Buy-Sell Procedure. Prior to the filing of a partition action in accordance with Section 8 or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “Seller”) shall first make a written offer (“Offer”) to sell its Interest to the other Tenant in Common at a price equal to (a) the Fair Market Value (as defined below) of Seller’s undivided Interest minus (b) Seller’s proportionate share of any selling, prepayment or other costs that would apply in the event the Property was sold on the date of the offer. The other Tenant in Common shall be entitled to purchase the selling Tenant in Common’s Interest in the Property. “Fair Market Value” shall mean the fair market value of Seller’s undivided Interest in the Property (reduced by liabilities secured by the Property or liabilities taken subject to) on the date the Offer is made as determined in accordance with the procedures set forth below. The other Tenant in Common shall have twenty (20) days after delivery of the Offer to accept the Offer. If the other Tenant in Common (the Tenant in Common electing to accept the Offer, “Purchaser”) accepts the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) days after the Offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit to the other a proposal containing the Fair Market Value the submitting party believes to be correct (each a “Proposal”). If either Purchaser or Seller fails to timely submit a Proposal, the other party’s submitted Proposal shall determine the Fair Market Value. If both Purchaser and Seller timely submit Proposals, then the Fair Market Value shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller shall meet, telephonically or at a mutually agreeable location, within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in Austin, Texas to act as the arbitrator. If Purchaser and Seller are unable to agree upon a single arbitrator, then Purchaser and Seller each, within five (5) days after the meeting, shall select an arbitrator that meets the foregoing qualifications. The two (2) arbitrators so appointed, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualifications; provided, however, if one party fails to appoint an arbitrator in such period, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) shall be limited solely to the issue of whether Seller’s or Purchaser’s Proposal most closely approximates the Fair Market Value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) days after the appointment of a single arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value or prescribe or change any or several of the components or the structure thereof; the sole decision to be made shall be which of the parties’ Proposals most closely corresponds to the Fair Market Value. The decision of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Seller. If Purchaser or Seller fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York City, New York, in accordance with applicable Texas law, as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated in the decision (i.e., New York, Delaware or Texas, as applicable). Such party shall submit to the applicable court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES UP ITS JUDICIAL RIGHTS TO APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS LAW. EACH TENANT IN COMMON’S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s Interest. The closing of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitration. Closing costs and prorations shall be allocated as is standard practice where the Property is located.
Appears in 2 contracts
Samples: Common Agreement, Tenants in Common Agreement (Bluerock Residential Growth REIT, Inc.)
Buy-Sell Procedure. Prior to the filing of a partition action in accordance with Section 8 or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “Seller”) shall first make a written offer (“Offer”) to sell its Interest to the other Tenant in Common at a price equal to (a) Subject to Section 6.1, the Fair Market Value (as defined below) of Seller’s undivided Interest minus (b) Seller’s proportionate share of any selling, prepayment or other costs that would apply in Initiating Venturer may submit to the event the Property was sold on Other Venturer within 30 days after the date of the offer. The other Tenant meeting of the Venturers described in Common Section 6.1 two irrevocable offers in writing, the first shall be entitled an offer to purchase the selling Tenant in Common’s Interest interest of the Other Venturer in the Property. “Fair Market Value” Joint Venture and the second shall mean be an offer to sell to the fair market value of Seller’s undivided Interest Other Venturer the Initiating Venturer's interest in the Property (reduced by liabilities secured by Joint Venture. The price to be contained in the Property offer to purchase shall be such amount of cash as the Initiating Venturer shall determine. The price to be specified in the offer to sell shall be in the same amount and cash form as the offer to purchase. Upon due submission of irrevocable offers as aforesaid until termination of the "Buy-Sell" procedure, neither Venturer shall thereafter have the right to submit other offers pursuant to this Section 7.2 or liabilities taken subject to) on to otherwise dispose of its interest in the Joint Venture. Upon submission of such offers, the Joint Venture shall make no further Distributions. If such submission does not coincide with the close of a monthly accounting period, earnings and profits of that period shall be prorated as of the date of submission. (b) Upon due submission of said irrevocable offers, the Offer Other Venturer must accept one such offer and may not reject both offers (the acceptance of one such offer to constitute a rejection of the other and is to be made as determined in writing within 60 days following the submission of the offers). If the Other Venturer has not accepted in writing one of the offers in such 60-day period, the Initiating Venturer shall have the option to purchase the Other Venturer's