Common use of Company Buy-Sell Option Clause in Contracts

Company Buy-Sell Option. 7.1.1 Subject to clause 20.2.2, at any time after the Initial Investment Term, any Shareholder wishing to exit the joint venture established by this agreement (the “Company Offeror”) may serve notice (the “Company Buy-Sell Notice”) on the Company and the other Shareholder (the “Company Offeree”) stating that the Company Offeror is exercising its rights pursuant to this clause 7.1 and specifying the Company Offeror’s estimate of the gross asset value of the Company (the “Estimated Gross Asset Value”) from which the corresponding price per A Share or B Share (as appropriate) shall be calculated in accordance with the proviso to this clause 7.1.1 and at which the Company Offeree may elect either: (a) to buy the Company Offeror’s interest in the Company (the “Company Buy Offer”); or (b) to sell the Company Offeree’s interest in the Company to the Company Offeror (the “Company Sell Offer”), provided that, the price per A Share or B Share (as appropriate) offered by the Company Offeror shall be determined by reference to the value of the relevant Shares taking into account the amount that would be distributed to the relevant Shareholder if the Company’s assets were sold at the date of the Company Buy-Sell Notice for the Estimated Gross Asset Value and the Company and its subsidiaries were wound up and all debts and liabilities of the Group repaid or discharged and the proceeds following such winding up were distributed to the Shareholders pursuant to clause 11.1, provided further that the price per A Share or B Share (as appropriate) shall be such amount as agreed between the Company Offeree and the Company Offeror or, where such amount cannot be agreed, to be determined by the Auditors in accordance with the principles contained in this clause 7.1.1 (or if they shall fail, or decline, to do so) a firm of chartered accountants agreed upon by the Shareholders or in the event of failure to so agree nominated by the president (or the next most senior officer available) of the Institute of Chartered Accountants upon the application of either Shareholder. The Auditor (or chartered accountant) shall act as an expert (and not an arbitrator) and the determination of the Auditor (or chartered accountant) shall be final and binding on the parties except for manifest error which shall be corrected forthwith. 7.1.2 Upon service of the Company Buy-Sell Notice, the Company Offeree shall have the option to elect to accept either the Company Buy Offer or the Company Sell Offer, in each case by serving written notice on the Company and the other Shareholder within sixty (60) days after the date of service of the Company Buy-Sell Notice or if later when the price per A Share or B Share (as appropriate) is agreed or determined, failing which the Company Offeree shall be deemed to have accepted the Company Sell Offer. 7.1.3 Upon acceptance (or deemed acceptance) of the Company Buy Offer or the Company Sell Offer, as the case may be, the Shareholders shall complete the transfer of the relevant interest in the Company at the relevant price per Share in accordance with clause 22. 7.1.4 If the Company Offeree accepts the Company Buy Offer but the Company Offeree fails to pay the relevant price per Share or complete the transfer of the Company Offeror’s interest in the Company within the prescribed time period specified in clause 22.1, other than due to the fault or delay of the Company Offeror, the Company Offeror may, within one hundred and eighty (180) days after the expiry of the relevant thirty (30) day period referred to in clause 22.1, sell its interest in the Company to a third party, provided that the purchase price of such interest is not less than eighty five per cent (85%) of the price per Share of the Company Offeror’s Shares agreed or determined in accordance with clause 7.1. 7.1.5 The Shareholder acquiring the other Shareholder’s interest in the Company pursuant to this clause 7.1 may nominate another person (including a third party) to purchase the other Shareholder’s interest in the Company, provided that the selling Shareholder receives the price per Share pursuant to the relevant Company Buy Offer or Company Sell Offer.

