdiction in which the Assets are located (suitably redacted to describe only the real property interests located in the applicable jurisdiction), conveying to Buyer the interest of Seller in the portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.Assets to be conveyed by assignment;
(ii) If Seller shall during fully execute and deliver to Buyer the Right of First Offer Term desire Transition Services Agreement;
(iii) Seller shall fully execute and deliver to sell Buyer one or convey all or part of more deeds, in the Right of First Offer Parcelform attached hereto as Exhibit E, conveying to Buyer the Surface Fee;
(iv) Seller shall deliver a certificate, signed by an authorized officer, certifying that the conditions set forth in Section 6.2 have been satisfied;
(v) Seller shall execute and deliver a FIRPTA Affidavit in the form attached hereto as Exhibit C;
(vi) Seller shall deliver to Buyer written notice or its Affiliate, EnerVest Operating. L.L.C., executed Texas Railroad Commission Forms P-4 (or an acceptable blanket transfer letter to the "First Offer Notice") setting forth RRC), and Forms T-4 if applicable, transferring the price operational responsibility for the Operated W▇▇▇▇ and other material terms on Pipelines in which Seller would be willing has the right to sell the Right of First Offer Parcel. Buyer shall have fifteen transfer such responsibility;
(15vii) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deedBuyer, sufficient at Seller’s offices, such of the Books and Records as are feasible to convey be delivered at Closing and thereafter deliver the remainder of the Books and Records to Buyer fee simple title as soon after Closing as is reasonably possible;
(viii) Seller shall execute and deliver to Buyer an appropriate B▇▇▇ of Sale for any titled trailers included in the Right of First Offer Parcel free Assets;
(ix) Seller shall execute and clear of deliver to Buyer the Side Letter Agreement; and
(x) Seller shall execute and deliver to Buyer any and all liensother instruments, restrictions documents and encumbrances, except for those subject other items reasonably necessary to which the Right of First Offer Parcel was to have been conveyed in accordance with effectuate the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other propertyas may be reasonably requested by Buyer.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assigns.
Appears in 1 contract
At Closing. Seller Buyer shall execute, acknowledge pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to Buyer for recording, a separate right of first offer agreement, prepared consummate the transactions contemplated by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(iiA) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer ParcelAt Closing, Seller shall deliver to Buyer written notice the following:
(a) A special warranty deed in favor of Buyer for the "First Offer Notice"Real Estate in proper recordable form, duly executed and acknowledged by Seller.
(b) setting forth A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer's obligation to remit the price remainder of the Purchase Price to the Title Company on the Closing Date and other material terms effectuate the transaction contemplated herein that on which Seller would be willing or before the third (3rd) business day prior to sell the Right of First Offer Parcel. Closing Date, Buyer shall have fifteen received an estoppel certificate from each tenant under a Space Lease who occupies more than eight thousand (158,000) square feet (hereinafter "Anchor Tenant"), as well as from seventy (70%) percent of the tenants occupying less than eight thousand (8,000) square feet (each such tenant hereinafter referred to as a "Non-Anchor Tenant") (collectively such Non-Anchor Tenants hereinafter referred to as the "Minimum Threshold"), each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller's estoppel in the form of Exhibit 10 for any tenant (other than an Anchor Tenant and so long as the Minimum Threshold is met) not delivering an estoppel as required to achieve one hundred percent (100%) estoppel delivery for the Property. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to accept Seller's estoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor Tenants at the Property), which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer's sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from receipt the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller's knowledge, the facts in said estoppel remain true in all material respects as of the First Offer Notice Closing Date.
(d) Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, association, reciprocal easement, or like agreement affecting the Property (hereinafter "REA estoppel"). Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer, Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period, Buyer may request the REA estoppel from the REA parties directly. In the event Seller and Buyer are unable to obtain these estoppels despite Seller's commercially reasonable good faith efforts prior to the expiration of the Due Diligence Period, Seller may deliver and Buyer may accept (although nothing contained herein shall require Buyer to accept), its own estoppel in the form attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such "REA" estoppel).
(e) It shall be a condition precedent to elect Buyer's obligation to purchase remit the Right remainder of First Offer Parcel pursuant the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the warranty and/or guaranty, with all fees and costs of such assignment (and inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being paid at the sole cost and expense of Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the parties hereto.