interest in the Joint Venture or sell its interest in the Joint Venture to the Other Venturer in accordance with the procedures set forth below. The other Tenant in Common shall have twenty (20) days after delivery terms of the Offer related offer and shall give the Other Venturer written notice within 30 days of the completion of such 60-day period of its election to accept buy or sell an interest in the OfferJoint Venture under the terms of the related offer. If the other Tenant in Common Initiating Venturer fails to give such notice, the "Buy-Sell" procedure initiated by the Initiating Venturer shall terminate and be of no further effect. (the Tenant in Common electing to accept the Offer, “Purchaser”c) accepts the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) Within 10 days after the Offer acceptance of any offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit made or deemed to the other a proposal containing the Fair Market Value the submitting party believes to be correct (each a “Proposal”). If either Purchaser or Seller fails to timely submit a Proposalhave been made, the other party’s submitted Proposal purchasing Venturer shall determine give the Fair Market Value. If both Purchaser selling Venturer written notice, specifying (i) the time and Seller timely submit Proposalsplace of the closing for the purchase, then and (ii) the Fair Market Value closing date for the purchase, which closing date shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller shall meet, telephonically or at a mutually agreeable location, within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in Austin, Texas to act as the arbitrator. If Purchaser and Seller are unable to agree upon a single arbitrator, then Purchaser and Seller each, within five (5) not more than 60 days after the meetingdate of the purchasing Venturer's notice or the date on which deemed acceptance occurs, shall select an arbitrator that meets as the foregoing qualifications. The two (2) arbitrators so appointed, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualificationscase may be; provided, . however, that if one party fails there is any litigation or governmental requirements relating to appoint an arbitrator in such periodpurchase and sale, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) closing date shall be limited solely to the issue of whether Seller’s or Purchaser’s Proposal most closely approximates the Fair Market Value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) postponed until a date not more than 20 days after the appointment termination of a single arbitrator such litigation or satisfaction of such governmental requirements. At such closing, the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value selling Venturer will deliver or prescribe or change any or several of the components or the structure thereof; the sole decision cause to be made shall be which of the parties’ Proposals most closely corresponds delivered to the Fair Market Value. The decision purchasing Venturer all documents necessary to effect the sale of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Seller. If Purchaser or Seller fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York City, New York, in accordance with applicable Texas law, as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated its interest in the decision (i.e.Joint Venture with all necessary transfer and documentary stamps, New Yorkif any, Delaware or Texasaffixed, as applicable). Such party shall submit to the applicable court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES UP ITS JUDICIAL RIGHTS TO APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS LAW. EACH TENANT IN COMMON’S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s Interest. The closing purchasing Venturer against payment of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitrationprice in immediately available funds. Closing costs and prorations shall be allocated as is standard practice where the Property is located.ARTICLE VII
Appears in 1 contract
Samples: Agreement (Pepco Holdings Inc)
Buy-Sell Procedure. Prior to the filing of a partition action in accordance with Section 8 or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “"Seller”") shall first make a written offer (“"Offer”") to sell its Interest undivided interest to the other Tenant in Common at a price equal to (a) the Fair Market Value (as defined below) of Seller’s 's undivided Interest interest minus (b) Seller’s 's proportionate share of any selling, prepayment or other costs that would apply in the event the Property was sold on the date of the offer. The other Tenant in Common shall be entitled to purchase the selling Tenant in Common’s Interest 's interest in the Property. “"Fair Market Value” " shall mean the fair market value of Seller’s 's undivided Interest interest in the Property (reduced by liabilities secured by the Property or liabilities taken subject to) on the date the Offer is made as determined in accordance with the procedures set forth below. The other Tenant in Common shall have twenty (20) days after delivery of the Offer to accept the Offer. If the other Tenant in Common (the Tenant in Common electing to accept the Offer, “"Purchaser”") accepts accept the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) days after the Offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit to the other a proposal containing the Fair Market Value the submitting party believes to be correct (each a “"Proposal”"). If either Purchaser or Seller fails to timely submit a Proposal, the other party’s 's submitted Proposal proposal shall determine the Fair Market Value. If both Purchaser and Seller timely submit Proposals, then the Fair Market Value shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller shall meet, telephonically or at a mutually agreeable location, within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in AustinHendersonville, Texas Tennessee to act as the arbitrator. If Purchaser