Company Buy-Sell Option. 7.1.1 Subject to clause 20.2.2, (a) If at any time after (i) a Deadlock occurs with respect to a Major Decision which is not resolved through an additional meeting of the Initial Investment TermExecutive Committee (the “Second Company Buy-Sell Meeting”) or (ii) the Executive Committee has delivered a removal notice to the Managing Member pursuant to Section 3.7(b), any Shareholder wishing to exit the joint venture established by this agreement then either Member (the “Company Offeror”) may serve institute the following reciprocal buy-sell procedure (the “Company Bay-Sell Procedure”) within one hundred (100) days after the Second Company Buy-Sell Meeting or the delivery of the removal notice, by giving notice to the other Member (the “Company Offeree”) in accordance with Section 14.1 (the “Company Buy-Sell Notice”), which notice shall specify (i) on the Company and the other Shareholder (the “Company Offeree”) stating that the Company Offeror is exercising its rights triggering the Company Buy-Sell Procedure pursuant to this clause 7.1 Section 13.1, and specifying (ii) the value in U.S. dollars in which the Company Offeror’s estimate Offeror values the entire Company; provided, however, that no Company Buy-Sell Procedure may be instituted by a Member that has elected (on behalf of the gross asset value Company) to receive, in the immediately preceding 12-month period, the Company Buy-Sell Deposit pursuant to another Company Buy-Sell Procedure. The delivery of the Company Buy-Sell Notice shall simultaneously constitute (the “Estimated Gross Asset Value”x) from which the corresponding price per A Share or B Share (as appropriate) shall be calculated in accordance with the proviso to this clause 7.1.1 and at which the Company Offeree may elect either: (a) an offer to buy the Company OfferorOfferee’s interest Interest for a sum (the “Company Buy-Sell Purchase Price”) equal to the greater of (1) Ten and No/100 Dollars ($10.00) and (2) the amount that would be distributed to the Company Offeree pursuant to Section 5.1(b) upon a sale of the Company to a third party for the amount set forth in the Company Buy-Sell Notice (the “Company Buy Offer”); or , and (by) an offer to sell the Company OffereeOfferor’s interest in Interest for a sum equal to greater of (1) Ten and No/100 Dollars ($10.00) and (2) the Company amount that would be distributed to the Company Offeror pursuant to Section 5.1 (b) upon a sale of the Company to a third party for the amount set forth in the Company Buy-Sell Notice (the “Company Sell Offer”), provided that, . The parties hereby agree that the price per A Share value set forth in the Company Buy-Sell Notice shall be automatically (x) increased by the amount of any capital contributions (including Priority Loans) made by the Members to the Company pursuant to this Agreement or B Share any Contribution Agreement and (as appropriatey) offered decreased by the amount of any distributions made by the Company Offeror shall be determined by reference to the value of Members pursuant to this Agreement (other than Section 5.1(a)), in each case during the relevant Shares taking into account period from the amount that would be distributed to the relevant Shareholder if the Company’s assets were sold at the date delivery of the Company Buy-Sell Notice for to the Estimated Gross Asset Value and consummation of the Company and its subsidiaries were wound up and all debts and liabilities Buy-Sell Procedure (whether by the consummation of the Group repaid or discharged and the proceeds following such winding up were distributed to the Shareholders pursuant to clause 11.1, provided further that the price per A Share or B Share (as appropriate) shall be such amount as agreed between sale of the Company Offeree and or the receipt by the Company Offeror or, where such amount cannot be agreed, to be determined by the Auditors in accordance with the principles contained in this clause 7.1.1 (or if they shall fail, or decline, to do so) a firm of chartered accountants agreed upon by the Shareholders or in the event of failure to so agree nominated by the president (or the next most senior officer available) of the Institute of Chartered Accountants upon the application of either Shareholder. The Auditor (or chartered accountant) shall act as an expert (and not an arbitrator) and the determination of the Auditor (or chartered accountant) shall be final and binding on the parties except for manifest error which shall be corrected forthwithCompany Buy-Sell Deposit). 7.1.2 (b) Upon service receipt of the Company Buy-Sell Notice, the Company Offeree shall have the option to elect to accept either the Company Buy Offer or the Company Sell Offer, in each case by serving written notice on the Company and the other Shareholder within sixty (60) 30 days after from the date of service of it receives the Company Buy-Sell Notice or if later when Notice. If the price per A Share or B Share Company Offeree does not respond within such 30-day period (as appropriate) is agreed or determinedthe “Company Buy-Sell Offer Period”), failing which the Company Offeree shall be deemed to have accepted the Company Sell Buy Offer. 