Common use of Closing of Sale Clause in Contracts

Closing of Sale. (a) In the event that the Repurchase Right is exercised at the time of a Sale of the Company or other arms length third party transaction involving a valuation of the assets or securities of the Company and its Subsidiaries, for purposes of this Agreement, the “Fair Market Value” of each Executive Preferred Unit shall mean (i) the total consideration that would be received by a holder of such Executive Preferred Unit in such Sale of the Company or (ii) deemed price per Executive Preferred Unit based upon the valuation of the assets or securities of the Company and its Subsidiaries in any other arms length third party transaction. In any other cases, for purposes of this Agreement, “Fair Market Value” of any Executive Preferred Unit shall mean the total consideration that would be received by a holder of such Executive Preferred Unit (without any premium or discount attributable to control, minority interest or lack of liquidity for less than all Executive Preferred Units) upon the sale, as of the date of the Purchase Notice, of all the Company’s issued and outstanding Capital Securities in a single transaction or series of related transactions to a buyer willing to pay the highest purchase price that would be received in a sale conducted by a nationally recognized investment banking firm, which buyer is under no compulsion to buy and the holders of such equity securities are under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, with no minority interest discount being applied and no other discount being applied for any other reason. The Fair Market Value of the Executive Preferred Units shall be that which is negotiated by the Company and the Seller. If the Company and the Seller fail to agree on the Fair market Value within thirty (30) days of the date of the Purchase Notice, then the Company and the Seller shall attempt to agree upon an appraiser to determine the Fair Market Value, which such appraiser shall make such determination within thirty (30) days of the date of such person’s engagement, and such determination shall govern. If the Company and the Seller do not, within such 10 day period, agree as to a single appraiser, or if the appraiser appointed as provided above fails to determine such Fair Market Value within thirty (30) days of the date of such person’s engagement, then each of the Company and the Seller, by notice to the other, shall appoint one appraiser. If either the Company or the Seller shall fail to appoint such an appraiser within ten (10) days after the lapse of such 10 or 30 day period, as applicable, then the appraiser appointed by the party that does so appoint an Appraiser shall make the determination of such Fair Market Value and such determination shall govern. If two appraisers are appointed and they agree upon such Fair Market Value, their joint determination shall govern. If said two appraisers fail to reach agreement within thirty (30) days after the appointment of the last appraiser to be appointed, the two appraisers selected shall promptly select a nationally recognized investment banking firm to the be the third appraiser. Such third appraiser shall, within fifteen (15) days following such appraiser’s appointment, select one of the two other appraisals as constituting Fair Market Value. All decisions of the appraiser(s) shall be rendered in writing and shall be signed by the appraiser(s). The Fair Market Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Fair Market Value determination shall be borne by the Company. (b) The consummation of any purchase and sale of the Seller’s Units under this Section 5.2 shall, unless otherwise agreed in writing by the parties to such transaction, shall occur on the thirtieth (30th) day following the date of the Fair Market Value is determined, or such earlier date as Buyer shall specify. The Purchase Price to be paid for the Seller’s Units to be purchased and sold pursuant to this Section 5 shall be paid in immediately available funds. Upon tender of payment of the Purchase Price for the Seller’s Units being purchased as provided above, thereupon and without any further action on the part of any person being necessary, all right, title and interest in and to the Seller’s Units being purchased shall thereupon pass to the Buyer. Without limitation of the foregoing, the parties and their transferees shall execute and deliver such certificates and other documents and take such further action as the Buyer may reasonably request in order to further evidence the purchase and sale of the Seller’s Units as contemplated hereby.

