Buy-Sell Procedure. (a) At any time following the two (2) year anniversary of the date hereof, any Member shall have the right to commence the Buy-Sell procedure pursuant to this Section 10.5 as set forth below (the “Buy-Sell Procedure”); provided, however, in the event a Buy-Sell procedure under Section 10.5 of the operating agreement of any of GDC Beechwood, LLC, GDC SMG, LLC, or SMG Celebration, LLC (the “Affiliated Companies”) is triggered, the Member that is, or is the Affiliate of, the Person that so triggers such Buy-Sell Procedure shall be deemed to have triggered the Buy-Sell Procedure under this Section 10.5; provided, further, in the event of any triggering of the Buy-Sell Procedure hereunder that results in a sale of the Property, the “Property” under this Agreement and each such other operating agreement shall be transferred together unless otherwise agreed to by the Members and the members of the Affiliated Companies. (b) The Member commencing such Buy-Sell Procedure (the “Triggering Member”) shall submit a demand (the “Demand”) to all other Members of the Company. Following receipt of the Demand, all Members shall discuss in good faith, for a period of thirty (30) days from such receipt or such longer period of time as all Members may agree (the “Negotiation Period”), the potential for the Triggering Member to sell its Interest to the other Members, or to acquire the Interests of the other Members, all on terms mutually satisfactory to all Members. If the Members are unable to reach a mutual resolution during the Negotiation Period, then the GDC Members (for purposes of this Section 10.5, the “Sales Member”), shall thereafter be authorized and directed to use its commercially reasonable efforts to secure a third-party arms-length purchaser (a “Purchaser”) of the Property, as set forth below. (c) The Sales Member is authorized to (i) market the property to the general public, through a broker or otherwise, (ii) solicit offers from and make offers to potential Purchasers, (iii) negotiate with potential Purchasers, (iv) fully negotiate, execute and deliver any reasonable agreement necessary to sell the Property to a potential Purchaser (collectively, a “Purchase Agreement”) in accordance with the Approved Sales Terms (hereinafter defined), and (v) take all steps necessary to close under such Purchase Agreement and sell the Property to such Purchaser (the date of such closing the “Sale Closing Date”). Any Purchase Agreement must contain terms which (1) are reasonable and customary with respect to similar properties, (2) shall not allow any direct personal liability to attach to any Member with regard thereto, (3) shall provide a purchase price equal to or greater than the then fair market value of the Property, as reasonably determined by the Sales Member (the “Sale Price”), (4) shall provide sufficient time for the Members to effect any internal tax restructuring reasonably desired, or to identify any replacement properties for a like-kind exchange pursuant to Section 1031 of the Internal Revenue Code, (5) shall permit that the sale of the Property thereunder is contingent upon the closing of sale of the real property owned by the Affiliated Companies under Section 10.5 of the operating agreements thereof, (6) shall allow for the occurrence of a Member Pre-Closing in accordance with the terms hereof and (7) shall provide for the full release of the ARA Members (and their Affiliates) from any guarantees of debt of the Company (collectively, the “Approved Sales Terms”). Provided that the Purchase Agreement contains only Approved Sales Terms, all Members, including the Managing Member, shall cooperate with the Sales Member to negotiate, execute and close such Purchase Agreement, including the provision of any information or documentation reasonably requested, and the execution of any customary and reasonable document required in connection with such Purchase Agreement. No Member other than the Sales Member shall initiate any discussions or negotiations with any Purchaser or potential Purchaser regarding a Purchase Agreement, and the other Members shall promptly refer any inquiries or proposals received thereby from a potential Purchaser to the Sales Member. Prior to engaging any broker in connection with any proposed sale of the Property pursuant to this Section 10.5, the Sales Member shall deliver to the ARA Member a written request for the names of at least three nationally recognized real estate brokers recommended by the ARA Member, and, if the Sales Member receives a written response from the ARA Member within five (5) Business Days of the ARA Member’s receipt of such request, then the Sales Member shall be required to use one of the brokers set forth in the written response of the ARA Member as the exclusive broker for the sale of the Property. (d) Upon the execution by the Company and the Purchaser of a Purchase Agreement, the Sales Member will provide a copy thereof to all other Members, along with a written notice (the “Sale Notice”) setting forth the Company’s independent