7.1.3 (c) Upon the acceptance (or deemed acceptance) of the Company Buy Offer or Offer, the Company Offeror shall deposit with a nationally recognized title insurance company an xxxxxxx money deposit equal to one and a half percent (1.5%) of the amount which the Company Offeror values the entire Company (the “Company Buy-Sell Deposit”) (or replace the Company Buy-Sell Deposit with its own funds, if such Company Buy-Sell Deposit has been previously deposited by the Company Offeree), and the Company Offeree and the Company Offeror shall consummate the sale of the Company Offeree’s Interest within 60 days from the Company Offeree’s acceptance (or deemed acceptance) of the Company Buy Offer. The Members hereby agree that: (i) the Company Offeror would be irreparably injured in the event of a breach or threatened breach by the Company Offeree of its obligations to consummate the sale of the Company Offeree’s Interest within the specified time period; (ii) monetary damages would not be an adequate remedy for such breach, as (iii) the case Company Offeror shall be entitled (without the need to post any bond) to seek and obtain a decree or order of specific performance to enforce the observance and performance of such sale and an injunction restraining such breach or threatened breach, and (iv) the existence of any claims that the Company Offeree may behave against the Company Offeror, whether under this Agreement or any other agreement, shall not be a defense to (or reason for the delay of) the enforcement by the Company Offeror of its rights or remedies under this Agreement. Notwithstanding any to the contrary in the foregoing, if the Company Offeror defaults on its purchase of the Company Offeree’s Interest, the Shareholders shall complete the transfer of the relevant interest in Company Offeree may elect to either (1) have the Company at receive the relevant price per Share Company Buy-Sell Deposit, which shall be distributed to the Members in accordance with clause 22. 7.1.4 If the priority set forth in Section 5.1 (b), it being agreed by the parties that the portion of the Company Buy-Sell Deposit that would be received by the Company Offeree accepts shall constitute liquidated damages, and the Company Buy Offer but damages to the Company Offeree fails from the default of the Company Offeror are uncertain at this time, and that the portion of the Company Buy-Sell Deposit receivable by the Company Offeree is a fair estimation of the damages that would be suffered by the Company Offeree and is not a penalty or (2) treat the Company Offeror as having made a Company Sell Offer to pay the relevant Company Offeree, and the Company Offeree may exercise its right to purchase the Company Offeror’s Interest at a purchase price per Share or complete based on the transfer valuation of the Company set forth in the initial Company Buy-Sell Notice by written notice to the Company Offeror within 12 Business Days after the Company Offeror’s default, and the parties shall proceed to consummate the sale of the Company Offeror’s interest Interest, in accordance with Section 13.1(d) below. (d) Upon the Company within the prescribed time period specified in clause 22.1, other than due to the fault or delay acceptance of the Company OfferorSell Offer by the Company Offeree, the Company Offeror may, within one hundred and eighty (180) days after the expiry of the relevant thirty (30) day period referred to in clause 22.1, sell its interest in Offeree shall deposit with a nationally recognized title insurance company the Company to a third partyBuy-Sell Deposit (or replace the Company Buy-Sell Deposit with its own funds, provided that if such Company Buy-Sell Deposit has been previously deposited by the purchase price of such interest is not less than eighty five per cent (85%) of Company Offeror), and the price per Share Company Offeree and the Company Offeror shall consummate the sale of the Company Offeror’s Shares agreed Interest within 60 days from the Company Offeree’s acceptance of the Company Sell Offer (the “Company Buy-Sell Closing Date”). The Members hereby agree that: (i) the Company Offeree would be irreparably injured in the event of a breach or determined threatened breach by the Company Offeror of its obligations to consummate the sale of the Company Offeror’s Interest within the specified time period; (ii) monetary damages would not be an adequate remedy for such breach, (iii) the Company Offeree shall be entitled (without the need to post any bond) to seek and obtain a decree or order of specific performance to enforce the observance and performance of such sale and an injunction restraining such breach or threatened breach, and (iv) the existence of any claims that the Company Offeror may have against the Company Offeree, whether under this Agreement or any other agreement, shall not be a defense to (or reason for the delay of) the enforcement by the Company Offeree of its rights or remedies under this Agreement. Notwithstanding any to the contrary in the foregoing, if the Company Offeree defaults on its purchase of the Company Offeror’s Interest, the Company Offeror may elect to either (1) have the Company receive the Company Buy-Sell Deposit, which shall be distributed to the Members in accordance with clause 7.1the priority set forth in Section 5.1(b), it being agreed by the parties that the portion of the Company Buy-Sell Deposit that would be received by the Company Offeror shall constitute liquidated damages, and the damages to the Company Offeror from the default of the Company Offeree are uncertain at this time, and that the portion of the Company Buy-Sell Deposit receivable by the Company Offeror is a fair estimation of the damages that would be suffered by the Company Offeror and is not a penalty or (2) treat the Company Offeree as having made a Company Buy Offer to the Company Offeror, and the Company Offeror may exercise its right to purchase the Company Offeree’s Interest at a purchase price based on the valuation of the Company set forth in the initial Company Buy-Sell Notice by written notice to the Company Offeree within 12 Business Days after the Company Offeree’s default, and the parties shall proceed to consummate the sale of the Company Offeree’s Interest, in accordance with Section 13.1(c) above. 