Buy/Sell Arrangements. (a) At any time following the second Anniversary of the date hereof (the "2nd Anniversary Date"), either the Reckson Group Agent or the NYSTRS Group Agent (as applicable, the "Offeror Member") may tender to the Group Agent of the Unaffiliated Members (for purposes of this Section 10.02 such Unaffiliated Members are collectively, the "Offeree Member") a good faith, written offer (a "Buy/Sell Offer Notice") in which it offers either to sell all of its Interest to the Offeree Member or to purchase from the Offeree Member all of its Interest (it being acknowledged that if the Reckson Members are transferring their "Interest" hereunder, the Reckson Members shall transfer and the acquiring party shall acquire the Total Reckson Interest and provided, that during the period commencing on the 2nd Anniversary Date through and including March 31, 2005 a Buy/Sell Offer Notice may only be delivered if a dispute shall exist with respect to the Major Decision set forth in Section 7.03(b) and the dispute shall not have been resolved after 60 days of good faith negotiation between the members of the Management Committee (the periods and circumstances described above during which a Buy/Sell Offer Notice may not be delivered are collectively, the "Lockout Period"). The Buy/Sell Offer Notice shall provide a price (the "Buy/Sell Price") that the Offeror Member would be willing to sell the Property, and the LLC Accountants' calculation (subject to the review of any Unaffiliated Member) of the amount that would be distributed to (x) the NYSTRS Members (the "NYSTRS Interest Amount"), and (y) the Reckson Members (the "Reckson Interest Amount"), if the Property were sold for cash in an amount equal to the Buy-Sell Price and the purchaser assumed all Secured Liabilities. The Offeree Member shall give written notice (a "Buy/Sell Response Notice") within 60 days after the receipt of the Buy/Sell Offer Notice that the Offeree Member will either (x) sell its entire Interest to the Offeror Member for an amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as applicable or (y) purchase the entire Interest of the Offeror Member for an amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as applicable (the transactions contemplated by (x) and (y) is a "Buy/Sell Transaction"). If the Offeree Member elects in the Buy-Sell Response Notice to purchase the entire Interest of the Offeror Member, the Offeree Member shall, simultaneously with the delivery of the Buy/Sell Response Notice, deliver to the New York office of one of the five largest title insurance companies in the United States (the "Buy/Sell Escrow Agent") (to be designated by the party transferring its Interest) a Deposit (the "Buy/Sell Deposit") equal to 5% (as reasonably estimated by the party purchasing the Interest) of whichever of the NYSTRS Interest Amount or the Reckson Interest Amount is being purchased. If the Offeree Member shall elect in the Buy/Sell Response Notice to sell its Interest to the Offeror Member, within 10 days following the Offeror Member's receipt of the Buy/Sell Response Notice, the Offeror Member shall deliver to the Buy/Sell Escrow Agent the Buy/Sell Deposit. Failure to respond within the 60-day period set forth above shall be conclusively deemed to be an election by the Offeree Member to sell its entire Interest. Failure of a Member to timely deliver the Deposit shall cause such Member to be treated as a Purchasing Buy/Sell Member which is a defaulting Member under paragraph (c) below. The Buy/Sell Offer Notice and the Buy/Sell Response Notice (or deemed response) shall constitute a binding agreement of purchase and sale between the Offeree Member and the Offeror Member in accordance with the terms hereof. (b) The closing of the Buy/Sell Transaction shall be on a date (the "Buy/Sell Closing Date") and at a place designated by the purchasing Member (or its designee) (the "Purchasing Buy/Sell Member") which is not more than 120 days after the expiration of the 60-day election period (such Buy/Sell Closing Date to be determined by the Purchasing Buy/Sell Member on no less than 15 days prior notice to the Selling Buy/Sell Member, or if no such notice is sent, then on the 105th day following the end of the 60-day election period set forth in paragraph (a) above) (subject to an adjournment of the closing as provided in clause (vii) below). Prior to the Buy/Sell Closing Date, the Members shall cooperate in the preparation and filing of any regulatory filings which may be necessary. At the closing: (i) the selling Member (the "Selling Buy/Sell Member") shall deliver to the Purchasing Buy/Sell Member a duly executed and acknowledged instrument of assignment transferring the Interest of the Selling Buy/Sell Member to the Purchasing Buy/Sell Member free and clear of all liens and encumbrances (other than the Secured Liabilities); (ii) the Selling Buy/Sell Member and the Purchasing Buy/Sell Member shall each pay their pro rata share, based upon their respective Percentage Interests, of all transfer, gains, stamp or similar taxes, if any, due in connection with the conveyance of the Selling Buy/Sell Member's Interest; (iii) the Purchasing Buy/Sell Member shall pay the purchase price to the Selling Buy/Sell Member in immediately available funds and shall deliver to the Selling Buy/Sell Member a duly executed agreement (which shall survive the closing under this Section 10.02(b)) indemnifying the Selling Buy/Sell Member against (1) claims based upon events arising from or in connection with the LLC, the Property Owner or the Property from and after the Buy/Sell Closing Date, and (2) except as provided under clause (viii) below, any personal recourse liabilities for which the Members are jointly and severally liable which accrue from and after the Buy/Sell Closing Date; provided that