certified accountant’s calculation of the sum of (i) the estimated portion of the Sale Price which would be distributable to ARA Members in accordance with this Agreement (assuming cash sale proceeds in the amount of such Sale Price together with any cash or other liquid assets held by the Company on the Sale Closing Date, including any reserves, less the estimated amount that would then be required to repay the indebtedness, closing expenses and other obligations of the Company on the Sale Closing Date (including all amounts that would be incurred by the Company as prepayment fees, breakage fees, exit fees or similar fees, if any, under any then existing financing arrangements if such financing would be required to be paid off as a result of such sale) if the Sale Price were distributed in accordance with Section 9.4 plus (ii) the Premium (such sum, the “Member Purchase Price”). Prior to any closing under any Purchase Agreement pursuant to this Article, the Company’s independent certified public accountants shall audit the books and records of the Company and determine the amounts payable pursuant to this Section to each Member (the “Final Member Purchase Price”). Such computation shall reflect all relevant activities through the Sale Closing Date and the purchase price actually paid pursuant to the Purchase Agreement, which shall be certified as true and correct by an authorized officer of each of the Sales Member and the Purchaser. Such computation shall take into account any Capital Contributions or distributions or any tax items earned or accrued by the Company prior to the Sale Closing Date. The accountants shall deliver to each Member a detailed statement and explanation of such calculations. The determination of the accountants shall be prima facie evidence of the amounts to be paid pursuant to this Section. The costs of the accountants in performing the services described in this subsection shall be paid by the Company. For purposes hereof, “Premium” shall be 100% of the tax that would be payable by ARA pursuant to Code Section 704(c) if the membership interest in the Property Owner initially contributed to the Company by ARA were sold on the date of the Sale Notice at its initial, unadjusted 704(c) Value as of the date of such contribution (the “BIG Tax”). For purposes hereof, the BIG Tax shall be calculated based on the maximum combined effective U.S. federal, state, and local tax rate applicable to an individual resident of New York, New York, such rate determined at the time of the Pre-Closing. (e) On the Sale Closing Date, but immediately prior to the closing of the sale of the Property, the Sales Member may, at its sole option, purchase the Interests of the other Members by paying to such other Members the Final Member Purchase Price (the “Member Pre-Closing”). The Member Pre-Closing shall be held at the same location as the closing of the sale of the Property or at such other place as may be mutually agreed upon by the Members. At the Member Pre-Closing, the ARA Member shall Transfer its Interest(s), free and clear of any liens, encumbrances or restrictions on transfer, against delivery of the Final Member Purchase Price therefor, and the ARA Member shall execute and deliver such instruments and documents as may be necessary or desirable to effectuate the Transfer of the ARA Member’s Interest(s) to the Sales Member or its designee. The Members shall also execute and deliver at such time an amendment to this Agreement, if appropriate, whereby the ARA Member withdraws from the Company. The Final Member Purchase Price shall be paid in cash at the Member Pre-Closing by wire transfer of immediately available federal funds. Effective as of the Member Pre-Closing, the ARA Member shall cease to be a Member of the Company and shall have no further rights, duties or obligations to the Company arising out of this Agreement or otherwise. Subsequent to the Member Pre-Closing, the ARA Member shall have no further interest in the Company’s capital, profits, losses, gains or distributions.
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Buy-Sell Procedure. (a) At any time following the two (2) year anniversary of the date hereof, any Member shall have the right to commence the Buy-Sell procedure pursuant to this Section 10.5 as set forth below (the “Buy-Sell Procedure”); provided, however, in the event a Buy-Sell procedure under Section 10.5 of the operating agreement of any of GDC Beechwood, LLC, GDC SMGAspen Cove Apartments, LLC, or SMG Celebration, LLC (the “Affiliated Companies”) is triggered, the Member that is, or is the Affiliate of, the Person that so triggers such Buy-Sell Procedure shall be deemed to have triggered the Buy-Sell Procedure under this Section 10.5; provided, further, in the event of any triggering of the Buy-Sell Procedure hereunder that results in a sale of the Property, the “Property” under this Agreement and each such other operating agreement shall be transferred together unless otherwise agreed to by the Members and the members of the Affiliated Companies.
