Common use of First Offer Right Clause in Contracts

First Offer Right. Subject to the approval by Seller’s ground lessee of the Retained Property (the “Ground Lessee”) and in consideration of the Purchase Price, Buyer shall have a right of first offer (the “Right of First Offer”) to purchase or lease the Retained Property on the terms set forth in this Section 10.6. Seller shall use commercially reasonable efforts to obtain the Ground Lessee’s consent to the Right of First Offer prior to expiration of the Due Diligence Period. 10.6.1 If Seller elects to sell or lease any portion of the Retained Property to any unaffiliated third party, prior to conducting any marketing activity, Seller will deliver to Buyer a written offer (the “Offer”) setting forth all the material terms upon which Seller proposes to sell or lease the Retained Property and offering to sell or lease the Retained Property to Buyer on the same terms. Buyer shall have ten (10) business days after receipt of an Offer in which to notify Seller (the “Notice”) that it would like to purchase the Property on the terms set forth in the Offer. If Buyer provides the Notice, within a reasonable time thereafter Seller and Buyer shall enter into a mutually satisfactory purchase and sale agreement (on substantially similar terms as this Agreement to the extent such terms are relevant) with respect to the sale of the Retained Property, or a mutually satisfactory lease of the Retained Property, and the sale or lease of the Retained Property will be completed pursuant to such agreement or lease. If Buyer does not timely deliver the Notice or rejects the Offer or if despite reasonable good faith efforts, Buyer and Seller fail to enter into a purchase agreement or lease within forty-five (45) days after delivery of Buyer’s Notice, Seller may sell or lease the Retained Property pursuant to Section 10.6.2. 10.6.2 If Buyer does not timely deliver the Notice, Seller may sell or lease the Retained Property to any unaffiliated third party on any terms desired by Seller so long as the terms are not “materially more favorable” to the third party buyer than those of the Offer. In the event that the proposed terms of a sale or lease are “materially more favorable” than the terms of the Offer, then Seller shall re-offer the Retained Property to Buyer on such terms and Buyer shall have five (5) business days after receipt of the written re-offer in which to deliver a Notice with respect to the re-offer. If Buyer provides the Notice, then within a reasonable time thereafter, Seller and Buyer shall enter into a mutually satisfactory purchase and sale agreement on substantially similar terms as this Agreement to the extent such terms are relevant) with respect to the sale of the Retained Property, or a mutually satisfactory lease, as the case may be, and the sale or lease will be completed pursuant to such agreement or lease. If Buyer does not timely deliver the Notice or rejects the re-offer, or if despite reasonable good faith efforts, Buyer and Seller fail to enter into a purchase agreement or lease within forty-five (45) days after delivery of Buyer’s Notice, Seller may sell or lease the Retained Property to any unaffiliated third party on terms that are not “materially more favorable” to the third party buyer than the terms of the re-offer. For the purpose of this Paragraph, “materially more favorable” means that the aggregate value of the purchase price (or rent) and the other economic terms of the third-party purchase (or lease) is lower than ninety-five percent (95%) of the purchase price (or rent) and the other economic terms of the Offer or re-offer, as applicable. 10.6.3 Notwithstanding that Buyer may have rejected or not timely delivered a Notice with respect to an Offer or re-offer, Seller shall keep Buyer informed about Seller’s efforts to market the Retained Property, and Buyer’s Right of First Offer shall continue until the Retained Property is sold to Buyer or a third party in accordance with Section 10.6. If, and only if, Seller sells the Retained Property to a third party in compliance with the terms of this Section 10.6, the Retained Property shall no longer be subject to Buyer’s Right of First Offer. The provisions of this Section 10.6 shall not apply to any sale or lease of any portion of the Retained Property to any wholly-owned subsidiary of Seller, or to any transfer in connection with a merger, acquisition or consolidation of Seller.

First Offer Right. Subject to the approval by Seller’s ground lessee of the Retained Property (the “Ground Lessee”) and in consideration of the Purchase Price, Buyer shall have a right of first offer (the “Right of First Offer”) to purchase or lease the Retained Property on the terms set forth in this Section 10.6. Seller shall use commercially reasonable efforts to obtain the Ground Lessee’s consent to the Right of First Offer prior to expiration of the Due Diligence Period. 10.6.1 If Seller elects to sell or lease any portion of the Retained Property to any unaffiliated third party, prior to conducting any marketing activity, Seller will deliver to Buyer a written offer (the “Offer”) setting forth all the material terms upon which Seller proposes to sell or lease the Retained Property and offering to sell or lease the Retained Property to Buyer on the same terms. Buyer shall have ten (10) business days after receipt of an Offer in which to notify Seller (the “Notice”) that it would like to purchase the Property on the terms set forth in the Offer. If Buyer provides the Notice, within a reasonable time thereafter Seller and Buyer shall enter into a mutually satisfactory purchase and sale agreement (on substantially similar terms as this Agreement to the extent such terms are relevant) with respect to the sale of the Retained Property, or a mutually satisfactory lease of the Retained Property, and the sale or lease of the Retained Property will be completed pursuant to such agreement or lease. If Buyer does not timely deliver the Notice or rejects the Offer or if despite reasonable good faith efforts, Buyer and Seller fail to enter into a purchase agreement or lease within forty-five (45) days after delivery of Buyer’s Notice, Seller may sell or lease the Retained Property pursuant to Section 10.6.2. 10.6.2 If Buyer does not timely deliver the Notice, Seller may sell or lease the Retained Property to any unaffiliated third party on any terms desired by Seller so long as the terms are not “materially more favorable” to the third party buyer than those of the Offer. In the event that the proposed terms of a sale or lease are “materially more favorable” than the terms of the Offer, then Seller shall re-offer the Retained Property to Buyer on such terms and Buyer shall have five (5) business days after receipt of the written re-offer in which to deliver a Notice with respect to the re-offer. If Buyer provides the Notice, then within a reasonable time thereafter, Seller and Buyer shall enter into a mutually satisfactory purchase and sale agreement on substantially similar terms as this Agreement to the extent such terms are relevant) with respect to the sale of the Retained Property, or a mutually satisfactory lease, as the case may be, and the sale or lease will be completed pursuant to such agreement or lease. If Buyer does not timely deliver the Notice or rejects the re-offer, or if despite reasonable good faith efforts, Buyer and Seller fail to enter into a purchase agreement or lease within forty-five (45) days after delivery of Buyer’s Notice, Seller may sell or lease the Retained Property to any unaffiliated third party on terms that are not “materially more favorable” to the third party buyer than the terms of the re-offer. For the purpose of this Paragraph, “materially more favorable” means that the aggregate value of the purchase price (or rent) and the other economic terms of the third-party purchase (or lease) is lower than ninety-five percent (95%) of the purchase price (or rent) and the other economic terms of the Offer or re-offer, as applicable. 10.6.3 Notwithstanding that Buyer may have rejected or not timely delivered a Notice with respect to an Offer or re-offer, Seller shall keep Buyer informed about Seller’s efforts to market the Retained Property, and Buyer’s Right of First Offer shall continue until the Retained Property is sold to Buyer or a third party in accordance with Section 10.6. If, and only if, Seller sells the Retained Property to a third party in compliance with the terms of this Section 10.6, the Retained Property shall no longer be subject to Buyer’s Right of First Offer. The provisions of this Section 10.6 shall not apply to any sale or lease of any portion of the Retained Property to any wholly-owned subsidiary of Seller, or to any transfer in connection with a merger, acquisition or consolidation of Seller.