Purchasing Buy-Sell Member's indemnity obligation under this paragraph (iii) shall be limited to its direct or indirect interest in the Property (or any Applicable Entity) (and any proceeds resulting from the sale of all or any portion of such interest); (iv) Net Ordinary Cash Flow and Net Extraordinary Cash Flow up to the Buy/Sell Closing Date shall be distributed in accordance with the provisions of Section 6.05 (provided, if the Total Reckson Interest is being sold, "Net Ordinary Cash Flow" and "Net Extraordinary Cash Flow" shall be distributed under all Reckson Entity Agreements) which provisions shall survive the closing pursuant hereto for purposes of making or correcting any customary closing adjustments (the parties acknowledge that if the Total Reckson Interest is being sold the phrases "Capital Contributions", "Default Loans" and "Net Extraordinary Cash Flow" shall have the meanings set forth in each Reckson Entity Agreement);
Appears in 1 contract
Samples: Operating Agreement (Reckson Associates Realty Corp)
Buy/Sell Arrangements. (a) At any time following (xi) the second Anniversary Buy/Sell Lockout End Date with respect to the NorthStar Member or (xii) the occurrence (and continuation) of a TFG Buy/Sell Trigger Event after the date hereof Buy/Sell Lockout End Date with respect to the TFG Member, such Member (the "2nd Anniversary Date"“Offeror Member”) may tender, subject to Section 15.01(f), either the Reckson Group Agent or the NYSTRS Group Agent (as applicable, the "Offeror Member") may tender to the Group Agent of other Member (the Unaffiliated Members (for purposes of this Section 10.02 such Unaffiliated Members are collectively, the "“Offeree Member"”) a good faith, written offer (a "“Buy/Sell Offer Notice"”) in which it offers either to sell all of its Interest the Interests of the Offeror Member to the Offeree Member or to purchase from the Offeree Member all of its Interest (it being acknowledged that if the Reckson Members are transferring their "Interest" hereunder, Interests of the Reckson Members shall transfer and the acquiring party shall acquire the Total Reckson Interest and Offeree Member; provided, that during the period commencing on the 2nd Anniversary Date through and including March 31, 2005 a any such Buy/Sell Offer Notice may only shall be delivered if accompanied by the simultaneous delivery to a dispute national title insurance company which shall exist with respect to be designated by the Major Decision set forth Offeror Member in Section 7.03(b) and the dispute shall not have been resolved after 60 days of good faith negotiation between the members of the Management Committee (the periods and circumstances described above during which a Buy/Sell Offer Notice may not (the “Buy/Sell Escrow Agent”) a deposit (the “Buy/Sell Deposit”) equal to three percent (3%) of whichever of the NorthStar Interest Amount or the TFG Interest Amount corresponds to the Offeror Member (i.e., three percent (3%) of the amount the Offeror Member would have to pay if the Offeror Member turns out to be delivered are collectively, the "Lockout Period"Purchasing Buy/Sell Member). The Buy/Sell Offer Notice shall provide a price (the "“Buy/Sell Price"”) that for which the Offeror Member would be willing to sell the PropertyProperties, and the LLC Accountants' calculation (subject to the review of any Unaffiliated Member) of the amount that would be distributed to (x) the NYSTRS Members NorthStar Member (the "NYSTRS “NorthStar Interest Amount"”), and (y) the Reckson Members TFG Member (the "Reckson “TFG Interest Amount"”), if the Property Properties were sold for cash in an amount equal to the Buy-Sell Price and the purchaser assumed all Secured Liabilities. The Offeree Member shall give written notice (a "Buy/Sell Response Notice") within 60 days after Price on the receipt of date which the Buy/Sell Offer Notice that is delivered (or, for purposes of assumptions relating to whether the Offeree Member will either (xapplicable Mortgage Loan(s) sell its entire Interest are or are not open to the Offeror Member for an amount equal to the NYSTRS Interest Amount or the Reckson Interest Amountfree prepayment at par, as applicable or (y) purchase the entire Interest of the Offeror Member for an amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as applicable (the transactions contemplated by (x) and (y) is a "Buy/Sell Transaction"). If the Offeree Member elects in the Buy-Sell Response Notice to purchase the entire Interest of the Offeror Member, the Offeree Member shall, simultaneously with the delivery of the Buy/Sell Response Notice, deliver to the New York office of one of the five largest title insurance companies in the United States (the "Buy/Sell Escrow Agent") (to be designated by the party transferring its Interest) a Deposit (the "Buy/Sell Deposit") equal to 5% (as reasonably estimated by the party purchasing the Interest) of whichever of the NYSTRS Interest Amount or the Reckson Interest Amount is being purchased. If the Offeree Member shall elect in the Buy/Sell Response Notice to sell its Interest to the Offeror Member, within 10 days following the Offeror Member's receipt of the Buy/Sell Response Notice, the Offeror Member shall deliver to the Buy/Sell Escrow Agent the Buy/Sell Deposit. Failure to respond within the 60-day period set forth above shall be conclusively deemed to be an election by the Offeree Member to sell its entire Interest. Failure of a Member to timely deliver the Deposit shall cause such Member to be treated as a Purchasing Buy/Sell Member which is a defaulting Member under paragraph (c) below. The Buy/Sell Offer Notice and the Buy/Sell Response Notice (or deemed response) shall constitute a binding agreement of purchase and sale between the Offeree Member and the Offeror Member in accordance with the terms hereof.
