Common use of Provisions Generally Applicable to Sales Clause in Contracts

Provisions Generally Applicable to Sales. The following provisions shall be applicable to sales under Sections 11.6 and/or 14.2, as indicated: (a) For purposes of any sale of an Entire Interest of a Member, the purchase price shall be adjusted to reflect assets, liabilities and income of the Company not reflected in the Company’s financial statements at the time of the notice of election. Furthermore, the purchase price, as so adjusted, shall be subject to such post-closing adjustments as the circumstances may require. The amount payable to the selling Member for its Entire Interest shall be calculated based on the purchase price, as so adjusted, and distributable on account of such Entire Interest pursuant to the calculation set forth in Section 10.3(b), payable by wire transfer of immediately available funds to the seller’s account. All prorations of real estate taxes, rents, etc., shall be made as of the date of sale. All transfer taxes and recording fees shall be paid for by the party usually charged with such payment under local custom. (b) The purchase price for an Entire Interest shall be further adjusted to account for any outstanding Delinquency Loan(s) made by the selling Member to the Company. Such Delinquency Loan(s), including interest thereon accrued and unpaid, shall be purchased at par by the purchasing Member for the principal amount thereof and accrued and unpaid interest thereon as a condition precedent to such sale. The purchase price for such Delinquency Loan(s) shall be paid by wire transfer of immediately available funds to the selling Member’s account. At the closing, the selling Member shall deliver to the purchasing Member any note and bond evidencing such Delinquency Loan(s) and all documents securing the same and an assignment or satisfaction thereof, in a form reasonably acceptable to the purchasing Member. (c) On payment of the purchase price for an Entire Interest, the purchasing Member shall, at its option, either (1) obtain a release of the selling Member from all liability, direct or contingent, by all holders of all Company debts, obligations or claims against the Company for which any Member is or may be personally liable except for any debts, obligations or claims which are fully insured by public liability insurer(s) acceptable to the selling Member, or (2) cause all such debts, obligations or claims to be paid in full at the closing, or (3) deliver to the selling Member an agreement in a commercially reasonable form and substance to defend, indemnify and save the selling Member harmless from any actions, claims or loss arising from any debt, obligation or claim of the Company arising prior to date of sale. (d) All Members (including the selling Member) shall be entitled to any distributions of Operating Cash Flow from the Company following the giving of the notice of election and until the closing. (e) At the closing of the sale of the Entire Interest of a Member, the selling Member shall execute an assignment of its interest in the Company, free and clear of all liens, encumbrances and adverse claims, which assignment shall be in form and substance reasonably satisfactory to the purchasing Member, and such other instruments as the purchasing Member shall reasonably require to assign the Entire Interest of the selling Member to such person or entity as the purchasing Member may designate. For any sale or transfer under, and subject to the provisions of Article 11 of this Agreement, the purchasing Member may designate an assignee to take ownership of the Entire Interest, which assignee need not be an Affiliate of the Purchasing Member, subject to the other Members’ reasonable consent. (f) In the event of a purchase and sale pursuant to Section 14.2, the Company shall be dissolved and terminated as of the closing date of the sale, and on such closing date the Members shall execute and file a Certificate of Cancellation of the Company’s Certificate of Formation. The Members shall reasonably cooperate in taking all steps necessary in connection with the dissolution and termination of the Company, including but not limited to setting aside reasonable sums to pay for all taxes, costs and/or expenses in connection therewith. (g) At the election of the purchasing Member, the purchase and sale of an Entire Interest will be structured to avoid, if possible, a termination of the Company for Federal tax purposes and/or under the Act. (h) Any transfer or purported transfer of any Interest, whether to another Member or to a third party, shall be of no effect and void ab initio, and such transferee shall not become a Member or an owner of the purportedly transferred Interest, if the Members determine in their sole but reasonable discretion that: (i) the transfer would require registration of any Interest under, or result in a violation of, any federal or state securities laws; (ii) the transfer would result in a termination of the Company under Code Section 708(b) (except for transfers specifically approved by the Members, or Affiliate Transfers pursuant to Section 11.1); (iii) as a result of such transfer the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended, or any rules or regulations promulgated thereunder; (iv) if as a result of such transfer the aggregate value of Interests held by “benefit plan BR Members” including at least one benefit plan BR Member that is subject to ERISA, could be “significant” (as such terms are defined in U.S. Department of Labor Regulation 29 C.F.R. 2510.3-101(f)(2)) with the result that the assets of the Company could be deemed to be “plan assets” for purposes of ERISA; (v) as a result of such transfer, the Company would or may have in the aggregate more than one hundred (100) members and material adverse federal income tax consequences would result to a Member. For purposes of determining the number of members under this Section 11.7(h)(v), a Person (the “Beneficial Owner”) indirectly owning an interest in the Company through a partnership, grantor trust or S corporation (as such terms are used in the Code) (the “Flow-Through Entity”) shall be considered a member, but only if (1) substantially all of the value of the Beneficial Owner’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Company and (2) in the sole discretion of the Managers, a principal purpose of the use of the Flow-Through Entity is to permit the Company to satisfy the 100-member limitation.

