NOTICE: THIS
AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA
UNIFORM
ARBITRATION ACT, SECTION 15-48-10 ET SEQ. OF THE CODE OF LAWS OF
SOUTH CAROLINA
RIGHT OF FIRST
OPPORTUNITY
THIS RIGHT OF FIRST OPPORTUNITY (this
“ Agreement ”) is made as of September 9,
2009 by and between HTA — GREENVILLE, LLC, a Delaware limited
liability company (“ REIT ”), and GREENVILLE
HOSPITAL SYSTEM, a political subdivision organized under the laws
of South Carolina (“ GHS ”). REIT and GHS are
sometimes collectively referred to herein as the “
Parties ” and individually as a “ Party
”.
In consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. General
Provisions .
(a) Right of
Opportunity . If at any time during the “Term” (as
defined in that certain Future Development Agreement, by and
between REIT and GHS, dated as of September , 2009
(the “ Future Development Agreement ”)), GHS
desires to develop and/or sell any of the properties set forth on
Exhibit A hereto (the “ Properties ”) with
“Outside Funding” (as hereinafter defined) (any such
development or sale, an “ Opportunity ”), GHS
shall offer REIT such Opportunity on the terms set forth in the
Future Development Agreement and this Agreement. If REIT is offered
any such Opportunity to develop and/or purchase such Property, REIT
may elect, in its sole and absolute discretion, to accept such
Opportunity. For purposes of this Agreement, “ Outside
Funding ” shall mean funding for the applicable
development and/or sale of a Property which comes from sources
other than (A) GHS itself, (B) joint venture
relationships with other healthcare providers or
(C) physicians or other tenants of space occupied by GHS.
(b) Future Cancer
Center . In addition to the terms and conditions set forth in
the Future Development Agreement, in the event the Parties elect
for REIT to fund development of or purchase the Future Cancer
Center Project, the terms and condition set forth in Exhibit B
hereto shall apply.
2. Miscellaneous
.
(a) Notices . Any
notice to be given or document to be delivered under this
Agreement, except as otherwise herein provided, shall be
(i) delivered in person, (ii) sent by Federal Express,
UPS Next Day Air or another recognized next-day business courier,
(iii) sent by certified mail, postage prepaid, return receipt
requested, or (iv) sent by facsimile transmission to the
following addresses:
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If intended for REIT:
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Greenville Hospital System
701 Grove Road
Greenville, SC 29605
Attn: Joseph J. Blake, Jr., Esq., VP
Legal Affairs and General Counsel
Fax: (864) 455-6400
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16427 N. Scottsdale Rd., Ste. 440
Scottsdale, AZ 85254
Attn: Scott Peters
Phone: (480) 998-3478
Fax: (480) 991-0755
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With copy to:
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Haynsworth Sinkler Boyd, P.A.
75 Beattie Place, 11th Floor
Greenville, SC 29601
Attn: Anne S. Ellefson, Esquire
Fax: 864-240-3300
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Cox, Castle & Nicholson LLP
2049 Century Park East, Suite 2800
Los Angeles, CA 90067
Attn: John F. Nicholson, Esquire
Phone: (310) 284-2240
Fax: (310) 277-7889(d)
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A notice shall be deemed received
(i) upon receipt if delivered in person, (ii) the next
business day following delivery to a courier service for next
business day delivery, (iii) three (3) business days
after deposit in the U.S. mail, certified with postage prepaid and
return receipt requested, or (iv) if by facsimile
transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise. A Party may
designate a different address for purposes
