Common use of Buy-Sell Agreement Clause in Contracts

Buy-Sell Agreement. (a) Notwithstanding Section 8.01(b), at any time after the earlier of (i) the date on which a Member acquires, directly or indirectly, ownership of more than fifty percent (50%) of the outstanding Class A Interests or (ii) June 1, 2009, either Ventures or Coinstar (the “Offering Party”) shall have the right, exercisable in its sole discretion, at any time thereafter to deliver a written notice (the “Buy-Sell Notice”) to the other party (the “Offeree Party”) indicating the Offering Party’s desire to sell all of its and its Affiliates’, if any, Class A Interests to the Offeree Party for fair market value as determined pursuant to Section 8.06(e). The Offeree Party shall then have the option to agree to purchase all (but not less than all) of the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, in its sole discretion) within five (5) days of the receipt of written notice of the fair market value determination made pursuant to Section 8.06(e), and to complete such purchase within sixty (60) days after the receipt of all necessary approvals from any Governmental Entity or, if no such approvals are necessary, within sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e). (b) In the event the Offeree Party notifies the Offering Party in writing of its irrevocable and unconditional agreement to purchase all (but not less than all) of the Offering Party’s and its Affiliates’, if any, Class A Interests, the Offeree Party shall purchase all of the Class A Interests offered by the Offering Party and its Affiliates, if any (and shall, at its discretion, be entitled to purchase the Interests of the other Members), and the Offering Party and its Affiliates shall sell all such Class A Interests (and the other Members shall sell their Interests, in the Offeree Party’s discretion). The closing of such sale shall occur as soon as reasonably practicable (but, in any event, not more than sixty (60) days after the receipt of all necessary approvals from any Governmental Entity or, if no such approvals are necessary, not more than sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e)) at a time and place specified by the Offeree Party. At such closing, the Offeree Party shall deliver to the Offering Party and its Affiliates, if any, (and to the other Members, if applicable) the purchase price payment specified pursuant to Section 8.06(e) and the Offering Party and its Affiliates, if any, (and the other Members, if applicable) shall deliver the certificates representing the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable) and all other documents required to effect the sale of the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable), free and clear of any Liens (unless otherwise agreed by the Offeree Party). Each of the buyer and sellers in such transaction shall pay one-half of any transfer, stamp or similar Taxes or governmental charges in connection with each Interest transferred in such sale and shall otherwise bear its own costs and expenses in connection with such sale. (c) If within five (5) days of the receipt of written notice of the fair market value determination of the Interests pursuant to Section 8.06(e) the Offeree Party has not provided to the Offering Party in writing an irrevocable and unconditional agreement to purchase or has declined to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests, or if the Offeree Party has failed to complete a transaction to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests within the applicable period set forth in Section 8.06(b), the Offering Party shall have, for a period of one (1) year following the date on which the Offering Party can first exercise its rights pursuant to this Section 8.06(c) (with such one-year period to be extended for additional three-month periods if the Offering Party is diligently pursuing a sale or public offering of the Interests or a sale of all or substantially all of the Company’s assets), the right to cause and direct (including control of the sale or public offering process) a sale of the Interests or all or substantially all of the assets of the Company to any unaffiliated Person at the best price then attainable or a public offering of all of the Interests (which may include conversion of the Interests into alternate securities representing equivalent economic value) at the best price then attainable, without any limitations imposed by this Agreement other than (i) Section 8.02(b)(i), (ii) a right of first refusal by the Offeree Party pursuant to Section 8.05(b)(i) and (d) (provided that such rights of first refusal shall exist only if the purchase price pursuant to such sale or public offering is less than the fair market value of the Interests determined pursuant to Section 8.06(e)), and (iii) the right of the holders of Eligible Class B Vested Interests to receive consideration (or, in the case of a public offering, a ratio at which each Eligible Class B Vested Interest will be converted into the equity securities that are publicly offered) equal to the fair market value of the Eligible Class B Vested Interests as determined by approval of the Board of Managers pursuant to Section 6.03(a), based on the value of the Class A Interests to be purchased by the Sale Purchaser, and the Members shall have the obligation to deliver to such Person or offer in such public offering, all (but not less than all) of their Interests (other than any Interests held by any Member purchasing all of the other Interests in such sale) or, in the case of a sale of all or substantially all of the Company’s assets, the Offeree Party shall have the obligation to cause Representatives appointed by the Offeree Party to vote in favor of such asset sale; provided that the Offering Party has approved such transaction. In any such sale or offering, all of the holders of Class A Interests must receive the same form and amount of consideration for such Class A Interests as all other holders of Class A Interests, or if any Member is given an option as to the form and amount of consideration to be received, all holders of Class A Interests must be given the same option. (d) If the Company is able to effect a sale or a public offering of the Interests that complies with Section 8.06(c), then the Company shall arrange for the consideration to be paid by the proposed purchaser of the Interests or in such public offering directly to the Members upon delivery by the Members of certificates representing their Interests being sold under this Section 8.06, duly endorsed, together with such other documents as the Offering Party, the Company and the purchaser in such sale of Interests or underwriter in such public offering may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser or underwriter, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser or underwriter. If the Company is able to effect a sale of all or substantially all of its assets that complies with Section 8.06(c), then the Company shall arrange for the consideration paid to it to be paid to the Members upon delivery by the Members of such documents as the Offering Party, the Company and the purchaser of such assets may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser. All costs and expenses incurred by the Members in connection with any such sale of Interests or all or substantially all of the Company’s assets or public offering shall be borne by the Company. In the event the other Members fail to deliver their Interests and such other documents reasonably requested by the purchaser or underwriter as a condition to the closing of such sale or offering, as applicable, or breach any representations, warranties or pre-closing covenants required by the purchaser or underwriter and such failure or breach results in the nonsatisfaction of a condition to the closing of such sale or offering that the purchaser or underwriter does not waive, then (i) the Offering Party and those Members that delivered their Interests and the documents reasonably requested by the purchaser or underwriter (provided that such Member(s) include at least one Member holding Class A Interests), as applicable, shall be free to sell their Interests to the purchaser or offer their Interests in a public offering, or the Company shall be free to sell all or substantially all of its assets, without Liability to the breaching party and shall not be subject to any restrictions on Transfer of Interests under this Agreement from the date of such breach, (ii) the breaching party shall be liable for (and shall hold the non-breaching party harmless with respect to) such breach, and (iii) any sale or offering shall not limit or waive in any respect any claim, right or cause of action that such Members may have against the breaching party in respect of such breach. (e) The Offering Party and the Offeree Party agree to negotiate in good faith the value of the Interests for thirty (30) days after the date of the Buy-Sell Notice. If the Offering Party and the Offeree Party are not in agreement with respect to the fair market value of the Interests for purposes of this Section 8.06 within