(B) At Closing, Seller and Buyer shall each execute and deliver to the other the following:
(a) An Assignment and Assumption Agreement for the Space Leases in the form of EXHIBIT 4 attached hereto.
(b) An Assignment and Assumption Agreement for the Service Contracts, in the form of EXHIBIT 5 attached hereto.
(c) Notices to tenants, in the form attached hereto as Exhibit 14, and made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer.
(d) A Master Lease for a term expiring on the earlier of (i) twelve (12) months or (ii) such date as Seller leases the remaining vacant space to achieve 100% Lease-up of the Rent Roll. However subject to the terms of the First Offer Notice. If Buyer elects immediately following sentence, notwithstanding the rent rate per square foot set forth in the Rent Roll for the vacant space in the event Seller leases a portion of said vacant space at a per square foot rate that is greater than provided for on the Rent Roll, then it shall have the right to purchase lease other vacant space at a ▇▇▇▇▇▇ rate per square foot than as shown on the Right of First Offer Parcel pursuant Rent Roll up to the terms excess rent so achieved. Lease-up of the First Offer Notice, Buyer Property shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period in no event yield an average Fixed Rent and closing Reimbursements amount that is less than the sum of Fixed Rent and Reimbursements per the Rent Roll. The Master Lease shall be held within 90 days after in the date form of the Acceptance Notice, whereupon Seller Exhibit 8 attached hereto and shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold incorporate that portion of the Right of First Offer Parcel Property vacant space for which was the subject a bona fide Space Lease(s) has not been executed as of the First Offer Notice within six date of Closing with the "Tenant Conditions" (6as hereinafter defined) months after having been satisfied. For the giving purposes hereof, the Tenant Conditions for any Property vacant space gross leasable area are hereby defined as (i) a signed lease, and (ii) with Tenant either paying full rent and reimbursements or the all conditions precedent to Rent Commencement Date (as defined in such tenant lease) shall have occurred or been satisfied and (iii) with all the leasing commissions and tenant improvement allowances either paid for by Seller or credited to Buyer and (iv) with a certificate of occupancy or its equivalent occupancy permit issued by the First Offer Notice local governmental authorities, for such tenant's respective demised premises. If a purchase price bona fide Space Lease for the Vacant Space or any portion thereof with the Tenant Conditions satisfied is executed prior to the Closing Date, the parties shall either not less than 97% of enter into a Seller Lease or the purchase price specified in applicable provisions thereof (including but not limited to the First Offer Notice, Seller may not again seek annual base rent) shall be adjusted accordingly to sell or convey or agree to sell or convey such reflect that portion of the Right of First Offer Parcel which was Vacant Space that is leased and thus released and not covered by the subject Master Lease. It is the intent of the First Offer Notice without again complying with parties that the terms of Master Lease shall be for all Property vacant space notwithstanding the Right of First Offer Agreement.
foregoing in calculating the sums due under the Master Lease same shall be reduced by Thirty Eight Thousand and 00/100 (iv) To prevent $38,000). Seller from defeating the rights of Buyer pursuant to this Agreement, Seller acknowledges and agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement it shall be binding upon Seller and its successors and assignsresponsible for placing all vacant space in Vanilla Box condition however, it may be satisfied by second generation space in "as is" condition such that a tenant has already occupied same, and shall inure to the benefit of Buyer and Buyer's successors and assignsneedn't be in "new" condition.