7.1.5 (e) Effective as of the Company Buy-Sell Closing Date, the Member selling its Interest (the “Withdrawing Party”) shall cease to be a Member of the Company and the provisions of this Section 13.1(e) shall apply. The Shareholder acquiring purchasing Member (the “Continuing Party”) shall also obtain, as a condition to the occurrence of the foregoing events on the Company Buy-Sell Closing Date, a release from any personal recourse liabilities, if any, for the Withdrawing Party (or any affiliates of a Withdrawing Party that have executed and delivered guaranties, indemnities or other Shareholderrecourse obligations that are not limited to the Company) for any Loan to the Company which is not paid in full on the Company Buy-Sell Closing Date; provided, however, if the Continuing Party is unable to obtain a release from liability for the Withdrawing Party or its affiliates for any such personal or recourse liabilities, the Continuing Party shall deliver to the Withdrawing Party on the Company Buy-Sell Closing Date an indemnity from the Continuing Party and the Company for the benefit of the Withdrawing Party (or its applicable affiliates) for claims, actions, damages, costs, expenses, and liabilities of the Company arising after the Company Buy-Sell Closing Date from such Loan, excepting therefrom any such claims, actions, damages, costs, expenses, and liabilities arising out of the negligence, willful misconduct, misrepresentation or fraud of the Withdrawing Party (or any other indemnified affiliates); provided, however, if the Continuing Member shall not be financially capable of performing such indemnity obligations as determined by the Withdrawing Party in the exercise of its reasonable discretion, then the Continuing Party shall provide another entity reasonably acceptable to the Withdrawing Party to join in and be responsible for performing such indemnity obligations of the Continuing Party as a condition precedent to the obligations of the Withdrawing Party to so withdraw. The Company Buy-Sell Purchase Price shall not include real estate closing prorations, which shall be separately adjusted between the parties pursuant to this Section 13.1(e). The Company Buy-Sell Deposit shall be credited against the Company Buy-Sell Purchase Price at closing. The Continuing Party shall pay the Company Buy-Sell Purchase Price (less the Company Buy-Sell Deposit) to the Withdrawing Party to the Company by wire transfer of immediately available U.S. funds, and the Members shall execute and deliver amendments to this Agreement and any statement with regard to the Company filed in any public records, reflecting the withdrawal of the Withdrawing Party from the Company as of the Company Buy-Sell Closing Date. The Continuing Party and the Withdrawing Party shall cooperate with one another in structuring the transaction in which the Withdrawing Party’s interest Interest is purchased so long as such transaction structure does not adversely impact the Withdrawing Party in any manner (including structuring such transaction as a redemption of the Withdrawing Member’s Interest by the Company with a simultaneous capital contribution by the Continuing Member or other affiliated party). Any such structure that results in a tax and accounting treatment such transaction with respect to the Withdrawing Party that is no less favorable than a sale of the Withdrawing Party’s Interest for a price equal to the amount that would be distributable to the Withdrawing Party upon a sale of all of the Properties for the value specified in the Company pursuant Buy-Sell Notice (subject to the other specific provisions of this clause 7.1 may nominate another person Article 13 concerning payment of costs, distributions etc.), shall be deemed not to adversely impact the Withdrawing Party. The Withdrawing Party shall provide customary representations and warranties as to (i) its title to its Interests (including a third partysuch title being free and clear of any liens or encumbrances of any nature) and (ii) the existence, good standing and authority of the Withdrawing Party to purchase convey its Interest to the other Shareholder’s interest in Continuing Party, but shall not be obligated to provide any representations or warranties concerning the assets of the Company. In addition, provided that traditional real estate closing prorations shall be made, and the selling Shareholder receives the price per Share pursuant Company Buy-Sell Purchase Price payable to the relevant Company Buy Offer Withdrawing Party shall be increased or Company Sell Offerdecreased by the net amount thereof due to or from the Withdrawing Party.