such time, then the Offering Party and the Offeree Party will each appoint a nationally recognized investment banking firm that is not an Affiliate of such party (an “Appraiser”) to appraise the value of the Interests. The appraisals will be completed within twenty (20) days of the earlier of the dates on which either the Offering Party or the Offeree Party appoints an Appraiser, in each case pursuant to the foregoing sentence. If the value (or, in the case of an appraisal that generates a range of values, the median value of such appraisal) of each appraisal is within ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the appraisals will be averaged with the resulting value being deemed to be the fair market value for purposes of this Section 8.06. If the value (or median value in the case of a range) of one appraisal is more than ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the Offering Party and the Offeree Party will attempt to agree upon the fair market value of the Interests for a five (5) day period following the expiration of the immediately preceding twenty (20) day period referred to in this Section 8.06(e). If the Offering Party and the Offeree Party are unable to agree on the fair market value of the Interests, then the two Appraisers will jointly retain a third Appraiser, to complete a third appraisal within twenty (20) days immediately following the expiration of the immediately preceding five (5) day period referred to in this Section 8.06(e). The fair market value for purposes of this Section 8.06(e) will then be the average of the two closest appraisals (or median values in the case of ranges of values) among the three appraisals referred to herein. When determining the fair market value of the Interests, each Appraiser shall value such Interests at the fair market value of all of the Interests in a public offering, without any minority ownership or liquidity discounts. For purposes of this Agreement, the Offeree Party shall be deemed to have received written notice of the fair market valuation (i) on the date the Offering Party and the Offeree Party agree to such valuation, if such agreement is reached, or (ii) on the date it receives written notice from the applicable Appraisers of the fair market value determination under the terms of this Section 8.06(e). (f) Notwithstanding anything in this Agreement to the contrary, any Transfers proposed or effectuated pursuant to this Section 8.06 shall not be subject to the tag-along rights or the rights of first refusal set forth in Section 8.05; provided, however, that each of Ventures and Coinstar shall be able to exercise the right of first refusal set forth in Section 8.06(c) if the purchase price pursuant to a sale or public offering pursuant to Section 8.06(c) is less than the fair market value of the Interests determined pursuant to Section 8.06(e).

Buy-Sell Agreement. (a) Notwithstanding Sodak and HWCC shall each have the rights of purchase and sale as set forth in this Section 8.01(b16.6, which shall be exercised by Sodak or HWCC by delivering to the other party a written notice (an "Election Notice"). (b) Except as provided under Section 16.6(h) below, at any time after the earlier two-year anniversary date of the commencement of gambling at the Complex, (the "Commencement Date"), Sodak or HWCC (the "Electing Party") may submit to the other applicable party (the "Notice Party") an Election Notice. The Election Notice, to be valid, shall state a proposed price for all of the Electing Party's ownership interest in the Venture. In addition, the Election Notice shall state that if HWCC becomes obligated to sell, and Sodak becomes obligated to purchase, all of HWCC's ownership interest in the Venture pursuant to the terms and conditions of this Section 16.6, then Sodak shall also be obligated to purchase all rights and benefits (the "Operator Rights") of HWCC-Shreveport, Inc., its successors and assigns (the "Operator") under the Management Services Agreement dated September 22, 1998 by and between QNOV and the Operator, as amended (the "Management Agreement") pursuant to Section 16.6(d) below. (c) An Election Notice shall constitute an irrevocable offer by the Electing Party either to (i) the date on which a Member acquires, directly or indirectly, ownership of more than fifty percent (50%) of the outstanding Class A Interests or (ii) June 1, 2009, either Ventures or Coinstar (the “Offering Party”) shall have the right, exercisable in its sole discretion, at any time thereafter to deliver a written notice (the “Buy-Sell Notice”) sell to the other party (the “Offeree Party”) indicating the Offering Party’s desire to sell all of its and its Affiliates’Notice Party all, if any, Class A Interests to the Offeree Party for fair market value as determined pursuant to Section 8.06(e). The Offeree Party shall then have the option to agree to purchase all (but not less than all) , of the Offering Electing Party’s and its Affiliates’, if any, Class A Interests 's ownership interest in the Venture at a price equal to that set forth in the Election Notice (and the Interests of the other Members"Electing Party JV Interest Price") and, in its sole discretion) within five (5) days of the receipt of written notice of the fair market value determination made pursuant to Section 8.06(e), and to complete such purchase within sixty (60) days after the receipt of all necessary approvals from any Governmental Entity or, if no such approvals are necessary, within sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e). (b) In the event HWCC is the Offeree Electing Party notifies to cause the Offering Operator to sell to the Notice Party in writing of its irrevocable and unconditional agreement to purchase all (all, but not less than all) , of the Offering Operator Rights, or (ii) purchase from the Notice Party all, but not less than all, of the Notice Party’s and its Affiliates’, if any, Class A Interests's interest in the Venture at a price equal to the Electing Party JV Interest Price multiplied by a fraction, the Offeree Party shall purchase all numerator of which is the Class A Interests offered by the Offering Party and its Affiliates, if any (and shall, at its discretion, be entitled to purchase the Interests of the other Members)Notice Party's Relative Ownership Ratio, and the Offering denominator of which is the Electing Party's Relative Ownership Ratio (the "Notice Party and its Affiliates shall sell all such Class A Interests (and the other Members shall sell their InterestsJV Interest Price"), and, in the Offeree event HWCC is the Notice Party’s discretion). The closing of such sale shall occur as soon as reasonably practicable (but, in any eventpurchase from the Operator all, but not more less than sixty (60) days after the receipt of all necessary approvals from any Governmental Entity orall, if no such approvals are necessary, not more than sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e)) at a time and place specified by the Offeree Party. At such closing, the Offeree Party shall deliver to the Offering Party and its Affiliates, if any, (and to the other Members, if applicable) the purchase price payment specified pursuant to Section 8.06(e) and the Offering Party and its Affiliates, if any, (and the other Members, if applicable) shall deliver the certificates representing the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable) and all other documents required to effect the sale of the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable), free and clear of any Liens (unless otherwise agreed by the Offeree Party). Each of the buyer and sellers in such transaction shall pay one-half of any transfer, stamp or similar Taxes or governmental charges in connection with each Interest transferred in such sale and shall otherwise bear its own costs and expenses in connection with such saleOperator Rights. (cd) If within five (5) days of the receipt of written notice of the fair market value determination of the Interests pursuant to Section 8.06(e) the Offeree Party has not provided to the Offering Party in writing an irrevocable and unconditional agreement to purchase or has declined to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests, or if the Offeree Party has failed to complete a transaction to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests within the applicable period set forth in Section 8.06(b), the Offering Party shall have, for a period of one (1) year following the date on The price at which the Offering Party can first exercise its rights pursuant to Operator Rights are purchased and sold under this Section 8.06(c) (with such one-year period to 16.6 shall be extended for additional three-month periods if the Offering Party is diligently pursuing a sale or public offering of the Interests or a sale of all or substantially all of the Company’s assets), the right to cause and direct (including control of the sale or public offering process) a sale of the Interests or all or substantially all of the assets of the Company to any unaffiliated Person at the best price then attainable or a public offering of all of the Interests (which