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
At Closing. Seller Borrower shall executereserve from the ------------------- proceeds of the Loan and shall deposit with Lender (or such agent as Lender may designate in writing from time to time), acknowledge an amount equal to $1,588,000 (which amount is equal to the product of (i) $280 multiplied by (ii) the total number of licensed beds at each of the Properties (the "Replacement Reserve Annual -------------------------- Amount")) for the purpose of creating a reserve for Capital Expenditures to be ------ made at the Properties (said funds, together with any interest thereon and deliver to Buyer for recordingadditions thereto, a separate right and together with any Letter(s) of first offer agreementCredit delivered in lieu thereof, prepared by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement "Replacement Reserve"). Funds on deposit in the Replacement Reserve ------------------- shall be acceptable held by Lender during the Term of the Loan as security for the Obligations and shall not be made available to it Borrower or Lessee, unless and until Borrower is required to make monthly deposits into the Replacement Reserve as provided below, whereupon such funds shall be made available to Borrower to reimburse Borrower for Capital Expenditures made to the extent that its provisions are substantially Properties upon the same as those terms and conditions set forth below; . So long as, in Lender's reasonable determination Lessee performs its obligations to repair and Seller further agrees to be reasonable in granting or withholding its acceptance to maintain, and make replacements to, the right of first offer agreement), setting forth the following terms and provisions but subject Improvements in all events material respects in accordance with the Master Lease (or, in the case of any failure by Lessee to perform such obligations in all material respects, such failure is cured within thirty (30) days after notice thereof from Lender to Borrower or such longer period as may be reasonably necessary to cure same with diligence (but in no event to exceed sixty (60) days from date of such notice which period shall be subject to reasonable delays for Force Majeure) (any such failure by Lessee after the qualifications set forth in Section 21(cexpiration of such grace period, a "Lessee Repair Default")) and no Event of --------------------- Default has occurred and is continuing under this Loan Agreement (the "Right of First Offer Agreement"):
(i) Seller or any other Loan Document, Borrower shall not be required to make additional deposits into the Replacement Reserve after the Closing Date. If at any time a Lessee Repair Default shall occur or an Event of Default shall occur and be continuing, commencing on the next Payment Date and on all subsequent Payment Dates during the Right Term, Borrower shall be required to make monthly deposits in the Replacement Reserve in an amount equal to one-twelfth (1/12) of First Offer Term sell the Replacement Reserve Annual Amount. From and after the date that Borrower commences making monthly deposits into the Replacement Reserve, pursuant to the foregoing sentence, funds contained in the Replacement Reserve shall be made available solely to reimburse Borrower (or convey Lessee) for the actual bona fide out-of-pocket cost of Capital Expenditures performed during the term of the Loan and reasonably approved by Lender ("Approved Capital Expenditures"), and shall not be used by Borrower for ----------------------------- purposes for which any other Reserve is established. Upon Borrower's request for disbursement, Lender shall disburse funds from the Replacement Reserve to or agree for the account of Borrower (or Lessee), to sell reimburse Borrower (or convey Lessee) for such Approved Capital Expenditures, on the Payment Date following such request, upon satisfaction of such disbursement conditions as Lender may require in its reasonable discretion. Notwithstanding the foregoing, Borrower acknowledges and agrees that, upon the occurrence and during the continuance of an Event of Default (whether or not a Master Lease Event of Default then exists), Lender, in its sole discretion, may apply all or any portion of the Right Replacement Reserve to the cost of First Offer Parcel without first having complied with any Capital Improvements then required to be made to the requirements of the Right of First Offer Agreement.
(ii) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer Parcel, Seller shall deliver to Buyer written notice (the "First Offer Notice") setting forth the price and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. Buyer shall have fifteen (15) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant to Properties under the terms of the First Offer Notice. If Buyer elects Master Lease or to purchase the Right payment of First Offer Parcel pursuant to the terms any of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date Obligations in such order of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyerpriority as Lender may determine. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase Lender so applies all or any portion of the Right Replacement Reserve, Borrower shall repay to Lender the amount of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant funds so applied to this Agreement shall be binding upon Seller and its successors and assignsreplenish the Replacement Reserve up to the amount contained therein immediately prior to such application, and if Borrower shall inure fail to repay such amounts within five (5) days after it receives notice of such application, a further Event of Default shall exist hereunder, which Event of Default shall not be cured unless and until Borrower repays such amount or all Sub-Accounts have been fully funded from Rents for the benefit current month or prior months. Provided that Borrower is not then required to make monthly deposits into the Replacement Reserve and no Event of Buyer Default has occurred and Buyer's successors and assignsis continuing, Lender shall cause the Central Account Bank to disburse any accrued interest in the Replacement Reserve Sub-Account to Borrower promptly after the end of each calendar quarter.
Appears in 1 contract
At Closing. Seller Buyer shall execute, acknowledge pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to Buyer for recording, a separate right of first offer agreement, prepared consummate the transactions contemplated by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(iiA) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer ParcelAt Closing, Seller shall deliver to Buyer written notice the following:
(a) Intentionally Deleted.