Company Buy-Sell Option. 7.1.1 Subject to clause 20.2.2, at any time after the Initial Investment Term, any Shareholder wishing to exit the joint venture established by this agreement (the “Company Offeror”) may serve notice (the “Company Buy-Sell Notice”) on the Company and the other Shareholder (the “Company Offeree”) stating that the Company Offeror is exercising its rights pursuant to this clause 7.1 and specifying the Company Offeror’s estimate of the gross asset value of the Company (the “Estimated Gross Asset Value”) from which the corresponding price per A Share or B Share (as appropriate) and the value of the PECs held by the relevant Shareholder shall be calculated in accordance with the proviso to this clause 7.1.1 and at which the Company Offeree may elect either: (a) to buy the Company Offeror’s interest in the Company (the “Company Buy Offer”); or (b) to sell the Company Offeree’s interest in the Company to the Company Offeror (the “Company Sell Offer”), provided that, the price per A Share or B Share (as appropriate) and the price of the relevant PECs offered by the Company Offeror shall be determined by reference to the value of the relevant Shares or PECs taking into account the amount that would be distributed to the relevant Shareholder if the Company’s assets were sold at the date of the Company Buy-Sell Notice for the Estimated Gross Asset Value and the Company and its subsidiaries were wound up and all debts and liabilities of the Group repaid or discharged and the proceeds following such winding up were distributed to the Shareholders pursuant to clause 11.1, provided further that the price per A Share or B Share (as appropriate) and the price of the relevant PECs shall be such amount as agreed between the Company Offeree and the Company Offeror or, where such amount cannot be agreed, to be determined by the Auditors in accordance with the principles contained in this clause 7.1.1 (or if they shall fail, or decline, to do so) a firm of chartered accountants agreed upon by the Shareholders or in the event of failure to so agree nominated by the president (or the next most senior officer available) of the Institute of Chartered Accountants upon the application of either Shareholder. The Auditor (or chartered accountant) shall act as an expert (and not an arbitrator) and the determination of the Auditor (or chartered accountant) shall be final and binding on the parties except for manifest error which shall be corrected forthwith. 7.1.2 Upon service of the Company Buy-Sell Notice, the Company Offeree shall have the option to elect to accept either the Company Buy Offer or the Company Sell Offer, in each case by serving written notice on the Company and the other Shareholder within sixty (60) days after the date of service of the Company Buy-Sell Notice or if later when the price per A Share or B Share (as appropriate) and price of the relevant PECs is agreed or determined, failing which the Company Offeree shall be deemed to have accepted the Company Sell Offer. 7.1.3 Upon acceptance (or deemed acceptance) of the Company Buy Offer or the Company Sell Offer, as the case may be, the Shareholders shall complete the transfer of the relevant interest in the Company at the relevant price per Share or price of each PEC in accordance with clause 22. 7.1.4 If the Company Offeree accepts the Company Buy Offer but the Company Offeree fails to pay the relevant price per Share or PEC or complete the transfer of the Company Offeror’s interest in the Company within the prescribed time period specified in clause 22.1, other than due to the fault or delay of the Company Offeror, the Company Offeror may, within one hundred and eighty (180) days after the expiry of the relevant thirty (30) day period referred to in clause 22.1, sell its interest in the Company to a third party, provided that the purchase price of such interest is not less than eighty five per cent (85%) of the price per Share of the Company Offeror’s Shares agreed or determined in accordance with clause 7.1.Company 7.1.5 The Shareholder acquiring the other Shareholder’s interest in the Company pursuant to this clause 7.1 may nominate another person (including a third party) to purchase the other Shareholder’s interest in the Company, provided that the selling Shareholder receives the price per Share and PEC pursuant to the relevant Company Buy Offer or Company Sell Offer.