(b) The Member commencing such Buy-Sell Procedure (the “Triggering Member”) shall submit a demand (the “Demand”) to all other Members of the Company. Following receipt of the Demand, all Members shall discuss in good faith, for a period of thirty (30) days from such receipt or such longer period of time as all Members may agree (the “Negotiation Period”), the potential for the Triggering Member to sell its Interest to the other Members, or to acquire the Interests of the other Members, all on terms mutually satisfactory to all Members. If the Members are unable to reach a mutual resolution during the Negotiation Period, then the GDC Members (for purposes of this Section 10.5, the “Sales Member”), shall thereafter be authorized and directed to use its commercially reasonable efforts to secure a third-party arms-length purchaser (a “Purchaser”) of the Property, as set forth below.
(c) The Sales Member is authorized to (i) market the property to the general public, through a broker or otherwise, (ii) solicit offers from and make offers to potential Purchasers, (iii) negotiate with potential Purchasers, (iv) fully negotiate, execute and deliver any reasonable agreement necessary to sell the Property to a potential Purchaser (collectively, a “Purchase Agreement”) in accordance with the Approved Sales Terms (hereinafter defined), and (v) take all steps necessary to close under such Purchase Agreement and sell the Property to such Purchaser (the date of such closing the “Sale Closing Date”). Any Purchase Agreement must contain terms which (1) are reasonable and customary with respect to similar properties, (2) shall not allow any direct personal liability to attach to any Member with regard thereto, (3) shall provide a purchase price equal to or greater than the then fair market value of the Property, as reasonably determined by the Sales Member (the “Sale Price”), (4) shall provide sufficient time for the Members to effect any internal tax restructuring reasonably desired, or to identify any replacement properties for a like-kind exchange pursuant to Section 1031 of the Internal Revenue Code, (5) shall permit that the sale of the Property thereunder is contingent upon the closing of sale of the real property owned by the Affiliated Companies under Section 10.5 of the operating agreements thereof, (6) shall allow for the occurrence of a Member Pre-Closing in accordance with the terms hereof and (7) shall provide for the full release of the ARA Members (and their Affiliates) from any guarantees of debt of the Company (collectively, the “Approved Sales Terms”). Provided that the Purchase Agreement contains only Approved Sales Terms, all Members, including the Managing Member, shall cooperate with the Sales Member to negotiate, execute and close such Purchase Agreement, including the provision of any information or documentation reasonably requested, and the execution of any customary and reasonable document required in connection with such Purchase Agreement. No Member other than the Sales Member shall initiate any discussions or negotiations with any Purchaser or potential Purchaser regarding a Purchase Agreement, and the other Members shall promptly refer any inquiries or proposals received thereby from a potential Purchaser to the Sales Member. Prior to engaging any broker in connection with any proposed sale of the Property pursuant to this Section 10.5, the Sales Member shall deliver to the ARA Member a written request for the names of at least three nationally recognized real estate brokers recommended by the ARA Member, and, if the Sales Member receives a written response from the ARA Member within five (5) Business Days of the ARA Member’s receipt of such request, then the Sales Member shall be required to use one of the brokers set forth in the written response of the ARA Member as the exclusive broker for the sale of the Property.
(d) Upon the execution by the Company and the Purchaser of a Purchase Agreement, the Sales Member will provide a copy thereof to all other Members, along with a written notice (the “Sale Notice”) setting forth the Company’s independent certified accountant’s calculation of the sum of (i) the estimated portion of the Sale Price which would be distributable to ARA Members in accordance with this Agreement (assuming cash sale proceeds in the amount of such Sale Price together with any cash or other liquid assets held by the Company on the Sale Closing Date, including any reserves, less the estimated amount that would then be required to repay the indebtedness, closing expenses and other obligations of the Company on the Sale Closing Date (including all amounts that would be incurred by the Company as prepayment fees, breakage fees, exit fees or similar fees, if any, under any then existing financing arrangements if such financing would be required to be paid off as a result of such sale) if the Sale Price were distributed in accordance with Section 9.4 plus (ii) the Premium (such sum, the “Member Purchase Price”). Prior to any closing under any Purchase Agreement pursuant to this Article, the Company’s independent certified public accountants shall audit the books and records of the Company and determine the amounts payable pursuant to this Section to each Member (the “Final Member Purchase Price”). Such computation shall reflect all relevant activities through the Sale Closing Date and the purchase price actually paid pursuant to the Purchase Agreement, which shall be certified as true and correct by an authorized officer of each of the Sales Member and the Purchaser. Such computation shall take into account any Capital Contributions or distributions or any tax items earned or accrued by the Company prior to the Sale Closing Date. The accountants shall deliver to each Member a detailed statement and explanation of such calculations. The determination of the accountants shall be prima facie evidence of the amounts to be paid pursuant to this Section. The costs of the accountants in performing the services described in this subsection shall be paid by the Company. For purposes hereof, “Premium” shall be 100% of the tax that would be payable by ARA pursuant to Code Section 704(c) if the membership interest in the Property Owner initially contributed to the Company by ARA were sold on the date of the Sale Notice at its initial, unadjusted 704(c) Value as of the date of such contribution (the “BIG Tax”). For purposes hereof, the BIG Tax shall be calculated based on the maximum combined effective U.S. federal, state, and local tax rate applicable to an individual resident of New York, New York, such rate determined at the time of the Pre-Closing.