and Seller are unable to agree upon a single arbitrator, then Purchaser and Seller each, within five (5) days after the meeting, shall select an arbitrator that meets the foregoing qualifications. The two (2) arbitrators so appointed, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualifications; provided, however, if one party fails to appoint an arbitrator in such period, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) shall be limited solely to the issue of whether Seller’s 's or Purchaser’s 's Proposal most closely approximates the Fair Market Valuefair market value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) days after the appointment of a single arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value or prescribe or change any or several of the components or the structure thereof; the sole decision to be made shall be which of the parties’ ' Proposals most closely corresponds to the Fair Market Valuefair market value of the Property. The decision of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Seller. If Purchaser or Seller fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York CityWilmington, New YorkDelaware, in accordance with applicable Texas Tennessee law, as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated in the decision (i.e., New York, North Carolina, Delaware or TexasTennessee, as applicable). Such party shall submit to the applicable court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ ' fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS TENNESSEE LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES UP ITS JUDICIAL RIGHTS TO APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS TENNESSEE LAW. EACH TENANT IN COMMON’S 'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s 's Interest. The closing of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitration. Closing costs and prorations shall be allocated as is standard practice where the Property is located.
Appears in 1 contract
Samples: Tenants in Common Agreement (Bluerock Residential Growth REIT, Inc.)
Buy-Sell Procedure. Prior to the filing of a partition action in accordance with Section 8 or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “"Seller”") shall first make a written offer (“"Offer”") to sell its Interest undivided interest to the other Tenant in Common at a price equal to (a) the Fair Market Value (as defined below) of Seller’s 's undivided Interest interest minus (b) Seller’s 's proportionate share of any selling, prepayment or other costs that would apply in the event the Property was sold on the date of the offer. The other Tenant in Common shall be entitled to purchase the selling Tenant in Common’s Interest 's interest in the Property. “"Fair Market Value” " shall mean the fair market value of Seller’s 's undivided Interest interest in the Property (reduced by liabilities secured by the Property or liabilities taken subject to) on the date the Offer is made as determined in accordance with the procedures set forth below. The other Tenant in Common shall have twenty (20) days after delivery of the Offer to accept the Offer. If the other Tenant in Common (the Tenant in Common electing to accept the Offer, “"Purchaser”") accepts accept the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) days after the Offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit to the other ·a proposal containing the Fair Market Value the submitting party believes to be correct (each a “"Proposal”"). If either Purchaser or Seller fails to timely submit a Proposal, the other party’s 's submitted Proposal proposal shall determine the Fair Market Value. If both Purchaser and Seller timely submit Proposals, then the Fair Market Value shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller shall meet, telephonically or at a mutually agreeable location, within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in AustinHendersonville, Texas Tennessee to act as the arbitrator. If Purchaser and Seller are unable to agree upon a single arbitrator, then Purchaser and Seller each, within five (5) days after the meeting, shall select an arbitrator that meets the foregoing qualifications. The two (2) arbitrators so appointed, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualifications; provided, however, if one party fails to appoint an arbitrator in such period, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) shall be limited solely to the issue of whether Seller’s 's or Purchaser’s 's Proposal most closely approximates the Fair Market Valuefair market value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) days after the appointment of a single arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value or prescribe or change any or several of the components or the structure thereof; the sole decision to be made shall be which of the parties’ ' Proposals most closely corresponds to the Fair Market Valuefair market value of the Property. The decision of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Seller. If Purchaser or Seller fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York CityWilmington, New YorkDelaware, in accordance with applicable Texas Tennessee law, as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated in the decision (i.e., New York, North Carolina, Delaware or TexasTennessee, as applicable). Such party shall submit to the applicable court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ ' fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS TENNESSEE LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES UP ITS JUDICIAL RIGHTS TO APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION.PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS TENNESSEE LAW. EACH TENANT IN COMMON’S 'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s 's Interest. The closing of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitration. Closing costs and prorations shall be allocated as is standard practice where the Property is located.