(b) The closing of the Buy/Sell Transaction shall be on a date (the "Buy/Sell Closing Date") and at a place designated by the purchasing Member (or its designee) (the "Purchasing Buy/Sell Member") which is not more than 120 days after the expiration of the 60-day election period (such Buy/Sell Closing Date to be determined by the Purchasing Buy/Sell Member on no less than 15 days prior notice to the Selling Buy/Sell Member, or if no such notice is sent, then on the 105th day following the end of the 60-day election period set forth in paragraph (a) above) (subject to an adjournment of the closing as provided in clause (vii) below). Prior to the Buy/Sell Closing Date), all customary transaction costs relating to such a sale were paid and all other liabilities of the Venture were discharged, the Members shall cooperate in the preparation Venture was liquidated and filing of any regulatory filings which may be necessary. At the closing:
(i) the selling Member (the "Selling Buy/Sell Member") shall deliver to the Purchasing Buy/Sell Member a duly executed and acknowledged instrument of assignment transferring the Interest all remaining assets of the Selling Buy/Sell Member to the Purchasing Buy/Sell Member free and clear of all liens and encumbrances (other than the Secured Liabilities);
(ii) the Selling Buy/Sell Member and the Purchasing Buy/Sell Member shall each pay their pro rata share, based upon their respective Percentage Interests, of all transfer, gains, stamp or similar taxes, if any, due in connection with the conveyance of the Selling Buy/Sell Member's Interest;
(iii) the Purchasing Buy/Sell Member shall pay the purchase price to the Selling Buy/Sell Member in immediately available funds and shall deliver to the Selling Buy/Sell Member a duly executed agreement (which shall survive the closing under this Section 10.02(b)) indemnifying the Selling Buy/Sell Member against (1) claims based upon events arising from or in connection with the LLC, the Property Owner or the Property from and after the Buy/Sell Closing Date, and (2) except as provided under clause (viii) below, any personal recourse liabilities for which the Members are jointly and severally liable which accrue from and after the Buy/Sell Closing Date; provided that Purchasing Buy-Sell Member's indemnity obligation under this paragraph (iii) shall be limited to its direct or indirect interest in the Property (or any Applicable Entity) (and any proceeds resulting from the sale of all or any portion of such interest);
(iv) Net Ordinary Cash Flow and Net Extraordinary Cash Flow up to the Buy/Sell Closing Date shall be Venture were distributed in accordance with the provisions of Section 6.05 (11.03; provided, that in computing the NorthStar Interest Amount and the TFG Interest Amount, (A) there shall be no deduction for any deemed transfer, stamp or similar taxes or the establishment of any reserves under Section 11.03(b), (B) if the Total Reckson Interest then existing applicable Mortgage Loan(s) are assumable by a Qualifying Buyer, then calculation shall assume that such applicable Mortgage Loan(s) would be assumed by a Qualifying Buyer who would pay any applicable loan assumption fees and related costs, and (C) if (1) the NorthStar Member is being soldthe Offeror Member, "Net Ordinary Cash Flow" or (2) the TFG Member is the Offeror Member at a time when the Mortgage Loan(s) and "Net Extraordinary Cash Flow" shall the mortgage loan(s) secured by any of the Master Lease Properties with which any of the Mortgage Loan(s) are cross-collateralized or cross-defaulted are open to free prepayment at par, then (x) any required repayment of such mortgage loan(s) secured by any of the Master Lease Properties at par and (y) any required release premium or portion thereof that would otherwise be distributed under all Reckson Entity Agreementspayable in respect of the applicable Mortgage Loan(s) which provisions shall survive that would be applied to pay down the closing pursuant hereto for purposes mortgage loan(s) secured by any of making or correcting any customary closing adjustments (the parties acknowledge that if the Total Reckson Interest is being sold the phrases "Capital Contributions"Master Lease Properties, "Default Loans" and "Net Extraordinary Cash Flow" shall have the meanings set forth in each Reckson Entity Agreement);case shall not be taken into account.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Buy/Sell Arrangements. (a) At any time following (i) the second Anniversary Buy/Sell Lockout End Date with respect to the NorthStar Member or (ii) the occurrence (and continuation) of a TFG Buy/Sell Trigger Event after the date hereof Buy/Sell Lockout End Date with respect to the TFG Member, such Member (the "2nd Anniversary Date"“Offeror Member”) may tender, subject to Section 15.01(f), either the Reckson Group Agent or the NYSTRS Group Agent (as applicable, the "Offeror Member") may tender to the Group Agent of other Member (the Unaffiliated Members (for purposes of this Section 10.02 such Unaffiliated Members are collectively, the "“Offeree Member"”) a good faith, written offer (a "“Buy/Sell Offer Notice"”) in which it offers either to sell all of its Interest the Interests of the Offeror Member to the Offeree Member or to purchase from the Offeree Member all of its Interest (it being acknowledged that if the Reckson Members are transferring their "Interest" hereunder, Interests of the Reckson Members shall transfer and the acquiring party shall acquire the Total Reckson Interest and Offeree Member; provided, that during the period commencing on the 2nd Anniversary Date through and including