(e) On the Sale Closing Date, but immediately prior to the closing of the sale of the Property, the Sales Member may, at its sole option, purchase the Interests of the other Members by paying to such other Members the Final Member Purchase Price (the “Member Pre-Closing”). The Member Pre-Closing shall be held at the same location as the closing of the sale of the Property or at such other place as may be mutually agreed upon by the Members. At the Member Pre-Closing, the ARA Member shall Transfer its Interest(s), free and clear of any liens, encumbrances or restrictions on transfer, against delivery of the Final Member Purchase Price therefor, and the ARA Member shall execute and deliver such instruments and documents as may be necessary or desirable to effectuate the Transfer of the ARA Member’s Interest(s) to the Sales Member or its designee. The Members shall also execute and deliver at such time an amendment to this Agreement, if appropriate, whereby the ARA Member withdraws from the Company. The Final Member Purchase Price shall be paid in cash at the Member Pre-Closing by wire transfer of immediately available federal funds. Effective as of the Member Pre-Closing, the ARA Member shall cease to be a Member of the Company and shall have no further rights, duties or obligations to the Company arising out of this Agreement or otherwise. Subsequent to the Member Pre-Closing, the ARA Member shall have no further interest in the Company’s capital, profits, losses, gains or distributions.
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Buy-Sell Procedure. (a) At any time following the two (2) year anniversary of the date hereof, any Member shall have the right to commence the Buy-Sell procedure pursuant to this Section 10.5 as set forth below (the “Buy-Sell Procedure”); provided, however, in the event a Buy-Sell procedure under Section 10.5 of the operating agreement of any of GDC Beechwood, LLC, GDC SMG, LLC, or SMG CelebrationGDC SMG, LLC (the “Affiliated Companies”) is triggered, the Member that is, or is the Affiliate of, the Person that so triggers such Buy-Sell Procedure shall be deemed to have triggered the Buy-Sell Procedure under this Section 10.5; provided, further, in the event of any triggering of the Buy-Sell Procedure hereunder that results in a sale of the Property, the “Property” under this Agreement and each such other operating agreement shall be transferred together unless otherwise agreed to by the Members and the members of the Affiliated Companies.
(b) The Member commencing such Buy-Sell Procedure (the “Triggering Member”) shall submit a demand (the “Demand”) to all other Members of the Company. Following receipt of the Demand, all Members shall discuss in good faith, for a period of thirty (30) days from such receipt or such longer period of time as all Members may agree (the “Negotiation Period”), the potential for the Triggering Member to sell its Interest to the other Members, or to acquire the Interests of the other Members, all on terms mutually satisfactory to all Members. If the Members are unable to reach a mutual resolution during the Negotiation Period, then the GDC Members (for purposes of this Section 10.5, the “Sales Member”), shall thereafter be authorized and directed to use its commercially reasonable efforts to secure a third-party arms-length purchaser (a “Purchaser”) of the Property, as set forth below.
