|FORTERRA, INC. filed this Form 8-K on 06/11/2018|
Any and all rights of Landlord under this Lease shall inure to the benefit of Landlord’s successors and assigns, as well as Landlord’s Mortgagees and their successors and assigns as third party beneficiaries.
Section 34.01 Landlord hereby grants Tenant a right of first refusal to purchase a Demised Property, subject to the terms and conditions set forth in this Article 34. If at any time during the Lease Term, Landlord shall receive a bona fide offer from a Competitor for the purchase of any of the Demised Properties (whether or not solicited by Landlord) and Landlord either has accepted such offer or shall desire to accept such offer, Landlord shall notify Tenant of any such offer (the “Offering Notice”) by notice to Tenant specifying the following terms and information: (a) the name and address of the third-party offeror, (b) the purchase price for such Demised Property, and (c) any other terms and conditions set forth in such offer or, if applicable, the purchase agreement between Landlord and such third-party offeror (the “Third-Party Purchase Agreement”) that are material to the sale of such Demised Property, as determined by Landlord in Landlord’s commercially reasonable discretion.
Section 34.02 Tenant shall have fifteen (15) Business Days after the date of delivery of the Offering Notice to exercise the right of first refusal granted in this Article 34 (the “Review Period”). Such right of first refusal shall be exercisable by Tenant notifying Landlord (within such Review Period) of Tenant’s irrevocable election to purchase the applicable Demised Properties, subject only to the terms and conditions set forth in the Offering Notice (the “Exercise Notice”). Time shall be of the essence with respect to Tenant’s election and the giving of the Exercise Notice, and any failure to give Landlord the Exercise Notice within such Review Period shall be deemed to be an election by Tenant to waive the rights with respect to the Offering Notice granted to Tenant under this Article 34.
Section 34.03 Upon Tenant giving Landlord the Exercise Notice, Landlord and Tenant shall open an escrow account with a recognized title insurance or trust company selected by Tenant and reasonably acceptable to Landlord. Such escrow shall be subject to the standard escrow instructions of the escrow agent, to the extent they are not inconsistent with the terms of this Article 34 or the terms of the Offering Notice. At or before the close of escrow, Landlord shall deliver to the escrow agent its special warranty deed (or such other type of deed as is specified in the Offering Notice) conveying to Tenant all of Landlord’s right, title and interest in such Demised Property, in the condition and state of title specified in the Offering Notice. Both Landlord and Tenant agree to execute a purchase agreement, escrow instructions, an amendment to this Lease, an amended memorandum of lease (or similar instrument) and such other instruments as may be necessary or appropriate to consummate the sale of such Demised Property in the manner provided in this Article 34.
Section 34.04 In the event Tenant waives or is deemed to have waived its right of first refusal to purchase the applicable Demised Property, Landlord shall have the right to sell and convey the Demised Properties to such third-party offeror on the terms set forth in the Offering Notice, and upon the consummation of such a sale, Tenant’s right of first refusal shall cease to exist with respect to such Demised Property. Landlord shall not (a) consummate such a sale to the third party offeror for a net effective purchase price less than ninety five percent (95%) of the net purchase price set forth in the Offering Notice or (b) sell such Demised Property to a different Competitor than the Competitor disclosed in the applicable Offering Notice, without once again being required to offer such Demised Property to Tenant in accordance with this Article
-39- A&R MASTER LAND AND BUILDING LEASE