may include conversion of the Interests into alternate securities representing equivalent economic value) at the best price then attainable, without any limitations imposed by this "Management Agreement other than (i) Section 8.02(b)(i), (ii) a right of first refusal by the Offeree Party pursuant to Section 8.05(b)(i) and (d) (provided that such rights of first refusal Value." The Management Agreement Value shall exist only if the purchase price pursuant to such sale or public offering is less than be the fair market value of the Interests Operator Rights as determined pursuant to Section 8.06(e)), and (iii) the right by mutual agreement of the holders parties; provided, however, that if the parties are unable to agree on the Management Agreement Value within twenty (20) days after delivery of Eligible Class B Vested Interests the Election Notice, then either party may provide notice (the "Initial Appraisal Notice") to receive consideration the other party that the Management Agreement Value shall be determined according to the terms and conditions of the remainder of this Section 16.6(d). In the event the Electing Party and the Notice Party are able to mutually agree upon an investment banking firm of national standing (oran "Authorized Investment Banker") within ten (10) days following the delivery of the Initial Appraisal Notice, in then the case of a public offering, a ratio at which each Eligible Class B Vested Interest will Management Agreement Value shall be converted into the equity securities that are publicly offered) equal to the fair market value of the Eligible Class B Vested Interests Operator Rights as determined by approval of the Board of Managers pursuant to Section 6.03(a), based on the value of the Class A Interests to be purchased by the Sale Purchaser, and the Members shall have the obligation to deliver to such Person or offer in such public offering, all (but not less than all) of their Interests (other than any Interests held by any Member purchasing all of the other Interests in such sale) or, in the case of a sale of all or substantially all of the Company’s assetsAuthorized Investment Banker, the Offeree Party shall have the obligation to cause Representatives appointed by the Offeree Party to vote in favor cost of such asset sale; provided that the Offering Party has approved such transaction. In any such sale or offering, all of the holders of Class A Interests must receive the same form and amount of consideration for such Class A Interests as all other holders of Class A Interests, or if any Member is given an option as to the form and amount of consideration to be received, all holders of Class A Interests must be given the same option. (d) If the Company is able to effect a sale or a public offering of the Interests that complies with Section 8.06(c), then the Company shall arrange for the consideration to be paid by the proposed purchaser of the Interests or in such public offering directly to the Members upon delivery by the Members of certificates representing their Interests being sold under this Section 8.06, duly endorsed, together with such other documents as the Offering Party, the Company and the purchaser in such sale of Interests or underwriter in such public offering may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser or underwriter, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser or underwriter. If the Company is able to effect a sale of all or substantially all of its assets that complies with Section 8.06(c), then the Company shall arrange for the consideration paid to it to be paid to the Members upon delivery by the Members of such documents as the Offering Party, the Company and the purchaser of such assets may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser. All costs and expenses incurred by the Members in connection with any such sale of Interests or all or substantially all of the Company’s assets or public offering which appraisal shall be equally borne by the CompanyElecting Party and the Notice Party. In the event the other Members fail to deliver their Interests and such other documents reasonably requested by the purchaser or underwriter as a condition to the closing of such sale or offering, as applicable, or breach any representations, warranties or pre-closing covenants required by the purchaser or underwriter and such failure or breach results in the nonsatisfaction of a condition to the closing of such sale or offering that the purchaser or underwriter does not waive, then (i) the Offering Party and those Members that delivered their Interests and the documents reasonably requested by the purchaser or underwriter (provided that such Member(s) include at least one Member holding Class A Interests), as applicable, shall be free to sell their Interests to the purchaser or offer their Interests in a public offering, or the Company shall be free to sell all or substantially all of its assets, without Liability to the breaching party and shall not be subject to any restrictions on Transfer of Interests under this Agreement from the date of such breach, (ii) the breaching party shall be liable for (and shall hold the non-breaching party harmless with respect to) such breach, and (iii) any sale or offering shall not limit or waive in any respect any claim, right or cause of action that such Members may have against the breaching party in respect of such breach. (e) The Offering Electing Party and the Offeree Notice Party are unable to agree to negotiate in good faith upon an Authorized Investment Banker within ten (10) days following the value delivery of the Interests for thirty (30) days after the date of the Buy-Sell Initial Appraisal Notice. If the Offering Party and the Offeree Party are not in agreement with respect to the fair market value of the Interests for purposes of this Section 8.06 within such time, then the Offering Party and the Offeree Party will each appoint a nationally recognized investment banking firm that is not an Affiliate of such party (an “Appraiser”) to appraise the value of the Interests. The appraisals will be completed within twenty (20) days of the earlier delivery of the dates on which either the Offering Party or the Offeree Party appoints Initial Appraisal Notice each such party shall select an AppraiserAuthorized Investment Banker, in each case pursuant to the foregoing sentence. If the value (or, in the case of whom shall perform an appraisal that generates a range of values, the median value of such appraisal) of each appraisal is within ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the appraisals will be averaged with the resulting value being deemed to be the fair market value for purposes of this Section 8.06. If the value (or median value in the case of a range) of one appraisal is more than ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the Offering Party and the Offeree Party will attempt to agree upon the fair market value of the Interests for Operator Rights (each an "Initial Appraisal" and together the "Initial Appraisals"). The cost of each Initial Appraisal shall be borne by the party appointing the Authorized Investment Banker conducting such appraisal. In the event that the difference between the Initial Appraisals is more than 10% of the higher of such Initial Appraisals, then within ten (10) days of the date both parties have received notice of the amount of such Initial Appraisals, either party may provide notice (the "Final Appraisal Notice") to the other party that a third appraisal shall be conducted, in which case each party shall instruct their Authorized Investment Banker to work with the other party's Authorized Investment Banker to appoint a third Authorized Investment Banker (the "Final Investment Banker") to conduct an appraisal of the fair market value of the Operator Rights (the "Final Appraisal"). In the event of a Final Appraisal Notice, the Management Agreement Value shall be the average of (i) the average of the Initial Appraisals and (ii) the Final Appraisal. The cost of the Final Appraisal shall be equally borne by the Electing Party and the Notice Party. In the event that either (x) the difference between the Initial Appraisals is 10% or less of the higher of such Initial Appraisals, or (y) such difference is greater than 10% but neither party elects to send a Final Appraisal Notice within the required ten (10) day period, then the Management Agreement Value shall be deemed to be the average of the Initial Appraisals. (e) The Notice Party shall have the right, within thirty (30) days following the later of the delivery of the Election Notice or the determination of the Management Agreement Value, to elect, in writing, to either (i) purchase the Electing Party's ownership interest in the Venture at the Electing Party JV Interest Price and, in the event the Electing Party is HWCC, the Operator Rights at the Management Agreement Value, or (ii) sell to the Electing Party all, but not less than all, of its ownership interest in the Venture at the Notice Party JV Interest Price and, in the event the Notice Party is HWCC, to cause the Operator to sell to the Electing Party