(c) The Sales Member is authorized to (i) market the property to the general public, through a broker or otherwise, (ii) solicit offers from and make offers to potential Purchasers, (iii) negotiate with potential Purchasers, (iv) fully negotiate, execute and deliver any reasonable agreement necessary to sell the Property to a potential Purchaser (collectively, a “Purchase Agreement”) in accordance with the Approved Sales Terms (hereinafter defined), and (v) take all steps necessary to close under such Purchase Agreement and sell the Property to such Purchaser (the date of such closing the “Sale Closing Date”). Any Purchase Agreement must contain terms which (1) are reasonable and customary with respect to similar properties, (2) shall not allow any direct personal liability to attach to any Member with regard thereto, (3) shall provide a purchase price equal to or greater than the then fair market value of the Property, as reasonably determined by the Sales Member (the “Sale Price”), (4) shall provide sufficient time for the Members to effect any internal tax restructuring reasonably desired, or to identify any replacement properties for a like-kind exchange pursuant to Section 1031 of the Internal Revenue Code, (5) shall permit that the sale of the Property thereunder is contingent upon the closing of sale of the real property owned by the Affiliated Companies under Section 10.5 of the operating agreements thereof, (6) shall allow for the occurrence of a Member Pre-Closing in accordance with the terms hereof and (7) shall provide for the full release of the ARA Members (and their Affiliates) from any guarantees of debt of the Company (collectively, the “Approved Sales Terms”). Provided that the Purchase Agreement contains only Approved Sales Terms, all Members, including the Managing Member, shall cooperate with the Sales Member to negotiate, execute and close such Purchase Agreement, including the provision of any information or documentation reasonably requested, and the execution of any customary and reasonable document required in connection with such Purchase Agreement. No Member other than the Sales Member shall initiate any discussions or negotiations with any Purchaser or potential Purchaser regarding a Purchase Agreement, and the other Members shall promptly refer any inquiries or proposals received thereby from a potential Purchaser to the Sales Member. Prior to engaging any broker in connection with any proposed sale of the Property pursuant to this Section 10.5, the Sales Member shall deliver to the ARA Member a written request for the names of at least three nationally recognized real estate brokers recommended by the ARA Member, and, if the Sales Member receives a written response from the ARA Member within five (5) Business Days of the ARA Member’s receipt of such request, then the Sales Member shall be required to use one of the brokers set forth in the written response of the ARA Member as the exclusive broker for the sale of the Property.
(d) Upon the execution by the Company and the Purchaser of a Purchase Agreement, the Sales Member will provide a copy thereof to all other Members, along with a written notice (the “Sale Notice”) setting forth the Company’s independent certified accountant’s calculation of the sum of (i) the estimated portion of the Sale Price which would be distributable to ARA Members in accordance with this Agreement (assuming cash sale proceeds in the amount of such Sale Price together with any cash or other liquid assets held by the Company on the Sale Closing Date, including any reserves, less the estimated amount that would then be required to repay the indebtedness, closing expenses and other obligations of the Company on the Sale Closing Date (including all amounts that would be incurred by the Company as prepayment fees, breakage fees, exit fees or similar fees, if any, under any then existing financing arrangements if such financing would be required to be paid off as a result of such sale) if the Sale Price were distributed in accordance with Section 9.4 plus (ii) the Premium (such sum, the “Member Purchase Price”). Prior to any closing under any Purchase Agreement pursuant to this Article, the Company’s independent certified public accountants shall audit the books and records of the Company and determine the amounts payable pursuant to this Section to each Member (the “Final Member Purchase Price”). Such computation shall reflect all relevant activities through the Sale Closing Date and the purchase price actually paid pursuant to the Purchase Agreement, which shall be certified as true and correct by an authorized officer of each of the Sales Member and the Purchaser. Such computation shall take into account any Capital Contributions or distributions or any tax items earned or accrued by the Company prior to the Sale Closing Date. The accountants shall deliver to each Member a detailed statement and explanation of such calculations. The determination of the accountants shall be prima facie evidence of the amounts to be paid pursuant to this Section. The costs of the accountants in performing the services described in this subsection shall be paid by the Company. For purposes hereof, “Premium” shall be 100% of the tax that would be payable by ARA pursuant to Code Section 704(c) if the membership interest in the Property Owner initially contributed to the Company by ARA were sold on the date of the Sale Notice at its initial, unadjusted 704(c) Value as of the date of such contribution (the “BIG Tax”). For purposes hereof, the BIG Tax shall be calculated based on the maximum combined effective U.S. federal, state, and local tax rate applicable to an individual resident of New York, New York, such rate determined at the time of the Pre-Closing.
