Common use of Developer Response Clause in Contracts

Developer Response. Unless otherwise approved by Tejon and the Developers, only one (1) Developer at a time may accept a Company Offer or submit a “Counter-Offer” (as defined below) for any Offered Lot Group in accordance with the following rotation system: (1) In order to determine the order in which each Developer has the right to submit an offer, the following rotation system shall be utilized. Prior to the first Offered Lot Group being offered for sale by the Company, the Developers shall draw straws to determine the order of the rotation system with the first Developer being the one that draws the shortest straw, the second Developer being the one that draws the next shortest straw, and the third Developer being the one that draws the longest straw. Tejon shall officiate the drawing of straws. At any point in time with respect to each Offered Lot Group, the Developer first in line that is entitled to make an offer on such Offered Lot Group shall be referred to as the “First Developer” with respect to such Offered Lot Group, the Developer second in line that is entitled to make an offer on such Offered Lot Group shall be referred to herein as the “Second Developer” with respect to such Offered Lot Group, and the Developer third in line that is entitled to make an offer on such Offered Lot Group shall be referred to herein as the “Third Developer.” (2) If more than one Offered Lot Group is being offered for sale by the Company to the Developers at the same time, then the First Developer shall have the right to choose which Offered Lot Group shall be offered to such First Developer in the same order of priority established pursuant to the rotation system established in this Section 10.3 (i.e., the First Developer in the rotation system at the time of such offer of sale by the Company shall select first, then the Second Developer, and so on). (3) As the next Offered Lot Group (the “New Offered Lot Group”) is offered for sale by the Company, the First Developer on the previous Offered Lot Group offered for sale by the Company (the “Previous Offered Lot Group”) shall become the Third Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot Group), the Second Developer on the Previous Offered Lot Group shall become the First Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot Group), and the Third Developer on the Previous Offered Lot Group (if applicable) shall become the Second Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot Group). (4) With respect to each Offered Lot Group, the following procedure shall apply: (a) If the First Developer desires to purchase such Offered Lot Group (a “Responding Developer”), then it shall either (i) accept the Company Offer and agree to purchase the Offered Lot Group in accordance with the Company’s sales package for such Offered Lot Group by delivering to the Executive Committee written notice of such acceptance within the time period set forth in the Company Offer (“Developer Acceptance”), or (ii) deliver a written offer to the Executive Committee at such price and on such terms and conditions as are determined in the sole and absolute discretion of such Responding Developer prior to the expiration of the time period set forth in the Company Offer (the “Counter-Offer”). If a Responding Developer timely delivers a Developer Acceptance, then the Company shall sell such Offered Lot Group to such Developer (or its Affiliate) on the terms and conditions set forth in the Company Offer. If the Responding Developer timely delivers a Counter-Offer, then the Executive Committee may accept or reject such Counter-Offer in its sole and absolute discretion. If the Executive Committee does not accept such Responding Developer’s Counter-Offer (or the Company and the First Developer otherwise do not agree to the purchase and sale of the Offered Lot Group), then such Offered Lot Group shall be offered for sale (initially on the same terms as the last offer made by the Company to the First Developer) to the Second Developer and then the Third Developer (if the Second Developer does not timely deliver a Developer Acceptance or the Company and the Second Developer otherwise do not agree to the purchase and sale of the Offered Lot Group), in accordance with Section 10.3A(4)(b) below; provided that the Executive Committee may only accept an offer from any such other Second Developer or Third Developer if such offer is based on a purchase price which is at least as favorable for the Company as the purchase price set forth in the highest Counter-Offer previously rejected by the Company for such Offered Lot Group or, if no such Counter-Offer was made, the Offer Price; or (b) If such First Developer does not either timely deliver a Developer Acceptance or a Counter-Offer, then such Offered Lot Group shall be offered to the Second Developer and all of the procedures applicable to the First Developer in Section 10.3A(4)(a) shall be repeated for the Second Developer. If the Offered Lot Group is not purchased by the Second Developer, then such procedures shall be repeated for the Third Developer. (5) If, after the foregoing procedures have been applied to the First Developer and repeated for the Second Developer and the Third Developer, (i) a Developer Acceptance is not timely delivered by any Developer, and/or (ii) the