March 31, 2005 a any such Buy/Sell Offer Notice may only shall be delivered if accompanied by the simultaneous delivery to a dispute national title insurance company which shall exist with respect to be designated by the Major Decision set forth Offeror Member in Section 7.03(b) and the dispute shall not have been resolved after 60 days of good faith negotiation between the members of the Management Committee (the periods and circumstances described above during which a Buy/Sell Offer Notice may not (the “Buy/Sell Escrow Agent”) a deposit (the “Buy/Sell Deposit”) equal to three percent (3%) of whichever of the NorthStar Interest Amount or the TFG Interest Amount corresponds to the Offeror Member (i.e., three percent (3%) of the amount the Offeror Member would have to pay if the Offeror Member turns out to be delivered are collectively, the "Lockout Period"Purchasing Buy/Sell Member). The Buy/Sell Offer Notice shall provide a price (the "“Buy/Sell Price"”) that for which the Offeror Member would be willing to sell the PropertyFacilities, and the LLC Accountants' calculation (subject to the review of any Unaffiliated Member) of the amount that would be distributed to (x) the NYSTRS Members NorthStar Member (the "NYSTRS “NorthStar Interest Amount"”), and (y) the Reckson Members TFG Member (the "Reckson “TFG Interest Amount"”), if the Property Facilities were sold for cash in an amount equal to the Buy-/Sell Price on the date which the Buy/Sell Offer Notice is delivered, all customary transaction costs relating to such a sale were paid and all other liabilities of the Venture were discharged, the Venture was liquidated and all remaining assets of the Venture were distributed in accordance with the provisions of Section 11.03; provided, that in computing the NorthStar Interest Amount and the purchaser assumed all Secured Liabilities. TFG Interest Amount, there shall be no deduction for any deemed transfer, stamp or similar taxes or the establishment of any reserves under Section 11.03(b).
(a) The Offeree Member shall give written notice (a "an “Initial Buy/Sell Response Notice"”) within 60 thirty (30) days after the receipt of the Buy/Sell Offer Notice (the “Initial Buy/Sell Acceptance Period”) that the Offeree Member will either (xi) sell its entire Interest to the Offeror Member for an amount equal to the NYSTRS NorthStar Interest Amount or the Reckson TFG Interest Amount, as applicable or (yii) purchase the entire Interest of the Offeror Member for an amount equal to the NYSTRS NorthStar Interest Amount or the Reckson TFG Interest Amount, as applicable (the transactions contemplated by (x) and (y) is either such transaction, a "“Buy/Sell Transaction"”). Failure to respond within the thirty (30) day period set forth above shall be conclusively deemed to be an election by the Offeree Member to sell its entire Interest.
(i) If the Offeree Member elects in the Initial Buy-/Sell Response Notice to purchase the entire Interest of the Offeror Member, the Offeree Member shall, simultaneously with the delivery of the Initial Buy/Sell Response Notice, deliver to the New York office of one of the five largest title insurance companies in the United States (the "Buy/Sell Escrow Agent") (to be designated by the party transferring its Interest) Agent a Deposit (the "Buy/Sell Deposit") Deposit equal to 5% one percent (as reasonably estimated by the party purchasing the Interest1.0%) of whichever of the NYSTRS NorthStar Interest Amount or the Reckson TFG Interest Amount is being purchasedpaid, which amount shall be held in escrow pursuant to an escrow agreement reasonably satisfactory to each of the Members. In such event, the Buy/Sell Deposit originally delivered by the Offeror Member shall be simultaneously returned by the Buy/Sell Escrow Agent to the Offeror Member.
(ii) If the Offeree Member shall elect in the has delivered an Initial Buy/Sell Response Notice to sell its purchase the entire Interest to of the Offeror Member, within 10 a period (the “Second Buy/Sell Acceptance Period”) of ninety (90) days following the Offeror Member's receipt delivery of the Initial Buy/Sell Response Notice, the Offeree Member shall have the right to deliver to the Offeror Member a notice (the “Second Buy/Sell Acceptance Notice”) reaffirming its desire to purchase the entire Interest of the Offeror Member; provided, that simultaneously with the giving of the Second Buy/Sell Acceptance Notice such Offeree Member shall deliver to deliver to the Buy/Sell Escrow Agent the an additional Buy/Sell Deposit. Failure Deposit equal to respond within two percent (2.0%) of whichever of the 60-day period set forth above NorthStar Interest Amount or the TFG Interest Amount is being paid, which shall result in an aggregate Buy/Sell Deposit of three percent (3.0%) of whichever of the NorthStar Interest Amount or the TFG Interest Amount is being paid and the entire amount of such Buy/Sell Deposit shall be conclusively non-refundable (except in the event that the Offeror Member fails to deliver title to its Interest (other than due to the default of the Offeree Member), in which case such Buy/Sell Deposit shall be returned to the Offeree Member). If the Offeree Member does not timely deliver the Second Buy/Sell Acceptance Notice to the Offeror Member together with the additional Buy/Sell Deposit on or before the expiration of the Second Buy/Sell Acceptance Period (time being of the essence), the Offeree Member shall be deemed to have elected to have elected to be an election the Selling Buy/Sell Member and any Buy/Sell Deposit made by the Offeree Member shall be returned to sell its entire Interest. the Offeree Member.