(e) On the Sale Closing Date, but immediately prior to the closing of the sale of the Property, the Sales Member may, at its sole option, purchase the Interests of the other Members by paying to such other Members the Final Member Purchase Price (the “Member Pre-Closing”). The Member Pre-Closing shall be held at the same location as the closing of the sale of the Property or at such other place as may be mutually agreed upon by the Members. At the Member Pre-Closing, the ARA Member shall Transfer its Interest(s), free and clear of any liens, encumbrances or restrictions on transfer, against delivery of the Final Member Purchase Price therefor, and the ARA Member shall execute and deliver such instruments and documents as may be necessary or desirable to effectuate the Transfer of the ARA Member’s Interest(s) to the Sales Member or its designee. The Members shall also execute and deliver at such time an amendment to this Agreement, if appropriate, whereby the ARA Member withdraws from the Company. The Final Member Purchase Price shall be paid in cash at the Member Pre-Closing by wire transfer of immediately available federal funds. Effective as of the Member Pre-Closing, the ARA Member shall cease to be a Member of the Company and shall have no further rights, duties or obligations to the Company arising out of this Agreement or otherwise. Subsequent to the Member Pre-Closing, the ARA Member shall have no further interest in the Company’s capital, profits, losses, gains or distributions.
Appears in 1 contract
Buy-Sell Procedure. (a) At any time following the two (2) year anniversary of the date hereof, any Member shall have the right to commence the Buy-Sell procedure pursuant to this Section 10.5 as set forth below (the “Buy-Sell Procedure”); provided, however, in the event a Buy-Sell procedure under Section 10.5 of the operating agreement of any of GDC BeechwoodSMG, LLC, GDC SMGAspen Cove Apartments, LLC, or SMG Celebration, LLC (the “Affiliated Companies”) is triggered, the Member that is, or is the Affiliate of, the Person that so triggers such Buy-Sell Procedure shall be deemed to have triggered the Buy-Sell Procedure under this Section 10.5; provided, further, in the event of any triggering of the Buy-Sell Procedure hereunder that results in a sale of the Property, the “Property” under this Agreement and each such other operating agreement shall be transferred together unless otherwise agreed to by the Members and the members of the Affiliated Companies.
(b) The Member commencing such Buy-Sell Procedure (the “Triggering Member”) shall submit a demand (the “Demand”) to all other Members of the Company. Following receipt of the Demand, all Members shall discuss in good faith, for a period of thirty (30) days from such receipt or such longer period of time as all Members may agree (the “Negotiation Period”), the potential for the Triggering Member to sell its Interest to the other Members, or to acquire the Interests of the other Members, all on terms mutually satisfactory to all Members. If the Members are unable to reach a mutual resolution during the Negotiation Period, then the GDC Members (for purposes of this Section 10.5, the “Sales Member”), shall thereafter be authorized and directed to use its commercially reasonable efforts to secure a third-party arms-length purchaser (a “Purchaser”) of the Property, as set forth below.
(c) The Sales Member is authorized to (i) market the property to the general public, through a broker or otherwise, (ii) solicit offers from and make offers to potential Purchasers, (iii) negotiate with potential Purchasers, (iv) fully negotiate, execute and deliver any reasonable agreement necessary to sell the Property to a potential Purchaser (collectively, a “Purchase Agreement”) in accordance with the Approved Sales Terms (hereinafter defined), and (v) take all steps necessary to close under such Purchase Agreement and sell the Property to such Purchaser (the date of such closing the “Sale Closing Date”). Any Purchase Agreement must contain terms which (1) are reasonable and customary with respect to similar properties, (2) shall not allow any direct personal liability to attach to any Member with regard thereto, (3) shall provide a purchase price equal to or greater than the then fair market value of the Property, as reasonably determined by the Sales Member (the “Sale Price”), (4) shall provide sufficient time for the Members to effect any internal tax restructuring reasonably desired, or to identify any replacement properties for a like-kind exchange pursuant to Section 1031 of the Internal Revenue Code, (5) shall permit that the sale of the Property thereunder is contingent upon the closing of sale of the real property owned by the Affiliated Companies under Section 10.5 of the operating agreements thereof, (6) shall allow for the occurrence of a Member Pre-Closing in accordance with the terms hereof and (7) shall provide for the full release of the ARA Members (and their Affiliates) from any guarantees of debt of the Company (collectively, the “Approved Sales Terms”). Provided that the Purchase Agreement contains only Approved Sales Terms, all Members, including the Managing Member, shall cooperate with the Sales Member to negotiate, execute and close such Purchase Agreement, including the provision of any information or documentation reasonably requested, and the execution of any customary and reasonable document required in connection with such Purchase Agreement. No Member other than the Sales Member shall initiate any discussions or negotiations with any Purchaser or potential Purchaser regarding a Purchase Agreement, and the other Members shall promptly refer any inquiries or proposals received thereby from a potential Purchaser to the Sales Member. Prior to engaging any broker in connection with any proposed sale of the Property pursuant to this Section 10.5, the Sales Member shall deliver to the ARA Member a written request for the names of at least three nationally recognized real estate brokers recommended by the ARA Member, and, if the Sales Member receives a written response from the ARA Member within five (5) Business Days of the ARA Member’s receipt of such request, then the Sales Member shall be required to use one of the brokers set forth in the written response of the ARA Member as the exclusive broker for the sale of the Property.