Closing of Sale. (a) In the event that the Repurchase Right is exercised at the time of a Sale of the Company or other arms length third party transaction involving a valuation of the assets or securities of the Company and its Subsidiaries, for purposes of this Agreement, the “Fair Market Value” of each Executive Preferred Unit shall mean (i) the total consideration that would be received by a holder of such Executive Preferred Unit in such Sale of the Company or (ii) deemed price per Executive Preferred Unit based upon the valuation of the assets or securities of the Company and its Subsidiaries in any other arms length third party transaction. In any other cases, for purposes of this Agreement, “Fair Market Value” of any Executive Preferred Unit shall mean the total consideration that would be received by a holder of such Executive Preferred Unit (without any premium or discount attributable to control, minority interest or lack of liquidity for less than all Executive Preferred Units) upon the sale, as of the date of the Purchase Notice, of all the Company’s issued and outstanding Capital Securities in a single transaction or series of related transactions to a buyer willing to pay the highest purchase price that would be received in a sale conducted by a nationally recognized investment banking firm, which buyer is under no compulsion to buy and the holders of such equity securities are under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, with no minority interest discount being applied and no other discount being applied for any other reason. The Fair Market Value of the Executive Preferred Units shall be that which is negotiated by the Company and the Seller. If the Company and the Seller fail to agree on the Fair market Value within thirty (30) days of the date of the Purchase Notice, then the Company and the Seller shall attempt to agree upon an appraiser to determine the Fair Market Value, which such appraiser shall make such determination within thirty (30) days of the date of such person’s engagement, and such determination shall govern. If the Company and the Seller do not, within such 10 day period, agree as to a single appraiser, or if the appraiser appointed as provided above fails to determine such Fair Market Value within thirty (30) days of the date of such person’s engagement, then each of the Company and the Seller, by notice to the other, shall appoint one appraiser. If either the Company or the Seller shall fail to appoint such an appraiser within ten (10) days after the lapse of such 10 or 30 day period, as applicable, then the appraiser appointed by the party that does so appoint an Appraiser shall make the determination of such Fair Market Value and such determination shall govern. If two appraisers are appointed and they agree upon such Fair Market Value, their joint determination shall govern. If said two appraisers fail to reach agreement within thirty (30) days after the appointment of the last appraiser to be appointed, the two appraisers selected shall promptly select a nationally recognized investment banking firm to the be the third appraiser. Such third appraiser shall, within fifteen (15) days following such appraiser’s appointment, select one of the two other appraisals as constituting Fair Market Value. All decisions of the appraiser(s) shall be rendered in writing and shall be signed by the appraiser(s). The Fair Market Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Fair Market Value determination shall be borne by the Company. (b) The consummation of any purchase and sale of the Seller’s Units under this Section 5.2 shall, unless otherwise agreed in writing by the parties to such transaction, shall occur on the thirtieth (30th) day following the date of the Fair Market Value is determined, or such earlier date as Buyer shall specify. The Purchase Price to be paid for the Seller’s Units to be purchased and sold pursuant to this Section 5 shall be paid in immediately available funds. Upon tender of payment of the Purchase Price for the Seller’s Units being purchased as provided above, thereupon and without any further action on the part of any person being necessary, all right, title and interest in and to the Seller’s Units being purchased shall thereupon pass to the Buyer. Without limitation of the foregoing, the parties and their transferees shall execute and deliver such certificates and other documents and take such further action as the Buyer may reasonably request in order to further evidence the purchase and sale of the Seller’s Units as contemplated hereby.

Closing of Sale. Within sixty (a) In the event that the Repurchase Right is exercised at the time of a Sale of the Company or other arms length third party transaction involving a valuation of the assets or securities of the Company and its Subsidiaries, for purposes of this Agreement, the “Fair Market Value” of each Executive Preferred Unit shall mean (i) the total consideration that would be received by a holder of such Executive Preferred Unit in such Sale of the Company or (ii) deemed price per Executive Preferred Unit based upon the valuation of the assets or securities of the Company and its Subsidiaries in any other arms length third party transaction. In any other cases, for purposes of this Agreement, “Fair Market Value” of any Executive Preferred Unit shall mean the total consideration that would be received by a holder of such Executive Preferred Unit (without any premium or discount attributable to control, minority interest or lack of liquidity for less than all Executive Preferred Units) upon the sale, as of the date of the Purchase Notice, of all the Company’s issued and outstanding Capital Securities in a single transaction or series of related transactions to a buyer willing to pay the highest purchase price that would be received in a sale conducted by a nationally recognized investment banking firm, which buyer is under no compulsion to buy and the holders of such equity securities are under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, with no minority interest discount being applied and no other discount being applied for any other reason. The Fair Market Value of the Executive