(iii) Failure of a the Offeror Member to timely deliver the Deposit shall cause such Member to be treated as a Purchasing Buy/Sell Member Deposit as provided in Section 15.01(a) shall result in an invalid Buy/Sell Offer Notice which is a defaulting of no force or effect. Failure of the Offeree Member under paragraph to timely deliver the Buy/Sell Deposit as provided in Section 15.01(b)(i) and 15.01(b)(ii) shall result in the Offeree Member being deemed to have elected to be the Selling Buy/Sell Member.
(civ) below. The Buy/Sell Offer Notice and the Buy/Sell Response Notice (or deemed response) shall constitute a binding agreement of purchase and sale between the Offeree Member and the Offeror Member in accordance with the terms hereof.
(b) The closing of the Buy/Sell Transaction (the “Buy/Sell Closing”) shall be occur on a date (the "“Buy/Sell Closing Date"”) and at a place designated by the purchasing Member (or its designee; provided, that if the purchasing Member is the TFG Member, such designee shall not be the Manager or any subsidiary of the Manager) (as applicable, the "“Purchasing Buy/Sell Member"”) which is not more than 120 sixty (60) days after the expiration of (A) if the 60-day election period Offeree Member elects in the Initial Buy/Sell Response Notice to be the Selling Buy/Sell Member, the Initial Buy/Sell Election Period or (B) otherwise, the Second Buy/Sell Election Period (such Buy/Sell Closing Date to be determined by the Purchasing Buy/Sell Member on no less than 15 fifteen (15) days prior notice to the Selling Buy/Sell Member, or if no such notice is sent, then on the 105th day following the end of the 60-day election period set forth in paragraph (a) above) Member (subject to an adjournment of the closing as provided in clause (vii) below). Prior to On the Buy/Sell Closing Date, the Members shall cooperate in the preparation and filing of any regulatory filings which may be necessary. At the closing:
(i) the Purchasing Buy/Sell Member shall take title to the Interests of the selling Member Members (collectively, the "“Selling Buy/Sell Member"”) free and clear of all liens and encumbrances, and, indirectly, the Facility in its “as is” physical condition;
(ii) the Purchasing Buy/Sell Member shall deliver to the Selling Buy/Sell Member, the NorthStar Interest Amount or the TFG Interest Amount, as applicable, less the Buy/Sell Deposit by wire transfer in immediately available funds, and the Buy/Sell Deposit shall be transferred from the Buy/Sell Escrow Agent to the Selling Buy/Sell Member;
(iii) the Selling Buy/Sell Member shall pay all transfer, stamp or similar taxes due in connection with the conveyance of the Interest of the Selling Buy/Sell Member, as the case may be, or, if no such taxes are due in connection with such conveyance but would otherwise have been due in connection with a sale of all of the Facilities, then there shall be deducted from the NorthStar Interest Amount or the TFG Interest Amount, as applicable, an amount equal to the respective share (based on its respective Percentage Interest) of the Selling Buy/Sell Member of such transfer, stamp or similar taxes that would have been due in connection with any such sale of the Facilities;
(iv) the Selling Buy/Sell Member shall deliver to the Purchasing Buy/Sell Member a duly executed and acknowledged instrument appropriate assignment documents assigning its Interests, without covenants, representations or warranties of assignment transferring the Interest of any kind (other than that the Selling Buy/Sell Member Member’s Interest is owned free and clear of all liens and encumbrances) to the Purchasing Buy/Sell Member free and clear of all liens and encumbrances or its designee(s), which conveyance shall be (other than the Secured Liabilitiesexcept as provided in this clause (iv)(A);
(ii) the Selling Buy/Sell Member and the Purchasing Buy/Sell Member shall each pay their pro rata sharewithout any representation or warranty by, based upon their respective Percentage Interestsor recourse against, of all transfer, gains, stamp or similar taxes, if any, due in connection with the conveyance of the Selling Buy/Sell Member's Interest;
(iiiv) the Purchasing Buy/Sell Member shall pay the purchase price to the Selling Buy/Sell Member extent not otherwise taken into account in immediately available funds and shall deliver to computing the Selling Buy/Sell Member a duly executed agreement (which shall survive the closing under this Section 10.02(b)) indemnifying the Selling Buy/Sell Member against (1) claims based upon events arising from or in connection with the LLC, the Property Owner NorthStar Interest Amount or the Property from and after the Buy/Sell Closing DateTFG Interest Amount, and (2) except as provided under clause (viii) belowapplicable, any personal recourse liabilities for which the Members are jointly and severally liable which accrue from and after the Buy/Sell Closing Date; provided that Purchasing Buy-Sell Member's indemnity obligation under this paragraph (iii) shall be limited to its direct or indirect interest in the Property (or any Applicable Entity) (and any proceeds resulting from the sale of all or any portion of such interest);
(iv) Net Ordinary Cash Flow and Net Extraordinary Cash Flow up hereunder to the Buy/Sell Closing Date shall be distributed in accordance with the provisions of Section 6.05 and there shall be distributed to the Selling Buy/Sell Member its Percentage Interest of Reserves (providedif any);