all, but not less than all, of the Operator Rights at the Management Agreement Value. In the event the Notice Party does not elect, in writing, to purchase the Electing Party's ownership interest in the Venture and the Operator Rights (in the event the Electing Party is HWCC) within the aforementioned thirty (30) day period, then the Notice Party shall be obligated to sell to the Electing Party, and the Electing Party shall be obligated to purchase, all but not less than all, of the Notice Party's ownership interest in the Venture at the Notice Party JV Interest Price and, in the event the Notice Party is HWCC, to cause the Operator to sell to the Electing Party all, but not less than all, of the Operator Rights at the Management Agreement Value. (f) The closing of the purchase and sale of the transactions contemplated by this Section shall occur on a date and time mutually agreed upon by the Electing Party and Notice Party, which, in any event, shall occur no later than one hundred and five (5105) day days (other than in the event of an Election Notice submitted in accordance with Section 16.6(h), in which case such period shall be sixty (60) days) immediately following the earlier of the date of the Notice Party's written notice of election as set forth in Section 16.6(e) or the expiration of the immediately preceding thirty (30) day period referenced in Section 16.6(e). At the closing, the selling and the purchasing party shall execute such documents and instruments of conveyance as may be necessary or appropriate to confirm the transactions contemplated by this Section 16.6. Each party shall bear all of their own respective costs and expenses in connection with the closing pursuant hereto except as expressly provided above. (g) Notwithstanding the terms and provisions set forth in this Section 16.6, in no instance shall a party have the right to submit an Election Notice in the event such party is at such time deemed to be unsuitable by the LGCB. If at any time following the date of an Election Notice but prior to the closing date of the transactions contemplated by the Election Notice (the "Interim Period"), a party is deemed to be unsuitable by the LGCB, then the Election Notice shall be null and void unless the Notice Party elects, in writing, within ten (10) days following the date the Notice Party receives notice that the applicable party is deemed unsuitable, to proceed with the procedures and transactions contemplated by such Election Notice pursuant hereto. Notwithstanding the foregoing, if the Notice Party is deemed unsuitable at any time during the Interim Period, the Notice Party shall not have the foregoing right to proceed with the procedures and transactions contemplated by the applicable Election Notice. (h) Notwithstanding the terms and provisions set forth in this Section, a party may submit an Election Notice at any time following the termination of the Funding Notice Period (as defined below) if (i) such other applicable party fails to provide its pro rata portion of funds (x) necessary to complete construction of the Complex according to a size, scope, details and specifications mutually agreeable to each of HWCC and Sodak or (y) required under the terms of this Agreement, and (ii) the party submitting such Election Notice has provided its required portion of such funds. Upon the occurrence of an event set forth in Section 16.6(h)(i), the funding party shall notify the non- funding party, in writing, that the non-funding party shall have the right to cure its failure to fund by providing its pro rata portion of funds within the twenty (20) day period referred to following the date of such notice (the "Funding Notice Period). In the event of an Election Notice delivered in accordance with this Section 8.06(e16.6(h). If , the Offering Electing Party may elect to contribute the funds required to be contributed by the Notice Party (the "Shortfall Required Amount"), and such Shortfall Required Amount shall be either deemed to be (x) a loan by the Offeree Electing Party are unable to agree on the fair market value Venture, accruing interest at a variable rate of interest per annum equal to the prime rate of interest announced from time to time by U.S. Bank National Association, and to be repaid by the Notice Party in the event that the Notice Party elects to purchase in accordance with Section 16.6(e) at the same time as the closing for the purchase of the Interests, then the two Appraisers will jointly retain a third Appraiser, to complete a third appraisal within twenty (20) days immediately following the expiration of the immediately preceding five (5) day period referred to in this Section 8.06(e). The fair market value for purposes of this Section 8.06(e) will then be the average of the two closest appraisals (or median values Electing Party's interest in the case of ranges of values) among the three appraisals referred to herein. When determining the fair market value of the Interests, each Appraiser shall value such Interests at the fair market value of all of the Interests in a public offering, without any minority ownership or liquidity discounts. For purposes of this Agreement, the Offeree Party shall be deemed to have received written notice of the fair market valuation (i) on the date the Offering Party and the Offeree Party agree to such valuation, if such agreement is reached, Venture or (ii) on the date it receives written notice from the applicable Appraisers of the fair market value determination under the terms of this Section 8.06(e). (f) Notwithstanding anything in this Agreement to the contrary, any Transfers proposed or effectuated pursuant to this Section 8.06 shall not be subject to the tag-along rights or the rights of first refusal set forth in Section 8.05; provided, however, that each of Ventures and Coinstar shall be able to exercise the right of first refusal set forth in Section 8.06(cy) if any credit or other loan agreement or arrangement to which the purchase price pursuant to Venture is subject prohibits such a sale loan, a preferred stock or public offering pursuant to Section 8.06(c) is less than the fair market value of the Interests determined pursuant to Section 8.06(e)other equity security upon substantially similar terms that complies with such credit or other loan agreement or arrangement.

Buy-Sell Agreement. (a) Notwithstanding Section 8.01(b), at any time after the earlier of Interests in Partnership (i) For purposes of this Section 8.6(a), the date Class A Partners and the Class B Partners must act collectively through their respective Designated Representatives. At any time during the term of this Agreement, a Designated Representative, acting on which a Member acquires, directly or indirectly, ownership of more than fifty percent (50%) behalf of the outstanding Class A Interests or (ii) June 1, 2009, either Ventures or Coinstar of Partners that it represents (the “Offering PartyOfferor Class”), may make an offer in writing (the “Offer”) to the Designated Representative of the other Class of Partners (the “Offeree Class”), which shall have the right, exercisable in its sole discretion, at any time thereafter to deliver a written notice state an amount (the “Buy-Sell NoticeValue”) to determined in the other party (sole and absolute discretion of the “Offeree Party”) indicating the Offering Party’s desire to sell Offeror Class for all of its and its Affiliates’the Assets of the Partnership. Notwithstanding the preceding sentence, however, if anyany Class of Partners is a Delinquent Class at the time, then the Delinquent Class A Interests shall not have the right to be the Offeror Class under this Section 8.6(a). An offer made pursuant to this Section 8.6 for all of the Assets of the Partnership shall constitute an irrevocable offer by the Offeror Class to the Offeree Party for fair market value as determined pursuant Class either (i) to Section 8.06(e). The Offeree Party shall then have the option to agree to purchase all (sell all, but not less than all) , of the Offering Party’s and its Affiliates’, if any, Class A Interests (and interests in the Interests Partnership owned by all Partners of the other MembersOfferor Class (including any interests held by, or Transferred to, Affiliates of such Partners) at the price described in its sole discretionSection 8.6(a)(ii) within five below, or (5ii) days of the receipt of written notice of the fair market value determination made pursuant to Section 8.06(e), and to complete such purchase within sixty (60) days after the receipt of all necessary approvals from any Governmental Entity or, if no such approvals are necessary, within sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e). (b) In the event the Offeree Party notifies the Offering Party in writing of its irrevocable and unconditional agreement to purchase all (all, but not less than all, of the interests in the Partnership owned by all Partners of the Offeror Class (including any interests held by or Transferred to Affiliates of such Partners) at the price described in Section 8.6(a)(ii) below. (ii) The Offeree Class shall have thirty (30) days after receipt of an Offer