(b) A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer’s obligation to remit the "First Offer Notice"remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) setting forth business day prior to the price and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. Closing Date, Buyer shall have fifteen received an estoppel certificate from the Space Lease Tenants operating under the trade names Marshall’s and Petco (15hereinafter “Anchor Tenant”), as well as from sixty (60%) percent of the remaining tenants (each such tenant hereinafter referred to as a “Non-Anchor Tenant”) (collectively such Non-Anchor Tenants hereinafter referred to as the “Minimum Threshold”), each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller’s estoppel in the form of Exhibit 10 for any tenant (other than an Anchor Tenant and so long as the Minimum Threshold is met) not delivering an estoppel as required to achieve one hundred percent (100%) estoppel delivery for the Property. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to accept Seller’s estoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor Tenants at the Property) , which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer’s sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from receipt the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller’s knowledge, the facts in said estoppel remain true in all material respects as of the First Offer Notice Closing Date.
(d) (d) Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, association, reciprocal easement, or like agreement affecting the Property (hereinafter “REA estoppel”). Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer. Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period. Buyer may request the REA estoppel from the REA parties directly. In the event Seller and Buyer are unable to obtain these estoppels despite Seller’s commercially reasonable good faith efforts prior to the expiration of the Due Diligence Period, Seller may deliver and Buyer may accept (although nothing contained herein shall require Buyer to accept), its own estoppel in the form attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such “REA” estoppel).
(e) It shall be a condition precedent to elect Buyer’s obligation to purchase remit the Right remainder of First Offer Parcel pursuant the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the First Offer Notice. If Buyer elects warranty and/or guaranty, with all fees and costs of such assignment (and inspection, if required) (not to purchase exceed One Thousand Dollars (S1,000.00)) being paid at the Right sole cost and expense of First Offer Parcel pursuant to Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Noticeparties hereto.
(iiiB) In the event At Closing, Seller and Buyer shall elect not each execute and deliver to purchase all or part the other the following:
(a) An Assignment and Assumption of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice membership Interests in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified Inland Western Northwoods LLC in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreementform set forth as Exhibit 8.
(ivb) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other propertyIntentionally Deleted.
(vc) The rights and obligations of Seller and Buyer pursuant Notices to this Agreement shall be binding upon Seller and its successors and assignstenants, in the form attached hereto as Exhibit 14, and shall inure made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to the benefit of Buyer and Buyer's successors and assigns.
Appears in 1 contract
Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
At Closing. Seller (i) Conopco shall execute(and shall cause the applicable Sellers to) sell, acknowledge assign, transfer and deliver to Buyer for recording, a separate right of first offer agreement, prepared by Buyer, acceptable to Seller or one or more Designated Buyers (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance designated by Buyer as such on Schedule 2.1 and delivered to Conopco no later than 30 Business Table of Contents Days after the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) date of this Agreement (or earlier if reasonably required by Conopco in order for it to comply with Applicable Law); provided, however, that Buyer shall have the "Right of First Offer Agreement"):
right, with Conopco’s consent (i) Seller which consent shall not at any time during be unreasonably withheld or delayed), to amend such Schedule up until five Business Days prior to the Right Closing Date), the Sold Shares and Assets (other than the UK Shares and the Note Shares and Assets) (the “Non-UK Shares and Assets”) free of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied Encumbrances (other than Permitted Encumbrances and Permitted IP Licenses and consistent with the requirements representations and warranties of Conopco in Article IV that relate to title to such Sold Shares and Assets), and Buyer shall (and shall cause each Designated Buyer to) purchase and accept the Right of First Offer Agreement.Non-UK Shares and Assets, as at and with effect from Closing, from the applicable Sellers, subject to the related Assumed Liabilities; and