(vi) the NorthStar Interest Amount or the TFG Interest Amount, if as applicable, shall (A) be increased by the Total Reckson Interest is being sold, "Net Ordinary Cash Flow" aggregate amount of all additional Capital Contributions made by the Selling Buy/Sell Member on account of the Interests of the Selling Buy/Sell Member in the period between the date of the Offer Notice and "the Sale Closing Date and (B) be decreased by any Net Extraordinary Cash Flow" Flow distributed to the Selling Buy/Sell Member on account of the Interests of the Selling Buy/Sell Member during such period;
(vii) all Priority Contributions outstanding as of the Buy/Sell Closing Date, together with return then accrued and unpaid thereon, shall be distributed under repaid to the applicable Contributing Member, whether such Priority Contributions were made prior to or after the date of the Buy/Sell Notice (it being acknowledged that any Priority Contributions made by or to the Selling Buy/Sell Member prior to the date of the Buy/Sell Notice, together with accrued and unpaid return through such date, shall be taken into account in computing the NorthStar Interest Amount and the TFG Interest Amount, as applicable);
(viii) without duplication of any other adjustment item, all Reckson Entity Agreementsitems of revenue and expense of the Facility or the Venture, as applicable (including the items which are customarily apportioned in the sale of membership interests comparable to the Interests), shall be apportioned between the Selling Buy/Sell Member, and the Purchasing Buy/Sell Member for the current calendar period as of 11:59 p.m. on the day preceding the Buy/Sell Closing Date in accordance with the customs and practices usual in transactions involving properties comparable to the Facility or Venture interests comparable to the Interests; and
(ix) the Selling Buy/Sell Member and the Purchasing Buy/Sell Member shall deliver such additional instruments (without representation or warranty by or material liability to the Venture or the Selling Buy/Sell Member) which are customarily delivered by buyers or sellers of properties comparable to the Interests.
(i) If (x) the Selling Buy/Sell Member shall default in its obligation to close the sale of its Interest contemplated by this Section 15.01 or (y) the Selling Buy/Sell Member or its Affiliate that is a member of the Operating Venture shall default in its obligation to close the sale of its Interest (as defined in the Operating Venture Agreement) contemplated by Section 15.01 of the Operating Venture Agreement, then (A) the Purchasing Buy/Sell Member may seek specific performance to cause the Selling Buy/Sell Member to sell its Interest for the NorthStar Interest Amount or the TFG Interest Amount, as applicable, with respect to which action the provisions of Section 15.04(b) shall survive the closing pursuant hereto for purposes of making apply, or correcting any customary closing adjustments (the parties acknowledge that B) if the Total Reckson Interest is being sold Purchasing Buy/Sell Member does not seek specific performance or does not receive specific performance (I) the phrases "Capital Contributions"Buy/Sell Escrow Agent shall immediately return the Buy/Sell Deposit, "Default Loans" and "Net Extraordinary Cash Flow" if any, to the Purchasing Buy/Sell Member, (II) notwithstanding anything to the contrary contained in this Agreement, the Purchasing Buy/Sell Member shall have the meanings unilateral right to sell the Facilities without the consent of the Selling Buy/Sell Member during the following twelve (12) month period, and (III) for a period of twelve (12) months after such default by the Selling Buy/Sell Member under this Section 15.01, the Selling Buy/Sell Member and its Affiliated Members shall not be permitted to invoke the procedures set forth in Section 10.01 or this Section 15.01.
(i) If (x) the Purchasing Buy/Sell Member shall default in its obligation to purchase the Interest of the Selling Buy/Sell Member contemplated by this Section 15.01 or (y) the Purchasing Buy/Sell Member or its Affiliate that is a member of the Operating Venture shall default in its obligation to close the purchase of the Interest of the Selling Buy/Sell Member (as each Reckson Entity such term is defined in the Operating Venture Agreement) contemplated by Section 15.01 of the Operating Venture Agreement, then the Selling Buy/Sell Member may either (A) seek specific performance against the Purchasing Buy/Sell Member, with respect to which action the provisions of Section 15.04(b) shall apply, or (B) if the Selling Buy/Sell Member does not seek specific performance or does not receive specific performance (I) retain for itself the Buy/Sell Deposit held by the Buy/Sell Escrow Agent as liquidated damages and (II) notwithstanding anything to the contrary contained in this Agreement, the Selling Buy/Sell Member shall have the unilateral right to sell the Facilities without the consent of the Purchasing Buy/Sell Member during the following twelve (12) month period. During the twelve (12) month period set forth in the preceding sentence, the Purchasing Buy/Sell Member shall not be permitted to invoke the procedures set forth in Section 10.01 or this Section 15.01.
(ii) A party may exercise any one or more of the foregoing remedies in clause (i) or clause (ii);, but such remedies shall collectively be the sole remedies for default under this Section 15.01(d).