(d) Upon the execution by the Company and the Purchaser of a Purchase Agreement, the Sales Member will provide a copy thereof to all other Members, along with a written notice (the “Sale Notice”) setting forth the Company’s independent certified accountant’s calculation of the sum of (i) the estimated portion of the Sale Price which would be distributable to ARA Members in accordance with this Agreement (assuming cash sale proceeds in the amount of such Sale Price together with any cash or other liquid assets held by the Company on the Sale Closing Date, including any reserves, less the estimated amount that would then be required to repay the indebtedness, closing expenses and other obligations of the Company on the Sale Closing Date (including all amounts that would be incurred by the Company as prepayment fees, breakage fees, exit fees or similar fees, if any, under any then existing financing arrangements if such financing would be required to be paid off as a result of such sale) if the Sale Price were distributed in accordance with Section 9.4 plus (ii) the Premium (such sum, the “Member Purchase Price”). Prior to any closing under any Purchase Agreement pursuant to this Article, the Company’s independent certified public accountants shall audit the books and records of the Company and determine the amounts payable pursuant to this Section to each Member (the “Final Member Purchase Price”). Such computation shall reflect all relevant activities through the Sale Closing Date and the purchase price actually paid pursuant to the Purchase Agreement, which shall be certified as true and correct by an authorized officer of each of the Sales Member and the Purchaser. Such computation shall take into account any Capital Contributions or distributions or any tax items earned or accrued by the Company prior to the Sale Closing Date. The accountants shall deliver to each Member a detailed statement and explanation of such calculations. The determination of the accountants shall be prima facie evidence of the amounts to be paid pursuant to this Section. The costs of the accountants in performing the services described in this subsection shall be paid by the Company. For purposes hereof, “Premium” shall be 100% of the tax that would be payable by ARA pursuant to Code Section 704(c) if the membership interest in the Property Owner initially contributed to the Company by ARA were sold on the date of the Sale Notice at its initial, unadjusted 704(c) Value as of the date of such contribution (the “BIG Tax”). For purposes hereof, the BIG Tax shall be calculated based on the maximum combined effective U.S. federal, state, and local tax rate applicable to an individual resident of New York, New York, such rate determined at the time of the Pre-Closing.
(e) On the Sale Closing Date, but immediately prior to the closing of the sale of the Property, the Sales Member may, at its sole option, purchase the Interests of the other Members by paying to such other Members the Final Member Purchase Price (the “Member Pre-Closing”). The Member Pre-Closing shall be held at the same location as the closing of the sale of the Property or at such other place as may be mutually agreed upon by the Members. At the Member Pre-Closing, the ARA Member shall Transfer its Interest(s), free and clear of any liens, encumbrances or restrictions on transfer, against delivery of the Final Member Purchase Price therefor, and the ARA Member shall execute and deliver such instruments and documents as may be necessary or desirable to effectuate the Transfer of the ARA Member’s Interest(s) to the Sales Member or its designee. The Members shall also execute and deliver at such time an amendment to this Agreement, if appropriate, whereby the ARA Member withdraws from the Company. The Final Member Purchase Price shall be paid in cash at the Member Pre-Closing by wire transfer of immediately available federal funds. Effective as of the Member Pre-Closing, the ARA Member shall cease to be a Member of the Company and shall have no further rights, duties or obligations to the Company arising out of this Agreement or otherwise. Subsequent to the Member Pre-Closing, the ARA Member shall have no further interest in the Company’s capital, profits, losses, gains or distributions.
Appears in 1 contract