Preferred Units shall be that which is negotiated by the Company and the Seller. If the Company and the Seller fail to agree on the Fair market Value within thirty (30) days of the date of the Purchase Notice, then the Company and the Seller shall attempt to agree upon an appraiser to determine the Fair Market Value, which such appraiser shall make such determination within thirty (30) days of the date of such person’s engagement, and such determination shall govern. If the Company and the Seller do not, within such 10 day period, agree as to a single appraiser, or if the appraiser appointed as provided above fails to determine such Fair Market Value within thirty (30) days of the date of such person’s engagement, then each of the Company and the Seller, by notice to the other, shall appoint one appraiser. If either the Company or the Seller shall fail to appoint such an appraiser within ten (1060) days after the lapse receipt by Seller of such 10 or 30 day periodBuyer’s Notice of Intent to Close, as applicable, then Seller shall give written notice to Buyer of Seller’s intent to close this transaction (the appraiser appointed by the party that does so appoint an Appraiser shall make the determination of such Fair Market Value “Seller’s Closing Notice”) and such determination shall govern. If two appraisers are appointed and they agree upon such Fair Market Value, their joint determination shall govern. If said two appraisers fail to reach agreement within thirty designating a date not more than fourteen (3014) days after the appointment date of Seller’s Closing Notice (or as soon as possible thereafter to allow Buyer’s assumption of Seller’s loan) that the sale shall be closed in escrow at the Title Company (the “Closing Date”), provided Seller shall have performed all of Seller’s obligations set forth in this Agreement up through Closing Date. If Seller does not give Seller’s Closing Notice within the above sixty-day period, this transaction shall automatically terminate, all Xxxxxxx Money shall be immediately refunded to Buyer, and Seller shall reimburse Buyer on demand for all of Buyer’s out-of-pocket due diligence costs paid to third parties in an amount not to exceed TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00). Copies of the last appraiser paid invoices evidencing such out-of-pocket costs shall also be delivered to Seller. The sale shall be appointed"closed" when the document conveying title and the documents evidencing the loan assumption are recorded and funds are disbursed to Seller. At closing, Buyer and Seller shall deposit with the Title Company all documents and funds required to close the transaction in accordance with the terms of this Agreement. At closing, Seller shall deliver a certification in a form reasonably approved by Buyer that Seller is not a "foreign person" as such term is defined in the Internal Revenue Code and the Treasury Regulations promulgated under the Internal Revenue Code. If Seller is a foreign person and this transaction is not otherwise exempt from FIRPTA regulations, the two appraisers selected shall promptly select a nationally recognized investment banking firm to the be the third appraiser. Such third appraiser shall, within fifteen (15) days following such appraiser’s appointment, select one of the two other appraisals as constituting Fair Market Value. All decisions of the appraiser(s) Title Company shall be rendered in writing and shall be signed by the appraiser(s). The Fair Market Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Fair Market Value determination shall be borne by the Company. (b) The consummation of any purchase and sale of the Seller’s Units under this Section 5.2 shall, unless otherwise agreed in writing instructed by the parties to such transaction, shall occur on withhold and pay the thirtieth (30th) day following the date of the Fair Market Value is determined, or such earlier date as Buyer shall specify. The Purchase Price to be paid for the Seller’s Units to be purchased and sold pursuant to this Section 5 shall be paid in immediately available funds. Upon tender of payment of the Purchase Price for the Seller’s Units being purchased as provided above, thereupon and without any further action on the part of any person being necessary, all right, title and interest in and amount required by law to the Seller’s Units being purchased Internal Revenue Service. At closing, Seller shall thereupon pass convey fee simple title to the BuyerProperty to Buyer by statutory special warranty deed subject only to the Permitted Exceptions (the "Deed"). Without limitation of the foregoingAt closing, the parties Buyer and their transferees Seller shall each also execute and deliver such certificates an Assignment and other documents Assumption of Leases, and take such further action as an Assignment and Assumption of Contracts related to the Property for those contracts that Buyer chooses to assume, provided the same are assumable. Seller shall also deliver to Buyer a Xxxx of Sale conveying to Seller all Personal Property and warranties, if any, related to the use and operation of the Property free and clear of all liens, claims, and encumbrances. The form of each of these Assignment and Assumption agreements and the Xxxx of Sale reasonably drafted and consistent with this Agreement shall be agreed upon in good faith by Buyer and Seller during the Due Diligence Period. At closing, Seller shall pay for and deliver to Buyer a standard form owner's policy of title insurance in the amount of the purchase price insuring fee simple title to the Property in Buyer subject only to the Permitted Exceptions and the standard preprinted exceptions in a standard Ó 1997 Commercial Association of REALTORSÒ Portland/Vancouver (Rev. 9/97) form policy. Buyer may reasonably request obtain an extended ALTA owner’s policy, with such endorsements as Buyer may require at Buyer’s cost, and Seller shall execute an owners title affidavit in order commercially reasonable form to further evidence facilitate the purchase and sale of issuance thereof. In such event, the Seller’s Units as contemplated herebypreprinted standard exceptions shall be removed from such title policy.