made pursuant to this Section 8.6(a) (the “Buy-Sell Election Period”) to elect, through its Designated Representative, either (A) to sell all interests in the Partnership owned by the Offeree Class at a price equal to the amount the Offeree Class would have received pursuant to a liquidation of the Partnership if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established); or (B) to buy all interests in the Partnership owned by the Offeror Class at a price equal to the amount the Offeror Class would have received pursuant to a liquidation of the Partnership if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Designated Representative of the Offeree Class fails to send notice of such election to the Designated Representative of the Offeror Class within the Buy-Sell Election Period, then the Offeree Class shall be deemed to have elected to sell all interests in the Partnership owned by the Offeree Class. Within ten (10) days after the expiration of the Buy-Sell Election Period, the purchasing Class of Partners shall deposit into escrow a non-refundable amount equal to one percent (1%) of the Offering Party’s and Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Designated Representatives, which amount shall be applied to the purchase price as of the Closing. Once the Offeree Class has made (or is deemed to have made) its Affiliates’election, if any, (1) each Partner comprising the selling Class of Partners shall be bound to sell its interest in the Partnership for its proportionate share (based upon its Class A InterestsPartnership Percentage or Class B Limited Partnership Percentage, the Offeree Party shall purchase all as applicable) of the purchase price paid by the purchasing Class of Partners, and (2) each member of the purchasing Class of Partners shall be bound to purchase its proportionate share (based upon its Class A Interests offered Partnership Percentage or Class B Limited Partnership Percentage, as applicable) of the interests in the Partnership owned by the Offering Party and its Affiliates, if any selling Class of Partners. (and shall, iii) Closing shall occur at its discretion, be entitled to purchase the Interests offices of the other Members), and the Offering Party and its Affiliates shall sell all such Class A Interests (and the other Members shall sell their Interests, in the Offeree Party’s discretion). The closing of such sale shall occur as soon as reasonably practicable (but, in any event, not more Partnership no later than sixty (60) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Assets are sold between the time that the Offeror Class initiates the procedure set forth Section 8.6(a) above and closing, the proceeds of such sale shall be retained by the Partnership and not distributed to the Partners. At the closing, the applicable interests in the Partnership owned by the selling Class of Partners shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid by the purchasing Class of Partners by wire transfer of immediately available federal funds. At the election of the Designated Representative of the purchasing Class of Partners, the applicable interests in the Partnership to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of any Partner within the purchasing Class of Partners); provided, however, that the Designated Representative of the purchasing Class of Partners shall have designated such nominee by written notice to the Designated Representative of the selling Class of Partners prior to the date of purchase. It shall be a condition of the obligation of the selling Class of Partners to proceed with any such purchase and sale of interests in the Partnership that the purchasing Class of Partners shall have obtained (A) any consents from lenders that are necessary for such purchase and sale of interests in the Partnership, and (B) releases of any guaranties of indebtedness or other obligations on behalf of or for the benefit of the Partnership executed by any Partner within the selling Class of Partners or any Affiliates of (or principals in) such selling Partner. The purchasing Class of Partners shall be responsible for the payment of costs associated with obtaining such consents, partial releases of liens and releases of guaranties. The purchasing Class of Partners, in addition to paying at the closing the purchase price, shall be obligated to loan to the Partnership an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Partnership owed as of such time to any Partner within the selling Class of Partners. (iv) Upon receipt of the purchase price, each Partner within the selling Class of Partners shall execute and deliver all necessary approvals documents reasonably required to transfer the interests in the Partnership being sold. Each Partner within the selling Class of Partners shall also execute such resignations and other documents as may be reasonably required by counsel for the Partnership to accomplish the withdrawal of each of the selling Partners as a Partner of the Partnership, and the purchasing Class of Partners shall assume all of the selling Partners’ obligations to the Partnership and any of its creditors under any loans to the Partnership permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Class of Partners. (v) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.6 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Partner to comply fully with each of said obligations, and (ii) the uniqueness of the Partnership business and Partners’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance. An example of such sale of Interest in the Partnership is set forth on Schedule 8.6 attached here. (b) Interest in Parcel (i) For purposes of this Section 8.6(b), the Class A Partners and the Class B Limited Partners must act collectively through their respective Designated Representatives. If (A) Fairways Investor or its affiliate proposes that a Parcel (the “Deferred Parcel”) be the subject of a new phase of development pursuant to the Master Development Agreement, (B) the BH Investor does not wish to proceed with development of the Deferred Parcel, (C) the Deferred Parcel is then legally divisible from any Governmental Entity orthe remaining land owned by the Partnership, if no such approvals are necessaryand (D) the Class of Partners is not a Delinquent Class at the time, not more than sixty then the Designated Representative of the Class B Limited Partners may make an offer in writing (60the “Parcel Offer”) to the Designated Representative of the Class A Partners, which shall state an amount (the “Parcel Buy-Sell Value”) to be paid to the Partnership for the Deferred Parcel determined in the sole and absolute discretion of the Class B Limited Partners; provided, however, that the Parcel Offer must be sent within thirty (30) days after the date on which the fair market value is determined pursuant BH Investor has given written notice that it does not wish to Section 8.06(e)) at a time and place specified by the Offeree Party. At such closing, the Offeree Party shall deliver to the Offering Party and its Affiliates, if any, (and to the other Members, if applicable) the purchase price payment specified pursuant to Section 8.06(e) and the Offering Party and its Affiliates, if any, (and the other Members, if applicable) shall deliver the certificates representing the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests proceed with development of the other Members, if applicable) and all other documents required to effect the sale of the Offering Party’s and its Affiliates’, if any, Class Deferred Parcel. A Interests (and the Interests of the other Members, if applicable), free and clear of any Liens (unless otherwise agreed by the Offeree Party). Each of the buyer and sellers in such transaction shall pay one-half of any transfer, stamp or similar Taxes or governmental charges in connection with each Interest transferred in such sale and shall otherwise bear its own costs and expenses in connection with such sale. (c) If within five (5) days of the receipt of written notice of the fair market value determination of the Interests pursuant to Section 8.06(e) the Offeree Party has not provided to the Offering Party in writing an irrevocable and unconditional agreement to purchase or has declined to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests, or if the Offeree Party has failed to complete a transaction to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests within the applicable period set forth in Section 8.06(b), the Offering Party shall have, for a period of one (1) year following the date on which the Offering Party can first exercise its rights Parcel Offer made pursuant to this Section 8.06(c8.6(b)(i) (with such one-year period to be extended for additional three-month periods if a Deferred Parcel shall constitute an irrevocable offer and consent by the Offering Party is diligently pursuing a sale or public offering of the Interests or a sale of all or substantially all of the Company’s assets), the right to cause and direct (including control of the sale or public offering process) a sale of the Interests or all or substantially all of the assets of the