(d) Each Member shall reasonably cooperate with the other Members and the transferee in consummating the Buy/Sell Transaction contemplated by this Section 15.01, including by executing such additional documents as may reasonably be required in connection therewith (but at no additional cost or liability (other than to a de minimis extent) to the cooperating Member).
(e) Notwithstanding anything to the contrary contained in Article 10 or this Article 15: (i) once the procedures outlined in this Article 15 are initiated, the procedures under Article 10 shall not be initiated until all of the rights under this Article 15 shall have been exercised, exhausted or extinguished relating to such first initiation; (ii) once the procedures outlined in Article 10 have been initiated, the procedures under this Article 15 shall not be initiated until all of the rights under Article 10 shall have been exercised, exhausted or extinguished; and (iii) any of the procedures or elections followed or made by a Member under this Article 15 (including with respect to the delivery of a Buy/Sell Offer Notice, an Initial Buy/Sell Response Notice or a an Second Buy/Sell Response Notice) shall be simultaneously made with or immediately followed by a like procedure or election by such Member or its Affiliate who is a member of the Owner Venture pursuant to and in accordance with the terms of Article 15 of the Owner Venture Agreement, in order for such procedure or election to be effective hereunder.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Buy/Sell Arrangements. (a) At In the event that, at any time following the second Anniversary third anniversary of the date hereof hereof, members of the Investcorp Group, on the one hand, or members of the Carmel Group, on the other hand, wish to sell all of their Securities (such Stockholders wishing to sell their Securities, the "2nd Anniversary DateOffering Stockholders"), either and the Reckson Group Agent or Offering Stockholders then hold at least 25% of the NYSTRS Group Agent (as applicablethen current voting power, the "Offeror Member") may tender Offering Stockholders shall promptly provide written notice thereof to the Group Agent Company and each of the Unaffiliated Members other Stockholders, which notice shall specify the number of Securities that the Offering Stockholders then hold and desire to sell and the price at which they are willing to sell such Securities. The Company and each of the other Stockholders who are members of the group of which the Offering Stockholders are not members (for purposes of this Section 10.02 5, such Unaffiliated Members are collectivelyother Stockholders, the "Offeree MemberStockholders") a good faithshall have the irrevocable option, exercisable by written offer (a "Buy/Sell Offer Notice") in which it offers either to sell all of its Interest notice to the Offeree Member or to purchase from the Offeree Member all of its Interest (it being acknowledged that if the Reckson Members are transferring their "Interest" hereunder, the Reckson Members shall transfer and the acquiring party shall acquire the Total Reckson Interest and provided, that during the period commencing on the 2nd Anniversary Date through and including March 31, 2005 a Buy/Sell Offer Notice may only be delivered if a dispute shall exist with respect to the Major Decision set forth in Section 7.03(b) and the dispute shall not have been resolved after 60 days of good faith negotiation between the members of the Management Committee (the periods and circumstances described above during which a Buy/Sell Offer Notice may not be delivered are collectively, the "Lockout Period"). The Buy/Sell Offer Notice shall provide a price (the "Buy/Sell Price") that the Offeror Member would be willing to sell the Property, and the LLC Accountants' calculation (subject to the review of any Unaffiliated Member) of the amount that would be distributed to (x) the NYSTRS Members (the "NYSTRS Interest Amount"), and (y) the Reckson Members (the "Reckson Interest Amount"), if the Property were sold for cash in an amount equal to the Buy-Sell Price and the purchaser assumed all Secured Liabilities. The Offeree Member shall give written notice (a "Buy/Sell Response Notice") Offering Stockholders within 60 120 days after the receipt of notice from the Buy/Sell Offer Notice that Offering Stockholders (for purposes of this Section 5, the Offeree Member will either (x) sell its entire Interest "Option Period"), to the Offeror Member for an amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as applicable or (y) purchase the entire Interest from such Offering Stockholders all of the Offeror Member for an amount equal to Securities then held by such Offering Stockholders at the NYSTRS Interest Amount or the Reckson Interest Amount, as applicable Offering Stockholders' asking price (the transactions contemplated by (x) and (y) is a "Buy/Sell TransactionOffer Price"). The determination of whether the Company shall exercise its right to purchase any or all of the Securities proposed to be sold by the Offering Stockholders pursuant to this Section 5 shall be made by the Offeree Stockholders, exercisable by the vote of the holders of a majority of the outstanding Shares held by all of the Offeree Stockholders. If the Offeree Member elects in the Buy-Sell Response Notice Company does not elect to purchase the entire Interest all of the Offeror MemberSecurities proposed to be sold and the Offeree Stockholders submit written elections to purchase more Securities than the number of Securities proposed to be sold which the Company has not elected to purchase, the Offeree Member shall, simultaneously with the delivery of the Buy/Sell Response Notice, deliver to the New York office of one of the five largest title insurance companies in the United States (the "Buy/Sell Escrow Agent") (to be designated Stockholders submitting such elections shall purchase such Securities not purchased by the party transferring its Interest) a Deposit (the "Buy/Sell Deposit") equal Company in proportion to 5% (their respective holdings of their Securities or such other proportion as reasonably estimated by the party purchasing the Interest) of whichever of the NYSTRS Interest Amount or the Reckson Interest Amount is being purchased. If the Offeree Member shall elect in the Buy/Sell Response Notice to sell its Interest to the Offeror Member, within 10 days following the Offeror Member's receipt of the Buy/Sell Response Notice, the Offeror Member shall deliver to the Buy/Sell Escrow Agent the Buy/Sell Deposit. Failure to respond within the 60-day period set forth above shall be conclusively deemed to be an election by the Offeree Member to sell its entire Interest. Failure of a Member to timely deliver the Deposit shall cause such Member to be treated as a Purchasing Buy/Sell Member which is a defaulting Member under paragraph (c) below. The Buy/Sell Offer Notice and the Buy/Sell Response Notice (or deemed response) shall constitute a binding agreement of purchase and sale between the Offeree Member and the Offeror Member in accordance with the terms hereofthey may agree upon.