Closing of Sale. (aA) In the event that the Repurchase Right is exercised at the time of a Sale of the Company (as defined in the LLC Agreement) or other arms arms-length third party transaction involving a valuation of the assets or securities of the Company CII and its Subsidiariessubsidiaries, for purposes of this Agreement, the “Fair Market Value” of each Executive Preferred Seller’s Unit shall mean (i1) the total consideration that would be received by a holder of such Executive Preferred Seller’s Unit in such Sale of the Company or (ii2) deemed price per Executive Preferred Seller’s Unit based upon the valuation of the assets or securities of the Company CII and its Subsidiaries subsidiaries in any other arms arms-length third party transaction. In any other cases, for purposes of this Agreement, “Fair Market Value” of any Executive Preferred Seller’s Unit shall mean the total consideration that would be received by a holder of such Executive Preferred Seller’s Unit (without any premium or discount attributable to control, minority interest or lack of liquidity for less than all Executive Preferred Seller’s Units) upon the sale, as of the date of the Purchase Notice, of all the CompanyCII’s issued and outstanding Capital Securities capital securities in a single transaction or series of related transactions to a buyer willing to pay the highest purchase price that would be received in a sale conducted by a nationally recognized investment banking firm, which buyer is under no compulsion to buy and the holders of such equity securities are under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, with no minority interest discount being applied and no other discount being applied for any other reason. The Fair Market Value of the Executive Preferred Seller’s Units shall be that which is negotiated by the Company CII and the Seller. If the Company CII and the Seller fail to agree on the Fair market Market Value within thirty (30) days of the date of the Purchase Notice, then the Company CII and the Seller shall attempt to agree upon an appraiser to determine the Fair Market Value, which such appraiser shall make such determination within thirty (30) days of the date of such person’s engagement, and such determination shall govern. If the Company CII and the Seller do not, within such 10 ten (10) day period, agree as to a single appraiser, or if the appraiser appointed as provided above fails to determine such Fair Market Value within thirty (30) days of the date of such person’s engagement, then each of the Company CII and the Seller, by notice to the other, shall appoint one appraiser. If either the Company CII or the Seller shall fail to appoint such an appraiser within ten (10) days after the lapse of such 10 or 30 day period, as applicable, then the appraiser appointed by the party that does so appoint an Appraiser appraiser shall make the determination of such Fair Market Value and such determination shall govern. If two appraisers are appointed and they agree upon such Fair Market Value, their joint determination shall govern. If said two appraisers fail to reach agreement within thirty (30) days after the appointment of the last appraiser to be appointed, the two appraisers selected shall promptly select a nationally recognized investment banking firm to the be the third appraiser. Such third appraiser shall, within fifteen (15) days following such appraiser’s appointment, select one of the two other appraisals as constituting Fair Market Value. All decisions of the appraiser(s) shall be rendered in writing and shall be signed by the appraiser(s). The Fair Market Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Fair Market Value determination shall be borne by the CompanyCII. (b) The consummation of any purchase and sale of the Seller’s Units under this Section 5.2 shall, unless otherwise agreed in writing by the parties to such transaction, shall occur on the thirtieth (30th) day following the date of the Fair Market Value is determined, or such earlier date as Buyer shall specify. The Purchase Price to be paid for the Seller’s Units to be purchased and sold pursuant to this Section 5 shall be paid in immediately available funds. Upon tender of payment of the Purchase Price for the Seller’s Units being purchased as provided above, thereupon and without any further action on the part of any person being necessary, all right, title and interest in and to the Seller’s Units being purchased shall thereupon pass to the Buyer. Without limitation of the foregoing, the parties and their transferees shall execute and deliver such certificates and other documents and take such further action as the Buyer may reasonably request in order to further evidence the purchase and sale of the Seller’s Units as contemplated hereby.