Company to any unaffiliated Person at the best price then attainable or a public offering of all of the Interests (which may include conversion of the Interests into alternate securities representing equivalent economic value) at the best price then attainable, without any limitations imposed by this Agreement other than Class B Limited Partners either (i) Section 8.02(b)(i)to purchase all, (ii) a right of first refusal by the Offeree Party pursuant to Section 8.05(b)(i) and (d) (provided that such rights of first refusal shall exist only if the purchase price pursuant to such sale or public offering is less than the fair market value of the Interests determined pursuant to Section 8.06(e)), and (iii) the right of the holders of Eligible Class B Vested Interests to receive consideration (or, in the case of a public offering, a ratio at which each Eligible Class B Vested Interest will be converted into the equity securities that are publicly offered) equal to the fair market value of the Eligible Class B Vested Interests as determined by approval of the Board of Managers pursuant to Section 6.03(a), based on the value of the Class A Interests to be purchased by the Sale Purchaser, and the Members shall have the obligation to deliver to such Person or offer in such public offering, all (but not less than all) of their Interests (other than any Interests held by any Member purchasing all , of the other Interests in such saleDeferred Parcel from the Partnership for the Parcel Buy-Sell Value; or (ii) orto have the Partnership sell all, in the case of a sale of all or substantially all but not less than all, of the Company’s assets, Deferred Parcel to the Offeree Party shall have the obligation to cause Representatives appointed by the Offeree Party to vote in favor of such asset sale; provided that the Offering Party has approved such transaction. In any such sale or offering, all of the holders of Class A Interests must receive Partners for the same form and amount of consideration for such Class A Interests as all other holders of Class A Interests, or if any Member is given an option as to the form and amount of consideration to be received, all holders of Class A Interests must be given the same optionParcel Buy-Sell Value. (dii) If the Company is able to effect a sale or a public offering of the Interests that complies with Section 8.06(c), then the Company shall arrange for the consideration to be paid by the proposed purchaser of the Interests or in such public offering directly to the Members upon delivery by the Members of certificates representing their Interests being sold under this Section 8.06, duly endorsed, together with such other documents as the Offering Party, the Company and the purchaser in such sale of Interests or underwriter in such public offering may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser or underwriter, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser or underwriter. If the Company is able to effect a sale of all or substantially all of its assets that complies with Section 8.06(c), then the Company shall arrange for the consideration paid to it to be paid to the Members upon delivery by the Members of such documents as the Offering Party, the Company and the purchaser of such assets may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser. All costs and expenses incurred by the Members in connection with any such sale of Interests or all or substantially all of the Company’s assets or public offering shall be borne by the Company. In the event the other Members fail to deliver their Interests and such other documents reasonably requested by the purchaser or underwriter as a condition to the closing of such sale or offering, as applicable, or breach any representations, warranties or pre-closing covenants required by the purchaser or underwriter and such failure or breach results in the nonsatisfaction of a condition to the closing of such sale or offering that the purchaser or underwriter does not waive, then (i) the Offering Party and those Members that delivered their Interests and the documents reasonably requested by the purchaser or underwriter (provided that such Member(s) include at least one Member holding The Class A Interests), as applicable, Partners shall be free to sell their Interests to the purchaser or offer their Interests in a public offering, or the Company shall be free to sell all or substantially all of its assets, without Liability to the breaching party and shall not be subject to any restrictions on Transfer of Interests under this Agreement from the date of such breach, (ii) the breaching party shall be liable for (and shall hold the non-breaching party harmless with respect to) such breach, and (iii) any sale or offering shall not limit or waive in any respect any claim, right or cause of action that such Members may have against the breaching party in respect of such breach. (e) The Offering Party and the Offeree Party agree to negotiate in good faith the value of the Interests for thirty (30) days after the date receipt of a Parcel Offer (the “Parcel Buy-Sell NoticeElection Period”) made pursuant to this Section 8.6(b) to elect either (A) to cause the Partnership to sell its interest in the Deferred Parcel to the Class B Limited Partners (or their designee) for the Parcel Buy-Sell Value; or (B) to cause the Partnership to sell its interest in the Deferred Parcel to the Class A Partners (or their designee) for the Parcel Buy-Sell Value. If the Offering Party and Designated Representative of the Offeree Party are not in agreement with respect Class A Partners fails to send notice of such election to the fair market value Designated Representative of the Interests for purposes of this Section 8.06 Class B Limited Partners within such timethe Parcel Buy-Sell Election Period, then the Offering Party and the Offeree Party will each appoint a nationally recognized investment banking firm that is not an Affiliate of such party (an “Appraiser”) to appraise the value of the Interests. The appraisals will be completed within twenty (20) days of the earlier of the dates on which either the Offering Party or the Offeree Party appoints an Appraiser, in each case pursuant to the foregoing sentence. If the value (or, in the case of an appraisal that generates a range of values, the median value of such appraisal) of each appraisal is within ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the appraisals will be averaged with the resulting value being deemed to be the fair market value for purposes of this Section 8.06. If the value (or median value in the case of a range) of one appraisal is more than ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the Offering Party and the Offeree Party will attempt to agree upon the fair market value of the Interests for a five (5) day period following the expiration of the immediately preceding twenty (20) day period referred to in this Section 8.06(e). If the Offering Party and the Offeree Party are unable to agree on the fair market value of the Interests, then the two Appraisers will jointly retain a third Appraiser, to complete a third appraisal within twenty (20) days immediately following the expiration of the immediately preceding five (5) day period referred to in this Section 8.06(e). The fair market value for purposes of this Section 8.06(e) will then be the average of the two closest appraisals (or median values in the case of ranges of values) among the three appraisals referred to herein. When determining the fair market value of the Interests, each Appraiser shall value such Interests at the fair market value of all of the Interests in a public offering, without any minority ownership or liquidity discounts. For purposes of this Agreement, the Offeree Party Class A Partners shall be deemed to have received written notice elected to cause the Partnership to sell its interest in the Deferred Parcel to the Class B Limited Partners (or their designee). Within ten (10) days after the expiration of the fair market valuation Parcel Buy-Sell Election Period, the purchasing Class of Partners shall deposit into escrow a non-refundable amount equal to one percent (1%) of the Parcel Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Designated Representatives, which amount shall be applied to the purchase price as of the Closing. (iii) Closing of the purchase and sale of the Deferred Parcel shall occur at the offices of the Partnership no later than thirty (30) days following the date after the expiration of the Parcel Buy-Sell Election Period. At the closing, the Partnership shall convey its interest in the Deferred Parcel to the designee of the purchasing Class of Partners free of voluntary liens, and the purchase price shall be paid to the Partnership by wire transfer of immediately available federal funds. It shall be a condition of the Partnership’s obligation to convey the Deferred Parcel that the purchasing Class of Partners shall have obtained (A) any consents or partial releases of liens from lenders that are necessary for the Partnership to so convey the Deferred Parcel, and (B) releases of any debt instruments or