Company Buy-Sell Option. 7.1.1 Subject to clause 20.2.2, (a) If at any time after time, (i) except as provided in Section 13.2 below, a Deadlock occurs with respect to a Major Decision which is not resolved through an additional meeting of the Initial Investment TermExecutive Committee (the “Second Company Buy-Sell Meeting”) or (ii) the Executive Committee has delivered a removal notice to the Managing Member pursuant to Section 3.7(b), any Shareholder wishing to exit the joint venture established by this agreement then either Member (the “Company Offeror”) may serve institute the following reciprocal buy-sell procedure (the “Company Buy-Sell Procedure”) within one hundred (100) days after the Second Company Buy-Sell Meeting or the delivery of the removal notice, by giving notice to the other Member (the “Company Offeree”) in accordance with Section 14.1 (the “Company Buy-Sell Notice”), which notice shall specify (i) on the Company and the other Shareholder (the “Company Offeree”) stating that the Company Offeror is exercising its rights triggering the Company Buy-Sell Procedure pursuant to this clause 7.1 Section 13.1, and specifying (ii) the value in U.S. dollars in which the Company Offeror’s estimate Offeror values the entire Company; provided, however, that no Company Buy-Sell Procedure may be instituted by a Member that has elected (on behalf of the gross asset value Company) to receive, in the immediately preceding 12-month period, the Company Buy-Sell Deposit pursuant to another Company Buy-Sell Procedure. The delivery of the Company Buy-Sell Notice shall simultaneously constitute (the “Estimated Gross Asset Value”x) from which the corresponding price per A Share or B Share (as appropriate) shall be calculated in accordance with the proviso to this clause 7.1.1 and at which the Company Offeree may elect either: (a) an offer to buy the Company OfferorOfferee’s interest Interest for a sum (the “Company Buy-Sell Purchase Price”) equal to the greater of (1) Ten and No/100 Dollars ($10.00) and (2) the amount that would be distributed to the Company Offeree pursuant to Section 5.1(b) upon a sale of the Company to a third party for the amount set forth in the Company Buy-Sell Notice (the “Company Buy Offer”); or , and (by) an offer to sell the Company OffereeOfferor’s interest in Interest for a sum equal to greater of (1) Ten and No/100 Dollars ($10.00) and (2) the Company amount that would be distributed to the Company Offeror pursuant to Section 5.1(b) upon a sale of the Company to a third party for the amount set forth in the Company Buy-Sell Notice (the “Company Sell Offer”). The parties hereby agree that the value set forth in the Company Buy-Sell Notice shall take into account the value of all cash, provided that, accounts receivable and prepaid expenses and be automatically (x) increased by the price per A Share amount of any capital contributions (including Priority Loans) made by the Members to the Company pursuant to this Agreement or B Share any Contribution Agreement and (as appropriatey) offered decreased by the amount of any distributions made by the Company Offeror shall be determined by reference to the value of Members pursuant to this Agreement (other than Section 5.1(a)), in each case during the relevant Shares taking into account period from the amount that would be distributed to the relevant Shareholder if the Company’s assets were sold at the date delivery of the Company Buy-Sell Notice for to the Estimated Gross Asset Value and consummation of the Company and its subsidiaries were wound up and all debts and liabilities Buy-Sell Procedure (whether by the consummation of the Group repaid or discharged and the proceeds following such winding up were distributed to the Shareholders pursuant to clause 11.1, provided further that the price per A Share or B Share (as appropriate) shall be such amount as agreed between sale of the Company Offeree and or the receipt by the Company Offeror or, where such amount cannot be agreed, to be determined by the Auditors in accordance with the principles contained in this clause 7.1.1 (or if they shall fail, or decline, to do so) a firm of chartered accountants agreed upon by the Shareholders or in the event of failure to so agree nominated by the president (or the next most senior officer available) of the Institute of Chartered Accountants upon the application of either Shareholder. The Auditor (or chartered accountant) shall act as an expert (and not an arbitrator) and the determination of the Auditor (or chartered accountant) shall be final and binding on the parties except for manifest error which shall be corrected forthwithCompany Buy-Sell Deposit). 7.1.2 (b) Upon service receipt of the Company Buy-Sell Notice, the Company Offeree shall have the option to elect to accept either the Company Buy Offer or the Company Sell Offer, in each case by serving written notice on the Company and the other Shareholder within sixty (60) 30 days after from the date of service of it receives the Company Buy-Sell Notice or if later when Notice. If the price per A Share or B Share Company Offeree does not respond within such 30-day period (as appropriate) is agreed or determinedthe “Company Buy-Sell Offer Period”), failing which the Company Offeree shall be deemed to have accepted the Company Sell Buy Offer. 