(b) The closing If the Company and/or the Offeree Stockholders shall fail to elect, within the Option Period and pursuant to the terms of this Section 5, to purchase all of the Buy/Sell Transaction shall Securities proposed to be on a date (the "Buy/Sell Closing Date") and at a place designated sold by the purchasing Member (Offering Stockholders, or its designee) (at any time shall notify the "Purchasing Buy/Sell Member") which is Offering Stockholders of their elections not more than 120 to purchase all of such Securities, then the Offering Stockholders shall, within 60 days after the expiration of the 60-day election period (Option Period, purchase from the Offeree Stockholders all of the Securities then held by all of the Offeree Stockholders at the Offer Price; provided, however, that the holders of a majority of the outstanding Shares held by all of the Offering Stockholders shall have the right to elect to have the Company purchase any or all of the Securities then held by all of the Offeree Stockholders, and the balance, if any, of such Buy/Sell Closing Date to be determined Securities purchased by the Purchasing Buy/Sell Member on no less than 15 days prior notice Offering Stockholders in such proportions as they may agree upon.
(c) The closing of any such purchase pursuant to this Section 5 shall occur at the Selling Buy/Sell Member, or if no such notice is sent, then on the 105th day following the end offices of the 60-day election period set forth in paragraph (a) above) (subject to an adjournment Company within 60 days after the expiration of the closing as provided in clause Option Period, at a date and time specified by the Company and/or the acquiring Stockholders (vii) below). Prior to or such other place, date and time mutually agreed upon by the Buy/Sell Closing DateCompany, the Members shall cooperate in Offeree Stockholders and the preparation and filing of any regulatory filings which may be necessaryOffering Stockholders). At the closing:
(i) closing of any such purchase, the selling Member (the "Selling Buy/Sell Member") Stockholders shall deliver to the Purchasing Buy/Sell Member a Company and/or the acquiring Stockholders certificates evidencing the number of Securities being purchased in valid form for transfer with appropriate duly executed assignments, stock powers or endorsements, as the case may be, bearing any necessary documentary stamps and acknowledged instrument accompanied by such certificates of assignment transferring the Interest authority, consents to transfer or other instruments or evidences of the Selling Buy/Sell Member good title of the selling Stockholder to the Purchasing Buy/Sell Member such Securities, free and clear of any and all claims, liens and encumbrances (other than encumbrances, as may reasonably be requested by the Secured Liabilities);
(ii) Company and/or the Selling Buy/Sell Member and the Purchasing Buy/Sell Member shall each pay their pro rata share, based upon their respective Percentage Interests, of all transfer, gains, stamp or similar taxes, if any, due in connection with the conveyance of the Selling Buy/Sell Member's Interest;
(iii) the Purchasing Buy/Sell Member shall pay the purchase price to the Selling Buy/Sell Member in immediately available funds and shall deliver to the Selling Buy/Sell Member a duly executed agreement (which shall survive the closing under this Section 10.02(b)) indemnifying the Selling Buy/Sell Member against (1) claims based upon events arising from or in connection with the LLC, the Property Owner or the Property from and after the Buy/Sell Closing Date, and (2) except as provided under clause (viii) below, any personal recourse liabilities for which the Members are jointly and severally liable which accrue from and after the Buy/Sell Closing Date; provided that Purchasing Buy-Sell Member's indemnity obligation under this paragraph (iii) shall be limited to its direct or indirect interest in the Property (or any Applicable Entity) (and any proceeds resulting from the sale of all or any portion of such interest);
(iv) Net Ordinary Cash Flow and Net Extraordinary Cash Flow up to the Buy/Sell Closing Date shall be distributed in accordance with the provisions of Section 6.05 (provided, if the Total Reckson Interest is being sold, "Net Ordinary Cash Flow" and "Net Extraordinary Cash Flow" shall be distributed under all Reckson Entity Agreements) which provisions shall survive the closing pursuant hereto for purposes of making or correcting any customary closing adjustments (the parties acknowledge that if the Total Reckson Interest is being sold the phrases "Capital Contributions", "Default Loans" and "Net Extraordinary Cash Flow" shall have the meanings set forth in each Reckson Entity Agreement);acquiring Stockholders.
Appears in 1 contract