(ii) If Seller The applicable Share Seller, through the agency of Conopco, shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer Parcelsell, Seller shall assign, transfer and deliver to the Designated UK Buyer written notice the UK Shares free of all Encumbrances (other than Permitted Encumbrances and Permitted IP Licenses and consistent with the "First Offer Notice") setting forth the price representations and other material terms on which Seller would be willing warranties of Conopco in Article IV that relate to sell the Right of First Offer Parcel. Buyer shall have fifteen (15) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right UK Shares), and the Designated UK Buyer (through the agency of First Offer Parcel free Commercial Markets, Inc.) shall purchase and clear of all liens, restrictions and encumbrances, except for those subject to which accept the Right of First Offer Parcel was to have been conveyed in accordance with UK Shares from the terms of the First Offer Notice.applicable Share Seller; and
(iii) In the event Buyer shall elect not to purchase all or part consideration of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject sale of the First Offer Notice in accordance with Non-UK Shares and Assets and the terms UK Shares by the applicable Sellers, the applicable Designated Buyers (through the agency of Commercial Markets, Inc.) shall pay to Conopco (or the First Offer Notice. If Seller has not sold that portion of applicable Sellers) an aggregate amount equal to $1,345,000,000 which represents (x) $1,000,000,000 (the Right of First Offer Parcel “Base Cash Payment”) plus (y) $345,000,000, which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified aggregate amount shall be payable at Closing in the First Offer Noticefollowing amounts and currencies: (A) $479,400,000 and (B) EUR 983,859,968, Seller may not again seek each in immediately available funds, subject to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to adjustment as provided in this Agreement shall be binding upon Seller and its successors and assigns(collectively, and shall inure to as so adjusted, the benefit of Buyer and Buyer's successors and assigns“Cash Payment”).
Appears in 1 contract
At Closing. Buyer shall retain the Warehouse Inventory Retained Amount for ultimate retention or distribution as provided in this Section 2.04(b). Seller and Buyer (with the assistance of their consultants and the participation of the Companies and their consultants, if desired) shall executeconduct a physical count of all inventory located at the warehouse locations on March 18, acknowledge 2002, with such actual physical count to be concluded at all warehouses by the Closing. If Seller and deliver to Buyer for recordingagree upon the value of the Eligible Inventory at those locations, a separate right such agreement shall constitute the "Final Warehouse Inventory Amount". If the parties cannot so agree, the parties shall agree upon one of first offer agreement, prepared by Buyer, the accounting firms commonly known as the "Big Five" or some other person or entity mutually acceptable to Seller and Buyer to resolve any such disputes between the parties as to such value (the "Arbiter"), and the Arbiter will be required to render such decision within thirty (30) days of the Arbiter's retention. In such an instance, the value as so resolved by the Arbiter shall be binding on the parties, absent manifest error, and shall constitute the "Final Warehouse Inventory Amount". In order to permit the Final Warehouse Inventory Amount to be determined, no inventory shall be moved from any warehouse location for a period of at least ten days after the Closing Date. The fees, costs, and expenses of the Arbiter shall be borne equally by Buyer and Seller. In calculating such value, the parties (and Seller agrees that if necessary, the right Arbiter) shall use the same method of first offer agreement calculation used in determining the Preliminary Warehouse Inventory Amount (i.e., all Eligible Raw Materials Inventory will be valued at seventy-five percent (75%) of the lesser of cost or fair market value, and the Eligible Finished Goods Inventory will be valued at seventy-five percent (75%) of the Companies' booked cost), and all such amounts shall be acceptable determined in accordance with GAAP. If the final Warehouse Inventory Amount exceeds the Preliminary Warehouse Inventory Amount, the Buyer shall pay the Seller within five business days of such determination such difference as a purchase price adjustment, and further shall pay the Seller the entire amount of the Warehouse Inventory Retained Amount, in immediately available funds, and if the Preliminary Warehouse Inventory Amount exceeds the Final Warehouse Inventory Amount, Buyer shall be entitled to it retain the Warehouse Inventory Retained Amount equal to such amount as a purchase price adjustment and shall pay the extent that its provisions are substantially the same as those set forth below; and balance thereof (if any) to Seller further agrees to be reasonable within five days of such determination in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) immediately available funds. Notwithstanding any other provision of this Agreement (to the "Right of First Offer Agreement"):
(i) contrary, Buyer's recourse in such instance shall be solely and exclusively to the Warehouse Inventory Retained Amount, and Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(ii) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer Parcel, Seller shall deliver have no affirmative liability to Buyer written notice (the "First Offer Notice") setting forth the price and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. Buyer shall have fifteen (15) days from receipt of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Notice.