guaranties of indebtedness or other obligations of or for the benefit of the Partnership executed in respect to the Deferred Parcel by the Partnership or any Partner (or any Affiliates of or principals in such Partner) that is not a member of the purchasing Class of Partners. The purchasing Class of Partners shall be responsible for the payment of costs associated with obtaining such consents, partial releases of liens and releases of guaranties. The purchasing Class of Partners shall also be responsible for paying the costs of any title insurance policy or survey desired to be obtained by the purchasing Class of Partners in respect of the Deferred Parcel. At closing, there shall be customary prorations of taxes and other items customarily prorated upon the sale of property similar to the Deferred Parcel. (iv) Upon receipt of the purchase price, the Partnership shall execute and deliver a special warranty deed conveying the Deferred Parcel to the designee of the purchasing Class of Partners. (v) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.6(b) is inadequate in view of (i) on the date complexities and uncertainties in measuring the Offering Party actual damages that would be sustained by reason of the failure of a Partner to comply fully with each of said obligations, and the Offeree Party agree to such valuation, if such agreement is reached, or (ii) on the date it receives written notice from the applicable Appraisers uniqueness of the fair market value determination under Deferred Parcel and the terms of this Section 8.06(e). (f) Notwithstanding anything in this Agreement to the contraryPartnership business and Partners’ relationship. Accordingly, any Transfers proposed or effectuated pursuant to this Section 8.06 shall not be subject to the tag-along rights or the rights of first refusal set forth in Section 8.05; provided, however, that each of Ventures the aforesaid obligations shall be, and Coinstar shall be able to exercise the right of first refusal set forth in Section 8.06(c) if the purchase price pursuant to a sale or public offering pursuant to Section 8.06(c) is less than the fair market value of the Interests determined pursuant to Section 8.06(e)hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Notwithstanding Section 8.01(b), at 5.4.1 At any time after August 10, 2003, Lotus or ECC may, by written notice to the earlier other (the "Buy/Sell Notice"), offer to either buy all (but not less than all) of the other party's Membership Interests pursuant to this Section 5.4 or to sell all (but not less than all) of its Membership Interests to the other party pursuant to this Section 5.4 (any party, be it Lotus or ECC, submitting such a Buy/Sell Notice is herein referred to as the "Submitting Party" and any party, be it Lotus or ECC, receiving such a Buy/Sell Notice is herein referred to as the "Receiving Party"). Such Buy/Sell Notice shall state that it is being submitted pursuant to this Section 5.4 and shall set forth the material terms and conditions pursuant to which the Submitting Party wishes to buy or sell and a proposed closing date for any such sale or purchase, which closing date shall (unless otherwise agreed by the parties) not be less than thirty (30) days after submission of the Buy/Sell Notice nor more than sixty (60) days after such submission. Within thirty (30) days of having received such Buy/Sell Notice from the Submitting Party, the Receiving Party may either (i) provide the date on which a Member acquires, directly or indirectly, ownership Submitting Party with written notice of more than fifty percent (50%) its acceptance of the outstanding Class A Interests Submitting Party's offer in which case the transaction contemplated by the Buy/Sell notice shall be consummated pursuant to the terms set forth therein and in this Section 5.4, or (ii) June 1in the case of a Buy/Sell Notice pursuant to which the Submitting Member is offering to buy all of the Receiving Member's Membership Interests, 2009, either Ventures or Coinstar (provide the “Offering Party”) shall have the right, exercisable in its sole discretion, at any time thereafter to deliver Submitting Party with a written notice (the “Buy-Sell Notice”) to the other party (the “Offeree Party”) indicating the Offering Party’s desire to sell all of its and its Affiliates’, if any, Class A Interests to the Offeree Party for fair market value as determined pursuant to Section 8.06(e). The Offeree Party shall then have the option to agree electing to purchase all (but not less than all) of the Offering Submitting Party’s 's Membership Interest, in which case the Submitting Party's Membership Interest shall be sold to the Receiving Party pursuant to the terms and its Affiliates’conditions set forth in the Buy/Sell Notice and in this Section 5.4, if any, Class A Interests or (and iii) in the Interests case of a Buy/Sell Notice pursuant to which the Submitting Member is offering to sell all of the other MembersSubmitting Member's Membership Interests to the Receiving Member, in its sole discretion) within five (5) days of provide the receipt of Submitting Member with a written notice of the fair market value determination made pursuant electing to Section 8.06(e), and to complete such purchase within sixty (60) days after the receipt of all necessary approvals from any Governmental Entity or, if no such approvals are necessary, within sixty (60) days after the date on which the fair market value is determined pursuant to Section 8.06(e). (b) In the event the Offeree Party notifies the Offering Party in writing of its irrevocable and unconditional agreement to purchase sell all (but not less than all) of the Offering Party’s Receiving Member's Membership Interests to the Submitting Member pursuant to the terms set forth in the Buy/Sell Notice and its Affiliates’, if any, Class A Interests, in this Section 5.4. If the Offeree Receiving Party shall purchase all does neither of the Class A Interests offered by the Offering Party and its Affiliates, if any (and shall, at its discretion, be entitled to purchase the Interests of the other Members), and the Offering Party and its Affiliates shall sell all such Class A Interests (and the other Members shall sell their Interests, three events described in the Offeree Party’s discretion)preceding sentence, it shall be deemed to have accepted the Submitting Member's offer set forth in the Buy/Sell Notice. The applicable purchase price in any transaction triggered by a Buy/Sell Notice shall be an amount of cash (payable at the closing of such sale shall occur as soon as reasonably practicable transaction) equal to the greater of (butA) the sum of $2,650,000 plus any cash Capital Contributions made by the selling Member (be it ECC or Lotus) pursuant to Section 2.2, in any eventabove (i.e., not more than including the initial Capital Contributions of the Members set forth in Section 2.1, above, such initial Capital Contributions, if in the form of cash, being included in the $2,650,000 figure set forth above), or (B) the product of the Presumed Enterprise Value and the selling Member's Percentage Interest. 5.4.2 Notwithstanding the foregoing, however, any Membership Interest which is transferred from Lotus to ECC or from ECC to Lotus pursuant to the procedures of this Section 5.4, shall not include the selling party's (be it a Submitting Party or a Receiving Party) rights to receive any Priority Amounts from the Company; instead, within sixty (60) days after of the receipt close of all necessary approvals such transfer of a Membership Interest, the selling member (again, be it a Submitting Party or a Receiving Party) shall receive from any Governmental Entity orthe Company a final distribution consisting of previously accrued Priority Amounts with respect to which such party has, if no on or before such approvals are necessaryclosing date, received a net allocation of Net Income from the Company, but only to the extent such party has not more than sixty (60) days after previously received distributions from the date on which the fair market value is determined Company pursuant to Section 8.06(e)) at a time and place specified by the Offeree Party. At such closing, the Offeree Party shall deliver to the Offering Party and its Affiliates, if any, (and to the other Members, if applicable) the purchase price payment specified pursuant to Section 8.06(e) and the Offering Party and its Affiliates, if any, (and the other Members, if applicable) shall deliver the certificates representing the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable) and all other documents required to effect the sale of the Offering Party’s and its Affiliates’, if any, Class A Interests (and the Interests of the other Members, if applicable4.6.2(a), free and clear of any Liens (unless otherwise agreed by the Offeree Party). Each of the buyer and sellers in such transaction shall pay one-half of any transfer, stamp or similar Taxes or governmental charges in connection with each Interest transferred in such sale and shall otherwise bear its own costs and expenses in connection with such saleabove. (c) If within five (5) days of the receipt of