Executive Committee fails to reach an agreement with any Developer in accordance with the procedures described above, then such Offered Lot Group shall be offered to Tejon (subject to the same terms and restrictions that apply to any Developer purchasing the Offered Lot Group under Section 10.3A(4)). (6) If, after being offered to Tejon in accordance with the preceding paragraph, (i) Tejon does not timely accept the offer and/or (ii) the Counter Offer of Tejon is not acceptable in accordance with the terms hereof or is otherwise not acceptable to the Executive Committee, then such Offered Lot Group shall no longer be considered an Offered Lot Group and shall be offered for sale by the Sales Employee in the open market to third-party merchant builders that are not Affiliated with any Member; provided that the Executive Committee shall not be authorized or permitted to Approve (without the unanimous consent of the Representatives) the acceptance of an offer from a third-party merchant builder unless such offer would result in net proceeds to the Company equal to at least 95% of either (i) the highest Counter-Offer with respect to that Offered Lot Group, or (ii) if no Counter-Offer was made by any Developer, the Offer Price. (7) ▇▇▇▇▇ is presently not engaged in the business of developing and building for sale single-family attached and/or detached residences. Notwithstanding the foregoing, ▇▇▇▇▇ has negotiated for the right to purchase Lots in accordance with the terms of this Section 10.3 since ▇▇▇▇▇ may in the future elect to engage in such business. However, if ▇▇▇▇▇ hereafter determines for any given period of time that it will not re-enter the business of developing and building for sale single-family attached and/or detached residences and, as a result thereof, elects to waive any of its rights for such period to purchase Lots pursuant to this Section 10.3, then it shall deliver written notice thereof to the Executive Committee. ▇▇▇▇▇ shall have the right to make or not make such determination and/or election for any given period of time in its sole and absolute discretion. If and only if such determination and election is made by ▇▇▇▇▇ as evidenced by the delivery of such written notice, then ▇▇▇▇▇▇ and Standard Pacific shall each be offered fifty percent (50%) of the Lots that would otherwise be offered to sale to ▇▇▇▇▇ during such period pursuant to this Section 10.3A(6). Any such allocation of Lots to ▇▇▇▇▇▇ and Standard Pacific shall be reduced by a percentage equal the reduction in each such Member’s Percentage Interest in accordance with the terms of Section 10.

Developer Response. Unless otherwise approved by Tejon and the Developers, only one (1) Developer at a time may accept a Company Offer or submit a “Counter-Offer” (as defined below) for any Offered Lot Group in accordance with the following rotation system: (1) In order to determine the order in which each Developer has the right to submit an offer, the following rotation system shall be utilized. Prior to the first Offered Lot Group being offered for sale by the Company, the Developers shall draw straws to determine the order of the rotation system with the first Developer being the one that draws the shortest straw, the second Developer being the one that draws the next shortest straw, and the third Developer being the one that draws the longest straw. Tejon shall officiate the drawing of straws. At any point in time with respect to each Offered Lot Group, the Developer first in line that is entitled to make an offer on such Offered Lot Group shall be referred to as the “First Developer” with respect to such Offered Lot Group, the Developer second in line that is entitled to make an offer on such Offered Lot Group shall be referred to herein as the “Second Developer” with respect to such Offered Lot Group, and the Developer third in line that is entitled to make an offer on such Offered Lot Group shall be referred to herein as the “Third Developer”.” (2) If more than one Offered Lot Group is being offered for sale by the Company to the Developers at the same time, then the First Developer shall have the right to choose which Offered Lot Group shall be offered to such First Developer in the same order of priority established pursuant to the rotation system established in this Section 10.3 (i.e., the First Developer in the rotation system at the time of such offer of sale by the Company shall select first, then the Second Developer, and so on). (3) As the next Offered Lot Group (the “New Offered Lot Group”) is offered for sale by the Company, the First Developer on the previous Offered Lot Group offered for sale by the Company (the “Previous Offered Lot Group”) shall become the Third Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot GroupGroup ), the Second Developer on the Previous Offered Lot Group shall become the First Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot GroupGroup ), and the Third Developer on the Previous Offered Lot Group (if applicable) shall become the Second Developer on the New Offered Lot Group (irrespective of whether such Developer actually made an offer on or purchased such Previous Offered Lot Group). (4) With respect to each Offered Lot Group, the following procedure shall apply: (a) If the First Developer desires to purchase such Offered Lot Group (a “Responding Developer”), then it