(iii) In the event Buyer shall elect not to purchase all or part of that the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell difference believes the property which was Preliminary Warehouse Inventory Amount and the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer AgreementFinal Warehouse Inventory Amount exceeds $50,000.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assigns.
Appears in 1 contract
At Closing. Seller Buyer shall execute, acknowledge pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to Buyer for recording, a separate right of first offer agreement, prepared consummate the transactions contemplated by Buyer, acceptable to Seller (and Seller agrees that the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
(i) Seller shall not at any time during the Right of First Offer Term sell or convey or agree to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
(iiA) If Seller shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer ParcelAt Closing, Seller shall deliver to Buyer written notice the following:
(a) A special warranty deed in favor of Buyer for the "First Offer Notice"Real Estate in proper recordable form, duly executed and acknowledged by Seller.
(b) setting forth A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer's obligation to remit the price remainder of the Purchase Price to the Title Company on the Closing Date and other material terms effectuate the transaction contemplated herein that on which Seller would be willing or before the third (3rd) business day prior to sell the Right of First Offer Parcel. Closing Date, Buyer shall have fifteen received an estoppel certificate from each tenant under a Space Lease who occupies more than eight thousand (158,000) days square feet (hereinafter "Anchor Tenant"), as well as from receipt seventy (70%) percent of the First Offer Notice in which tenants occupying less than eight thousand (8,000) square feet (each such tenant hereinafter referred to elect as a "Non-Anchor Tenant") (collectively such Non-Anchor Tenants hereinafter referred to purchase as the Right of First Offer Parcel pursuant "Minimum Threshold"), each such estoppel to be dated not more than 30 days prior to the terms Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller's estoppel in the form of Exhibit 10 for any tenant (other than an Anchor Tenant and so long as the First Offer NoticeMinimum Threshold is met) not delivering an estoppel as required to achieve one hundred percent (100%) estoppel delivery for the Property. . If Buyer elects Seller is unable to purchase the Right of First Offer Parcel pursuant obtain any such required estoppel from a tenant prior to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closingClosing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to Buyer accept Seller's estoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor Tenants at the Property), which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer's sole right shall be to terminate this Agreement and to obtain a special warranty deed, sufficient to convey to Buyer fee simple title refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Right Closing Date, in lieu of First Offer Parcel free and clear requiring Seller to obtain a new estoppel from the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller's knowledge, the facts in said estoppel remain true in all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms material respects as of the First Offer NoticeClosing Date.
(iiid) Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, ASSOCIATION, reciprocal easement, or like agreement affecting the Property (hereinafter "REA estoppel"). Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer, Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period, Buyer may request the REA estoppel from the REA parties directly. In the event Seller and Buyer shall elect not are unable to purchase all or part obtain these estoppels despite Seller's commercially reasonable good faith efforts prior to the expiration of the Right of First Offer Parcel pursuant to a First Offer NoticeDue Diligence Period, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six deliver and Buyer may accept (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified although nothing contained herein shall require Buyer to accept), its own estoppel in the First Offer Noticeform attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon relieved from responsibility under any Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assignsestoppel it delivered regarding all matters confirmed by such "REA" estoppel).