7.1.3 (c) Upon the acceptance (or deemed acceptance) of the Company Buy Offer or Offer, the Company Offeror shall deposit with a nationally recognized title insurance company an xxxxxxx money deposit equal to one and a half percent (1.5%) of the amount which the Company Offeror values the entire Company (the “Company Buy-Sell Deposit”) (or replace the Company Buy-Sell Deposit with its own funds, if such Company Buy-Sell Deposit has been previously deposited by the Company Offeree), and the Company Offeree and the Company Offeror shall consummate the sale of the Company Offeree’s Interest within 60 days from the Company Offeree’s acceptance (or deemed acceptance) of the Company Buy Offer. The Members hereby agree that: (i) the Company Offeror would be irreparably injured in the event of a breach or threatened breach by the Company Offeree of its obligations to consummate the sale of the Company Offeree’s Interest within the specified time period; (ii) monetary damages would not be an adequate remedy for such breach, as (iii) the case Company Offeror shall be entitled (without the need to post any bond) to seek and obtain a decree or order of specific performance to enforce the observance and performance of such sale and an injunction restraining such breach or threatened breach, and (iv) the existence of any claims that the Company Offeree may behave against the Company Offeror, whether under this Agreement or any other agreement, shall not be a defense to (or reason for the delay of) the enforcement by the Company Offeror of its rights or remedies under this Agreement. Notwithstanding any to the contrary in the foregoing, if the Company Offeror defaults on its purchase of the Company Offeree’s Interest, the Shareholders shall complete the transfer of the relevant interest in Company Offeree may elect to either (1) have the Company at receive the relevant price per Share Company Buy-Sell Deposit, which shall be distributed to the Members in accordance with clause 22. 7.1.4 If the priority set forth in Section 5.1(b), it being agreed by the parties that the portion of the Company Buy-Sell Deposit that would be received by the Company Offeree accepts shall constitute liquidated damages, and the Company Buy Offer but damages to the Company Offeree fails from the default of the Company Offeror are uncertain at this time, and that the portion of the Company Buy-Sell Deposit receivable by the Company Offeree is a fair estimation of the damages that would be suffered by the Company Offeree and is not a penalty or (2) treat the Company Offeror as having made a Company Sell Offer to pay the relevant Company Offeree, and the Company Offeree may exercise its right to purchase the Company Offeror’s Interest at a purchase price per Share or complete based on the transfer valuation of the Company set forth in the initial Company Buy-Sell Notice by written notice to the Company Offeror within 12 Business Days after the Company Offeror’s default, and the parties shall proceed to consummate the sale of the Company Offeror’s interest Interest, in accordance with Section 13.1(d) below. (d) Upon the Company within the prescribed time period specified in clause 22.1, other than due to the fault or delay acceptance of the Company OfferorSell Offer by the Company Offeree, the Company Offeror may, within one hundred and eighty (180) days after the expiry of the relevant thirty (30) day period referred to in clause 22.1, sell its interest in Offeree shall deposit with a nationally recognized title insurance company the Company to a third partyBuy-Sell Deposit (or replace the Company Buy-Sell Deposit with its own funds, provided that if such Company Buy-Sell Deposit has been previously deposited by the purchase price of such interest is not less than eighty five per cent (85%) of Company Offeror), and the price per Share Company Offeree and the Company Offeror shall consummate the sale of the Company Offeror’s Shares agreed Interest within 60 days from the Company Offeree’s acceptance of the Company Sell Offer (the “Company Buy-Sell Closing Date”). The Members hereby agree that: (i) the Company Offeree would be irreparably injured in the event of a breach or determined threatened breach by the Company Offeror of its obligations to consummate the sale of the Company Offeror’s Interest within the specified time period; (ii) monetary damages would not be an adequate remedy for such breach, (iii) the Company Offeree shall be entitled (without the need to post any bond) to seek and obtain a decree or order of specific performance to enforce the observance and performance of such sale and an injunction restraining such breach or threatened breach, and (iv) the existence of any claims that the Company Offeror may have against the Company Offeree, whether under this Agreement or any other agreement, shall not be a defense to (or reason for the delay of) the enforcement by the Company Offeree of its rights or remedies under this Agreement. Notwithstanding any to the contrary in the foregoing, if the Company Offeree defaults on its purchase of the Company Offeror’s Interest, the Company Offeror may elect to either (1) have the Company receive the Company Buy-Sell Deposit, which shall be distributed to the Members in accordance with clause 7.1the priority set forth in Section 5.1(b), it being agreed by the parties that the portion of the Company Buy-Sell Deposit that would be received by the Company Offeror shall constitute liquidated damages, and the damages to the Company Offeror from the default of the Company Offeree are uncertain at this time, and that the portion of the Company Buy-Sell Deposit receivable by the Company Offeror is a fair estimation of the damages that would be suffered by the Company Offeror and is not a penalty or (2) treat the Company Offeree as having made a Company Buy Offer to the Company Offeror, and the Company Offeror may exercise its right to purchase the Company Offeree’s Interest at a purchase price based on the valuation of the Company set forth in the initial Company Buy-Sell Notice by written notice to the Company Offeree within 12 Business Days after the Company Offeree’s default, and the parties shall proceed to consummate the sale of the Company Offeree’s Interest, in accordance with Section 13.1(c) above. 