shall either (i) accept the Company Offer and agree to purchase the Offered Lot Group in accordance with the Company’s sales package for such Offered Lot Group by delivering to the Executive Committee written notice of such acceptance within the time period set forth in the Company Offer (“Developer Acceptance”), or (ii) deliver a written offer to the Executive Committee at such price and on such terms and conditions as are determined in the sole and absolute discretion of such Responding Developer prior to the expiration of the time period set forth in the Company Offer (the “Counter-Offer”). If a Responding Developer timely delivers a Developer Acceptance, then the Company shall sell such Offered Lot Group to such Developer (or its Affiliate) on the terms and conditions set forth in the Company Offer. If the Responding Developer timely delivers a Counter-Offer, then the Executive Committee may accept or reject such Counter-Offer in its sole and absolute discretion. If the Executive Committee does not accept such Responding Developer’s Counter-Offer (or the Company and the First Developer otherwise do not agree to the purchase and sale of the Offered Lot Group), then such Offered Lot Group shall be offered for sale (initially on the same terms as the last offer made by the Company to the First Developer) to the Second Developer and then the Third Developer (if the Second Developer does not timely deliver a Developer Acceptance or the Company and the Second Developer otherwise do not agree to the purchase and sale of the Offered Lot Group), in accordance with Section 10.3A(4)(b) below; provided that the Executive Committee may only accept an offer from any such other Second Developer or Third Developer if such offer is based on a purchase price which is at least as favorable for the Company as the purchase price set forth in the highest Counter-Offer previously rejected by the Company for such Offered Lot Group or, if no such Counter-Offer was made, the Offer Price; or (b) If such First Developer does not either timely deliver a Developer Acceptance or a Counter-Offer, then such Offered Lot Group shall be offered to the Second Developer and all of the procedures applicable to the First Developer in Section 10.3A(4)(a) shall be repeated for the Second Developer. If the Offered Lot Group is not purchased by the Second Developer, then such procedures shall be repeated for the Third Developer. (5) IfIf , after the foregoing procedures have been applied to the First Developer and repeated for the Second Developer and the Third Developer, (i) a Developer Acceptance is not timely delivered by any Developer, Developer and/or (ii) the Executive Committee fails to reach an agreement with any Developer in accordance with the procedures described above, then such Offered Lot Group shall be offered to Tejon (subject to the same terms and restrictions that apply to any Developer purchasing the Offered Lot Group under Section 10.3A(4)). (6) If, after being offered to Tejon in accordance with the preceding paragraph, (i) Tejon does not timely accept the offer and/or (ii) the Counter Offer of Tejon is not acceptable in accordance with the terms hereof or is otherwise not acceptable to the Executive Committee, then such Offered Lot Group shall no longer be considered an Offered Lot Group and shall be offered for sale by the Sales Employee in the open market to third-party merchant builders that are not Affiliated with any Member; provided that the Executive Committee shall not be authorized or permitted to Approve (without the unanimous consent of the Representatives) the acceptance of an offer from a third-party merchant builder unless such offer would result in net proceeds to the Company equal to at least 95% of either (i) the highest Counter-Offer with respect to that Offered Lot Group, or (ii) if no Counter-Offer was made by any Developer, the Offer Price. (76) ▇▇▇▇▇ is presently not engaged in the business of developing and building for sale single-family attached and/or detached residences. Notwithstanding the foregoing, ▇▇▇▇▇ has negotiated for the right to purchase Lots in accordance with the terms of this Section 10.3 since ▇▇▇▇▇ may in the future elect to engage in such business. However, if ▇▇▇▇▇ hereafter determines for any given period of time that it will not re-enter the business of developing and building for sale single-family attached and/or detached residences and, as a result thereof, elects to waive any of its rights for such period to purchase Lots pursuant to this Section 10.3, then it shall deliver written notice thereof to the Executive Committee. ▇▇▇▇▇ shall have the right to make or not make such determination and/or election for any given period of time in its sole and absolute discretion. If and only if such determination and election is made by ▇▇▇▇▇ as evidenced by the delivery of such written notice, then ▇▇▇▇▇▇ and Standard Pacific shall each be offered fifty percent succeed (50%in proportion to their respective Percentage Interests) to the rights of the Lots that would otherwise be offered to sale to ▇▇▇▇▇ during such period to purchase Lots pursuant to this Section 10.3A(6). Any such allocation of Lots to ▇▇▇▇▇▇ and Standard Pacific shall be reduced by a percentage equal the reduction in each such Member’s Percentage Interest in accordance with the terms of Section 1010.3.