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Sources: Agreement of Sale (Inland Western Retail Real Estate Trust Inc)
At Closing. Seller Landlord and Tenant shall executeenter into a Right of First Refusal Agreement and a memorandum thereof which shall be recorded. The Right of First Refusal Agreement shall provide that in the event Tenant desires to sell the Premises (by cash, acknowledge and deliver mortgage, or land contract), then prior to Buyer for recordingconsummating any such sale, a separate right of first Tenant shall offer agreement, prepared by Buyer, acceptable to Seller (and Seller agrees that Landlord the right of first offer agreement shall be acceptable to it to acquire the extent that its provisions are substantially Premises on the same terms and conditions as those set forth below; Tenant will sell the Premises to a third party. Landlord shall have ten (10) days after Landlord has received from Tenant a copy of Tenant’s written offer to sell (or a purchaser has offered to purchase from Tenant) to exercise its option to purchase the Premises, on the same terms and Seller further agrees conditions as have been offered by or to be reasonable in granting or withholding its acceptance Tenant, by giving Tenant written notice of the same. If Landlord fails to exercise the right of first offer agreement), setting forth to purchase the following Premises on the terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "offer, then Landlord’s Right of First Offer Agreement"):
(i) Seller Refusal shall not at any time during be void and of no further effect if the sale of the Premises is closed on the same terms and conditions presented to Landlord. In the event Landlord accepts the offer, Landlord and Tenant shall sign an agreement to memorialize the sale of the Premises to Landlord based upon the offer, and proceed with the purchase and sale of the Premises in accordance with the terms the offer. As set forth herein, Landlord’s Right of First Offer Term sell or convey or agree Refusal shall only apply to sell or convey all or any portion the sale of the Premises by Tenant to a third party (and shall be binding upon a subsequent purchaser if it is not a third party sale) and not a partial lease of the Premises or a refinancing of the Premises. If Landlord fails to exercise its Right of First Offer Parcel without first having complied with Refusal timely, as set herein, but the requirements sale of the Premises fails to close between the Tenant and third party on the terms set forth in the offer presented to Landlord, then Landlord’s Right of First Offer Agreement.
(ii) If Seller Refusal shall during the Right of First Offer Term desire to sell or convey all or part of the Right of First Offer Parcel, Seller shall deliver to Buyer written notice (the "First Offer Notice") setting forth the price be renewed and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. Buyer Landlord shall have fifteen (15) days from receipt of the First Offer Notice in which to elect right to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice. If Buyer elects to purchase the Right of First Offer Parcel pursuant to the terms of the First Offer Notice, Buyer shall give to Seller written notice thereof ("Acceptance Notice") within said fifteen (15) day period and closing shall be held within 90 days after the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed Premises in accordance with the terms of the First Offer Notice.
(iii) In Right of Refusal Agreement as set forth in this paragraph. If Tenant desires to lease the event Buyer shall elect not to purchase all or part of entire Premises, the Right of First Offer Parcel pursuant Refusal Agreement shall provide that Tenant shall deliver written notice thereof (a “Leasing Notice”) to a First Offer Landlord, and Landlord shall have the right to acquire the Premises. If Landlord delivers written notice to Tenant of Landlord’s desire to acquire the Premises within five (5) business days after the delivery of the Tenant Leasing Notice, Seller may thereafter sell then Tenant shall not enter into a lease for the property which was Premises for a period of fifteen (15) days while Landlord and Tenant attempt in good faith to negotiate a purchase price for the subject sale of the First Offer Notice Premises to Landlord. In the event Landlord and Tenant reach an agreement on the purchase price, then within thirty (30) days thereafter Landlord and Tenant shall enter into a written agreement of sale containing customary provisions for such purpose, and thereafter Landlord and Tenant shall proceed with the purchase and sale of the Premises in accordance with the terms of the First Offer Noticesuch agreement. If Seller has despite using good faith efforts, Landlord and Tenant do not sold that portion of reach an agreement for the purchase price within the fifteen (15) day period, Tenant may proceed to lease the Premises and Landlord shall have no further right to purchase the Premises with respect to the proposed lease provided the Premises is in fact leased by Tenant within one (1) year thereafter. The Right of First Offer Parcel which was Refusal Agreement shall further provide that if the subject of Premises is not so leased within the First Offer Notice within six one (61) months after year period and thereafter Tenant desires to lease the giving of Premises, it shall re-offer Landlord the First Offer Notice for a right to purchase price not less than 97% of the purchase price specified Premises in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying accordance with the terms of the Right of First Offer Refusal Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assigns.
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At Closing. Seller Buyer shall execute, acknowledge and deliver to Buyer for recording, a separate right of first offer agreement, prepared by Buyer, acceptable to Seller retain Five Million Dollars (and Seller agrees that $5,000,000) (the right of first offer agreement shall be acceptable to it to the extent that its provisions are substantially the same as those set forth below; and Seller further agrees “Supply Holdback Amount:) to be reasonable in granting or withholding its acceptance to the right of first offer agreement), setting forth the following terms and provisions but subject in all events to the qualifications set forth in Section 21(c) of this Agreement (the "Right of First Offer Agreement"):
held by Buyer until such time as (i) Seller shall not at any time during a supplemental NDA has been approved by the Right of First Offer Term sell FDA authorizing Sigma A▇▇▇▇▇▇ or convey or agree Buyer to sell or convey all or any portion of the Right of First Offer Parcel without first having complied with the requirements of the Right of First Offer Agreement.