Closing of Sale. (a) Each holder of Warrants and/or Warrant Shares electing to participate in a sale pursuant to this Section 7 shall deliver to the Company (as directed by the Company in writing) by wire transfer in immediately available funds on the Additional Sale Closing Date the aggregate consideration for the number of Issuable Shares or other shares or rights in respect of Preferred Stock, as the case may be, elected to be purchased by such holder (which number shall not be in excess of the Additional Issuable Shares Number). The Company shall promptly (and in any event no later than 5 Business Days after the receipt by the Company of such wire transfer) deliver to each holder of Warrants and/or Warrant Shares electing to participate in a sale pursuant to this Section 7, against such wire transfer, a certificate or certificates representing the number of Issuable Shares or other shares or rights in respect of Preferred Stock elected to be so purchased by such holder. In the case of the issuance of Rights or rights in respect of Preferred Stock, such holder shall receive a certificate or certificates evidencing such Rights or rights. If the Issuable Shares or other shares in respect of Preferred Stock being issued consist of Common Stock or Preferred Stock, such holder shall receive a certificate or certificates evidencing shares of Common Stock or Preferred Stock, as the case may be. (b) In the event that the Repurchase Right is exercised at the time of a Sale Company shall fail to sell all of the Company Issuable Shares or other arms length third party transaction involving a valuation shares or rights in respect of the assets or securities of Preferred Stock referred to in Section 7.1, the Company and its Subsidiariesshall immediately notify the holders of Warrants and/or Warrant Shares which shall have elected to participate in such sale pursuant to this Section 7 and, for purposes of this Agreementin such event, each such holder shall have the “Fair Market Value” of each Executive Preferred Unit shall mean option, by written notice promptly delivered to the Company, to (i) the total consideration that would be received by a holder of such Executive Preferred Unit terminate its election to participate in such Sale of the Company sale under this Section 7 or (ii) deemed price per Executive reduce the number of Issuable Shares or other shares or rights in respect of Preferred Unit based upon the valuation of the assets or securities of the Company and its Subsidiaries in any other arms length third party transaction. In any other cases, for purposes of this Agreement, “Fair Market Value” of any Executive Preferred Unit shall mean the total consideration that would be received by a holder of such Executive Preferred Unit (without any premium or discount attributable to control, minority interest or lack of liquidity for less than all Executive Preferred Units) upon the sale, as of the date of the Purchase Notice, of all the Company’s issued and outstanding Capital Securities in a single transaction or series of related transactions to a buyer willing to pay the highest purchase price that would be received in a sale conducted by a nationally recognized investment banking firm, which buyer is under no compulsion to buy and the holders of such equity securities are under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, with no minority interest discount being applied and no other discount being applied for any other reason. The Fair Market Value of the Executive Preferred Units shall be that which is negotiated by the Company and the Seller. If the Company and the Seller fail to agree on the Fair market Value within thirty (30) days of the date of the Purchase Notice, then the Company and the Seller shall attempt to agree upon an appraiser to determine the Fair Market Value, which such appraiser shall make such determination within thirty (30) days of the date of such person’s engagement, and such determination shall govern. If the Company and the Seller do not, within such 10 day period, agree as to a single appraiser, or if the appraiser appointed as provided above fails to determine such Fair Market Value within thirty (30) days of the date of such person’s engagement, then each of the Company and the Seller, by notice to the other, shall appoint one appraiser. If either the Company or the Seller shall fail to appoint such an appraiser within ten (10) days after the lapse of such 10 or 30 day period, as applicable, then the appraiser appointed by the party that does so appoint an Appraiser shall make the determination of such Fair Market Value and such determination shall govern. If two appraisers are appointed and they agree upon such Fair Market Value, their joint determination shall govern. If said two appraisers fail to reach agreement within thirty (30) days after the appointment of the last appraiser Stock to be appointed, the two appraisers selected shall promptly select a nationally recognized investment banking firm to the be the third appraiser. Such third appraiser shall, within fifteen (15) days following purchased by such appraiser’s appointment, select one of the two other appraisals as constituting Fair Market Value. All decisions of the appraiser(s) shall be rendered in writing and shall be signed by the appraiser(s). The Fair Market Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Fair Market Value determination shall be borne by the Company. (b) The consummation of any purchase and sale of the Seller’s Units holder under this Section 5.2 shall, unless otherwise agreed in writing by 7 to a number that reflects the parties to such transaction, shall occur on the thirtieth (30th) day following the date proportional reduction of the Fair Market Value is determined"Additional Issuable Shares Number," as originally calculated, or such earlier date to the "Additional Issuable Shares Number," as Buyer shall specify. The Purchase Price to be paid for the Seller’s Units to be purchased and sold pursuant to this Section 5 shall be paid determined in immediately available funds. Upon tender of payment light of the Purchase Price for the Seller’s Units being purchased as provided above, thereupon and without any further action on the part number of any person being necessary, all right, title and interest Issuable Shares or other shares or rights in and to the Seller’s Units being purchased shall thereupon pass to the Buyer. Without limitation respect of the foregoing, the parties and their transferees shall execute and deliver such certificates and other documents and take such further action as the Buyer may reasonably request in order to further evidence the purchase and sale of the Seller’s Units as contemplated herebyPreferred Stock actually sold.