7.1.5 (e) Effective as of the Company Buy-Sell Closing Date, the Member selling its Interest (the “Withdrawing Party”) shall cease to be a Member of the Company and the provisions of this Section 13.1(e) shall apply. The Shareholder acquiring purchasing Member (the “Continuing Party”) shall also obtain, as a condition to the occurrence of the foregoing events on the Company Buy-Sell Closing Date, a release from any personal recourse liabilities, if any, for the Withdrawing Party (or any affiliates of a Withdrawing Party that have executed and delivered guaranties, indemnities or other Shareholderrecourse obligations that are not limited to the Company) for any Loan to the Company which is not paid in full on the Company Buy-Sell Closing Date; provided, however, if the Continuing Party is unable to obtain a release from liability for the Withdrawing Party or its affiliates for any such personal or recourse liabilities, the Continuing Party shall deliver to the Withdrawing Party on the Company Buy-Sell Closing Date an indemnity from the Continuing Party and the Company for the benefit of the Withdrawing Party (or its applicable affiliates) for claims, actions, damages, costs, expenses, and liabilities of the Company arising after the Company Buy-Sell Closing Date from such Loan, excepting therefrom any such claims, actions, damages, costs, expenses, and liabilities arising out of the gross negligence, willful misconduct, misrepresentation or fraud of the Withdrawing Party (or any other indemnified affiliates); provided, however, if the Continuing Member shall not be financially capable of performing such indemnity obligations as determined by the Withdrawing Party in the exercise of its reasonable discretion, then the Continuing Party shall provide another entity reasonably acceptable to the Withdrawing Party to join in and be responsible for performing such indemnity obligations of the Continuing Party as a condition precedent to the obligations of the Withdrawing Party to so withdraw. The Company Buy-Sell Purchase Price shall not include real estate closing prorations, which shall be separately adjusted between the parties pursuant to this Section 13.1(e). The Company Buy-Sell Deposit shall be credited against the Company Buy-Sell Purchase Price at closing. The Continuing Party shall pay the Company Buy-Sell Purchase Price (less the Company Buy-Sell Deposit) to the Withdrawing Party to the Company by wire transfer of immediately available U.S. funds, and the Members shall execute and deliver amendments to this Agreement and any statement with regard to the Company filed in any public records, reflecting the withdrawal of the Withdrawing Party from the Company as of the Company Buy-Sell Closing Date. The Continuing Party and the Withdrawing Party shall cooperate with one another in structuring the transaction in which the Withdrawing Party’s interest Interest is purchased so long as such transaction structure does not adversely impact the Withdrawing Party in any manner (including structuring such transaction as a redemption of the Withdrawing Member’s Interest by the Company with a simultaneous capital contribution by the Continuing Member or other affiliated party). Any such structure that results in a tax and accounting treatment such transaction with respect to the Withdrawing Party that is no less favorable than a sale of the Withdrawing Party’s Interest for a price equal to the amount that would be distributable to the Withdrawing Party upon a sale of all of the Properties for the value specified in the Company pursuant Buy-Sell Notice (subject to the other specific provisions of this clause 7.1 may nominate another person Article 13 concerning payment of costs, distributions etc.), shall be deemed not to adversely impact the Withdrawing Party. The Withdrawing Party shall provide customary representations and warranties as to (i) its title to its Interests (including a third partysuch title being free and clear of any liens or encumbrances of any nature) and (ii) the existence, good standing and authority of the Withdrawing Party to purchase convey its Interest to the other Shareholder’s interest in Continuing Party, but shall not be obligated to provide any representations or warranties concerning the assets of the Company. In addition, provided that traditional real estate closing prorations shall be made, and the selling Shareholder receives the price per Share pursuant Company Buy-Sell Purchase Price payable to the relevant Company Buy Offer Withdrawing Party shall be increased or Company Sell Offerdecreased by the net amount thereof due to or from the Withdrawing Party.