manufacture Nipent®; and (ii) If Seller shall during the Right of First Offer Term desire a supply agreement on commercially reasonable terms (including commercially reasonable terms with respect to sell or convey all or part of the Right of First Offer Parcel, Seller shall deliver quality) is offered by Sigma A▇▇▇▇▇▇ to Buyer written notice with respect to such purified pentostatin (the "First Offer Notice"it being agreed that Buyer shall enter into such commercially reasonable supply agreement if offered), and (iii) setting forth the price and other material terms on which Seller would be willing to sell the Right of First Offer Parcel. after entering into such commercially reasonable supply agreement, Buyer shall have fifteen (15) days from receipt received first delivery of the First Offer Notice in which to elect to purchase the Right of First Offer Parcel purified pentostatin and shall have accepted such delivery pursuant to the terms of such supply agreement (collectively, such items reflected in (i), (ii) and (iii) above shall be referred to as “Sigma A▇▇▇▇▇▇ Conditions”). Buyer shall use commercially reasonable efforts in seeking and obtaining approval of the First Offer NoticeNDA and each of Buyer and Seller shall use commercially reasonable efforts (and assist as reasonably necessary or desirable) to cause the Sigma A▇▇▇▇▇▇ Conditions to be satisfied; provided, however, that this obligation to use commercially reasonable efforts shall not require Buyer to enter into a supply agreement that is not commercially reasonable. If Buyer elects shall promptly pay to purchase Seller the Right Supply Holdback Amount upon full satisfaction of First Offer Parcel pursuant the Sigma A▇▇▇▇▇▇ Conditions; provided, however, that the Purchase Price shall be reduced by, and Seller shall have no right to, the Supply Holdback Amount, upon the passage of September 30, 2007 if at such time no inventory of pentostatin exists (“Stock Out”) or if inventory of pentostatin does exist as of September 30, 2007, then the date that a Stock Out occurs thereafter (the “Nipent® Stock Out Date”) without the full satisfaction of the Sigma A▇▇▇▇▇▇ Conditions; provided, further, that if Buyer secures supply of Nipent prior to the terms Nipent® Stock Out Date from a source other than Sigma A▇▇▇▇▇▇ and Seller reimburses Buyer for actual costs incurred by Seller in connection with securing such supply as set forth in Section 9.9 below, then Seller shall be entitled to payment of the First Offer Notice, Buyer shall give to Seller written notice thereof Supply Holdback Amount within five ("Acceptance Notice"5) within said fifteen (15) day period and closing shall be held within 90 days after of the date of the Acceptance Notice, whereupon Seller shall convey the Right of First Offer Parcel to Buyer. At closing, Seller shall deliver to Buyer a special warranty deed, sufficient to convey to Buyer fee simple title to the Right of First Offer Parcel free and clear of all liens, restrictions and encumbrances, except for those subject to which the Right of First Offer Parcel was to have been conveyed in accordance with the terms of the First Offer Noticereimbursement by Seller.
(iii) In the event Buyer shall elect not to purchase all or part of the Right of First Offer Parcel pursuant to a First Offer Notice, Seller may thereafter sell the property which was the subject of the First Offer Notice in accordance with the terms of the First Offer Notice. If Seller has not sold that portion of the Right of First Offer Parcel which was the subject of the First Offer Notice within six (6) months after the giving of the First Offer Notice for a purchase price not less than 97% of the purchase price specified in the First Offer Notice, Seller may not again seek to sell or convey or agree to sell or convey such portion of the Right of First Offer Parcel which was the subject of the First Offer Notice without again complying with the terms of the Right of First Offer Agreement.
(iv) To prevent Seller from defeating the rights of Buyer pursuant to this Agreement, Seller agrees that Seller will not during the Right of First Offer Term accept an offer to purchase all or any portion of the Right of First Offer Parcel together with any other property.
(v) The rights and obligations of Seller and Buyer pursuant to this Agreement shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and Buyer's successors and assigns.
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