Appears in 1 contract
Samples: Common Agreement (Bluerock Residential Growth REIT, Inc.)
Buy-Sell Procedure. Prior to Upon the filing of a partition action in accordance with Section 8 8.1 (to the extent such right has not been waived as provided in Section 8.2) or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the other Tenants in Common shall have the right to purchase the interests of the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “"Seller”) "). Seller shall first make a written offer (“"Offer”") to sell its Interest Interests to the other Tenant Tenants in Common at a price equal to (a) the Fair Market Value (as defined below) of the Seller’s undivided Interest 's Interests minus (b) (i) Seller’s 's proportionate share of any fee or other amount that would be payable to Manager or any affiliates (including any real estate commission) under the Management Agreement upon the sale of the Property at a price equal to the Fair Market Value and (ii) selling, prepayment or other costs that would apply in the event the Property was sold on the date of the offer. The other Tenant Tenants in Common shall be entitled to purchase a portion of the selling Tenant in Xxxxxx's interest in proportion to their undivided interest in the Property. In the event any Tenant in Common elects not to purchase its share of the selling Tenant in Common’s Interest 's interest, the other Tenants in Common shall be entitled to purchase additional interests based on their undivided interest in the Property. “"Fair Market Value” " shall mean the fair market value of Seller’s 's undivided Interest interest in the Property (reduced by liabilities secured by the Property or liabilities taken subject to) on the date the Offer is made as determined in accordance with the procedures set forth below. The other Tenant Tenants in Common shall have twenty (20) days after delivery of the Offer to accept the Offer. If any or all of the other Tenant Tenants in Common (the Tenant in Common electing to "Purchaser") accept the Offer, “Purchaser”) accepts the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) days after the Offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit to the other a proposal containing the Fair Market Value the submitting party believes to be correct (each a “"Proposal”"). If either Purchaser or Seller party fails to timely submit a Proposal, the other party’s 's submitted Proposal proposal shall determine the Fair Market Value. If both Purchaser and Seller parties timely submit Proposals, then the Fair Market Value shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller The parties shall meet, telephonically or at a mutually agreeable location, meet within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in Austin, Texas the County or City in which the Property is located to act as the arbitrator. If Purchaser and Seller the parties are unable to agree upon a single arbitrator, then Purchaser and Seller eachthe parties each shall, within five (5) days after the meeting, shall each select an arbitrator that meets the foregoing qualifications. The two (2) arbitrators so appointedappointed shall, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualifications; provided, however, if one party fails to appoint an arbitrator in such period, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) shall be limited solely to the issue of whether Seller’s 's or Purchaser’s 's Proposal most closely approximates the Fair Market Valuefair market value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) days after the appointment of a single arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value or prescribe or change any or several of the components or the structure thereof; the sole decision to be made shall be which of the parties’ ' Proposals most closely corresponds to the Fair Market Valuefair market value of the Property. The decision of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Sellerthe parties. If Purchaser or Seller either party fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that which shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York CityOrange County, New YorkCalifornia, in accordance with applicable Texas lawIllinois Code of Civil Procedure sections 1280 et seq., as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, Code shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated in the decision (i.e., New York, Delaware or Texas, as applicable)decision. Such party shall submit to the applicable superior court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such the superior court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller one party refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other party to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ ' fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS ILLINOIS LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES YOU ARE GIVING UP ANY RIGHTS IT YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES YOU ARE GIVING UP ITS YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS LAWTHE ILLINOIS CODE OF CIVIL PROCEDURE. EACH TENANT IN COMMON’S YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s Interest. The closing of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitration. Closing costs and prorations shall be allocated as is standard practice where the Property is located.
Appears in 1 contract