written notice of the fair market value determination of the Interests pursuant to Section 8.06(e) the Offeree Party has not provided to the Offering Party in writing an irrevocable and unconditional agreement to purchase or has declined to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests, or if the Offeree Party has failed to complete a transaction to purchase the Offering Party’s and its Affiliates’, if any, Class A Interests within the applicable period set forth in Section 8.06(b), the Offering Party shall have, for a period of one (1) year following the date on which the Offering Party can first exercise its rights pursuant to this Section 8.06(c) (with such one-year period to be extended for additional three-month periods if the Offering Party is diligently pursuing a sale or public offering of the Interests or a sale of all or substantially all of the Company’s assets), the right to cause and direct (including control of the sale or public offering process) a sale of the Interests or all or substantially all of the assets of the Company to any unaffiliated Person at the best price then attainable or a public offering of all of the Interests (which may include conversion of the Interests into alternate securities representing equivalent economic value) at the best price then attainable, without any limitations imposed by this Agreement other than (i) Section 8.02(b)(i), (ii) a right of first refusal by the Offeree Party pursuant to Section 8.05(b)(i) and (d) (provided that such rights of first refusal shall exist only if the purchase price pursuant to such sale or public offering is less than the fair market value of the Interests determined pursuant to Section 8.06(e)), and (iii) the right of the holders of Eligible Class B Vested Interests to receive consideration (or, in the case of a public offering, a ratio at which each Eligible Class B Vested Interest will be converted into the equity securities that are publicly offered) equal to the fair market value of the Eligible Class B Vested Interests as determined by approval of the Board of Managers pursuant to Section 6.03(a), based on the value of the Class A Interests to be purchased by the Sale Purchaser, and the Members shall have the obligation to deliver to such Person or offer in such public offering, all (but not less than all) of their Interests (other than any Interests held by any Member purchasing all of the other Interests in such sale) or, in the case of a sale of all or substantially all of the Company’s assets, the Offeree Party shall have the obligation to cause Representatives appointed by the Offeree Party to vote in favor of such asset sale; provided that the Offering Party has approved such transaction. In any such sale or offering, all of the holders of Class A Interests must receive the same form and amount of consideration for such Class A Interests as all other holders of Class A Interests, or if any Member is given an option as to the form and amount of consideration to be received, all holders of Class A Interests must be given the same option. (d) If the Company is able to effect a sale or a public offering of the Interests that complies with Section 8.06(c), then the Company shall arrange for the consideration to be paid by the proposed purchaser of the Interests or in such public offering directly to the Members upon delivery by the Members of certificates representing their Interests being sold under this Section 8.06, duly endorsed, together with such other documents as the Offering Party, the Company and the purchaser in such sale of Interests or underwriter in such public offering may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser or underwriter, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser or underwriter. If the Company is able to effect a sale of all or substantially all of its assets that complies with Section 8.06(c), then the Company shall arrange for the consideration paid to it to be paid to the Members upon delivery by the Members of such documents as the Offering Party, the Company and the purchaser of such assets may reasonably agree on or request, including documents providing for representations, warranties and indemnifications for the benefit of the purchaser, provided that the Offering Party is also providing, as applicable, equivalent documentation to the purchaser. All costs and expenses incurred by the Members in connection with any such sale of Interests or all or substantially all of the Company’s assets or public offering shall be borne by the Company. In the event the other Members fail to deliver their Interests and such other documents reasonably requested by the purchaser or underwriter as a condition to the closing of such sale or offering, as applicable, or breach any representations, warranties or pre-closing covenants required by the purchaser or underwriter and such failure or breach results in the nonsatisfaction of a condition to the closing of such sale or offering that the purchaser or underwriter does not waive, then (i) the Offering Party and those Members that delivered their Interests and the documents reasonably requested by the purchaser or underwriter (provided that such Member(s) include at least one Member holding Class A Interests), as applicable, shall be free to sell their Interests to the purchaser or offer their Interests in a public offering, or the Company shall be free to sell all or substantially all of its assets, without Liability to the breaching party and shall not be subject to any restrictions on Transfer of Interests under this Agreement from the date of such breach, (ii) the breaching party shall be liable for (and shall hold the non-breaching party harmless with respect to) such breach, and (iii) any sale or offering shall not limit or waive in any respect any claim, right or cause of action that such Members may have against the breaching party in respect of such breach. (e) The Offering Party and the Offeree Party agree to negotiate in good faith the value of the Interests for thirty (30) days after the date of the Buy-Sell Notice. If the Offering Party and the Offeree Party are not in agreement with respect to the fair market value of the Interests for purposes of this Section 8.06 within such time, then the Offering Party and the Offeree Party will each appoint a nationally recognized investment banking firm that is not an Affiliate of such party (an “Appraiser”) to appraise the value of the Interests. The appraisals will be completed within twenty (20) days of the earlier of the dates on which either the Offering Party or the Offeree Party appoints an Appraiser, in each case pursuant to the foregoing sentence. If the value (or, in the case of an appraisal that generates a range of values, the median value of such appraisal) of each appraisal is within ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the appraisals will be averaged with the resulting value being deemed to be the fair market value for purposes of this Section 8.06. If the value (or median value in the case of a range) of one appraisal is more than ten percent (10%) of the value of the other appraisal (or median value in the case of a range), then the Offering Party and the Offeree Party will attempt to agree upon the fair market value of the Interests for a five (5) day period following the expiration of the immediately preceding twenty (20) day period referred to in this Section 8.06(e). If the Offering Party and the Offeree Party are unable to agree on the fair market value of the Interests, then the two Appraisers will jointly retain a third Appraiser, to complete a third appraisal within twenty (20) days immediately following the expiration of the immediately preceding five (5) day period referred to in this Section 8.06(e). The fair market value for purposes of this Section 8.06(e) will then be the average of the two closest appraisals (or median values in the case of ranges of values) among the three appraisals referred to herein. When determining the fair market value of the Interests, each Appraiser shall value such Interests at the fair market value of all of the Interests in a public offering, without any minority ownership or liquidity discounts. For purposes of this Agreement, the Offeree Party shall be deemed to have received written notice of the fair market valuation (i) on the date the Offering Party and the Offeree Party agree to such valuation, if such agreement is reached, or (ii) on the date it receives written notice from the applicable Appraisers of the fair market value determination under the terms of this Section 8.06(e). (f) Notwithstanding anything in this Agreement to the contrary, any Transfers proposed or effectuated pursuant to this Section 8.06 shall not be subject to the tag-along rights or the rights of first refusal set forth in Section 8.05; provided, however, that each of Ventures and Coinstar shall be able to exercise the right of first refusal set forth in Section 8.06(c) if the purchase price pursuant to a sale or public offering pursuant to Section 8.06(c) is less than the fair market value of the Interests determined pursuant to Section 8.06(e).