Provisions Generally Applicable to Sales. The following provisions shall be applicable to sales under Sections 11.6 10.6 and/or 14.213.2, as indicated: (a) A. For purposes of any sale of an Entire Interest of a Member, the Members shall adjust the purchase price shall be adjusted to reflect assets, liabilities and income of the Company not reflected in the Company’s financial statements available to all Members at the time of the notice of election. Furthermore, the The purchase price, as so adjusted, shall be subject to such post-closing adjustments as the circumstances may require. The amount payable to the selling Member for its Entire Interest be paid shall be calculated based on the purchase price, as so adjusted, and distributable on account of such Entire Interest pursuant to the calculation set forth in Section 10.3(b9.3(b), payable by wire transfer of immediately available funds to the seller’s account. All prorations of real estate taxes, rents, etc., shall be made as of the date of sale. All transfer taxes and recording fees shall be paid for by the party usually charged with such payment under local custom. (b) The purchase price for an B. In connection with the sale of any Member’s Entire Interest to another Member, if there shall be further adjusted to account for any one or more outstanding Delinquency Loan(s) made by the selling Member to the Company. Such Delinquency , such Loan(s), including interest thereon accrued and unpaid, shall be purchased at par by the purchasing Member for the principal amount thereof and accrued and unpaid interest thereon as a condition precedent to such sale. The purchase price for such Delinquency Loan(s) shall be paid by wire transfer of immediately available funds to the selling Member’s account. At the closing, the selling Member shall deliver to the purchasing Member any each note and bond evidencing such Delinquency Loan(s) and all documents securing the same and an assignment or satisfaction thereofsatisfaction, at purchasing Member’s option and in a form reasonably acceptable to the purchasing Member. (c) C. On payment of the purchase price for an Entire Interest, the purchasing Member shall, at its option, either (1) obtain a release of the selling Member from all liability, direct or contingent, by all holders of all Company debts, obligations or claims against the Company for which any Member is or may be personally liable except for any debts, obligations or claims which are fully insured by public liability insurer(s) acceptable to the selling Member, or (2) cause all such debts, obligations or claims to be paid in full at the closing, or (3) deliver to the selling Member an agreement in a commercially reasonable form and substance satisfactory to the selling Member from the Company to defend, indemnify and save the selling Member harmless from any actions, claims or loss arising from any debt, obligation or claim of the Company arising prior to date of sale. (d) D. All Members (including the selling Member) shall be entitled to any distributions of Operating Cash Flow from the Company following the giving of the notice of election and until the closing. (e) E. At the closing of the sale of the Entire Interest of a Member, the selling Member shall execute an assignment of its interest in the Company, free and clear of all liens, encumbrances and adverse claims, which assignment shall be in form and substance reasonably satisfactory to the purchasing Member, and such other instruments as the purchasing Member shall reasonably require to assign the Entire Interest of the selling Member to such person or entity as the purchasing Member may designate. For any sale or transfer under, and subject to the provisions of under this Article 11 of this Agreement10, the purchasing Member may designate an assignee to take ownership of the Entire Interest, which assignee need not be an Affiliate of the Purchasing Member, subject to the other Members’ reasonable consent. (f) F. In the event of a purchase and sale pursuant to Section 14.213.2, the Company shall be dissolved and terminated as of the closing date of the sale, and on such the closing date the Members shall execute and file a Certificate of Cancellation of the Company’s Certificate of Formation. The Members shall reasonably cooperate in taking all steps necessary in connection with the dissolution and termination of the Company, including but not limited to setting aside reasonable sums to pay for all taxes, costs and/or expenses in connection therewith. (g) G. At the election of the purchasing Member, the purchase and sale of an Entire Interest will be structured to avoid, if possible, a termination of the Company for Federal tax purposes and/or under the Act. (h) H. Any transfer or purported transfer of any Interest, whether to another Member or to a third party, shall be of no effect and void ab initio, and such transferee shall not become a Member or an owner of the purportedly transferred Interest, if the Members determine in their sole but reasonable discretion that: (i) the transfer would require registration of any Interest under, or result in a violation of, any federal or state securities laws; (ii) the transfer would result in a termination of the Company under Code Section 708(b) (except for transfers specifically approved by the Members, Members or Affiliate Transfers pursuant to Section 11.110.1); (iii) as a result of such transfer the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended, or any rules or regulations promulgated thereunder; (iv) if as a result of such transfer the aggregate value of Interests held by “benefit plan BR Membersinvestors” including at least one benefit plan BR Member investor that is subject to ERISA, could be “significant” (as such terms are defined in U.S. Department of Labor Regulation 29 C.F.R. 2510.3-101(f)(2)) with the result that the assets of the Company could be deemed to be “plan assets” for purposes of ERISA; (v) as a result of such transfer, the Company would or may have in the aggregate more than one hundred (100) members and material adverse federal income tax consequences would result to a Member. For purposes of determining the number of members under this Section 11.7(h)(v10.7(b)(v), a Person (the “Beneficial Owner”) indirectly owning an interest in the Company through a partnership, grantor trust or S corporation (as such terms are used in the Code) (the “Flow-Through Entity”) shall be considered a member, but only if (1i) substantially all of the value of the Beneficial Owner’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Company and (2ii) in the sole discretion of the Managers, a principal purpose of the use of the Flow-Through Entity is to permit the Company to satisfy the 100-member limitation.