Common use of Provisions Generally Applicable to Sales Clause in Contracts

Provisions Generally Applicable to Sales. For purposes of this SECTION 10.8, the Ceppeto Members shall be treated as a single Member and the Boston Properties Members shall be treated as a single Member. The following provisions shall be applicable to sales under SECTIONS 10.1A, 10.3, 10.7 and 12.2: (a) At the closing of the sale of all or a portion of the Equity Interest of a Member to the other 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 all or such portion of the Equity Interest of the selling Member to such Person as the purchasing Member may designate. For any sale or transfer of all or a portion of a Member's Equity Interest under this ARTICLE 10, the purchasing Member may designate the assignee of such Equity Interest, which assignee (i) in connection with the sale of transfer of a Member's Entire Interest, need not be an Affiliate of the purchasing Member and (ii) in connection with the sale of transfer of less than all of a Member's Entire Interest, shall be an Affiliate of the purchasing Member. (b) It is the intent of the parties to this Agreement that the requirements or obligations, if any, of one Member to sell all or a portion of its Equity Interest to the other Member shall be enforceable by an action for specific performance of a contract relating to the purchase of real property or an interest therein. In the event that the selling Member shall have created or suffered any unauthorized liens, encumbrances or other adverse interests against either the Property or the selling Member's interest in the Company, the purchasing Member shall be entitled either to an action for specific performance to compel the selling Member to have such defects removed, in which case the closing shall be adjourned for such purpose, or, at the purchasing Member's option, to an appropriate offset against the purchase price, which offset shall include all reasonable costs associated with enforcement of this Section. (c) At the election of the purchasing Member, the purchase and sale of all or a portion of an Equity Interest will be structured to avoid, if possible, a termination of the Company for Federal tax purposes and/or under the Act, providing that such structure does not adversely impact the selling Member or the contemplated transfer. (d) At the request of the Ceppeto Members, any purchase and sale or other transfer of all or any portion of the Ceppeto Members' Entire Interest to the Managing Member in exchange for OP Units (or a combination of cash and OP Units) will, to the extent reasonably practicable, be structured in consideration of the tax consequences of such transfer to the Ceppeto Members, providing that such structure (i) does not adversely impact the Managing Member or its Affiliates, the Property or the contemplated transfer (all as determined by the Managing Member) and (ii) does not cause the Managing Member or its Affiliates, the Property or the contemplated transfer to incur any additional cost or other liability which is not paid in full by the Ceppeto Members on the date of such sale or other transfer. (e) In connection with the sale or other transfer of the Entire BP Interest to the Ceppeto Members or their designee, the BP Member shall, at the Ceppeto Member's sole cost and expense, deliver originals or certified copies of all books and records and other material relating to the Property, and otherwise cooperate with the reasonable requests of the Ceppeto Members in connection with the transition of management of the Property to the Ceppeto Members or their designee.

Provisions Generally Applicable to Sales. For purposes of this SECTION 10.8, the Ceppeto Members shall be treated as a single Member and the Boston Properties Members shall be treated as a single Member. The following provisions shall be applicable to sales under SECTIONS 10.1ASections 10.7 and/or 13.2, 10.3, 10.7 and 12.2as indicated: (a) This subparagraph (a) shall be applicable only to a sale of a Member’s Entire Interest under Section 10.7. If, under the provisions of Section 10.7, (i) the Proposer has offered to sell its Entire Interest to the Responding Member and the Responding Member has elected instead to sell its Entire Interest to the Proposer then the purchase price payable to the Responding Member for its Entire Interest shall be determined as set forth in this Section 10.8(a), or (ii) the Proposer has offered to purchase the Entire Interest of the Responding Member and the Responding Member has elected instead to purchase the Entire Interest of the Proposer, then the purchase price payable to the Proposer for its Entire Interest, shall be determined as set forth in this Section 10.8(a). Each such purchase price is the “Reply Price” and shall be determined as follows: (i) In the event this Section 10.8(a) is triggered in the context of Section 10.7, there shall be determined the “Value” of the Company, after payment of debts, liabilities and expenses, which Value shall equal the total amount of Company assets that would have been required for the Company to distribute the amount of the 10.7 Offer to the holder of the interest to be purchased thereunder under Section 9.4, after payment of debts, liabilities and expenses under Sections 13.5(a) and 13.5(b), if all of the Company’s property, including the Property, were sold for the price set forth in the Sale Proposal. (ii) After determining the Value, there shall then be determined the amount which would have been distributable and payable to the selling Member under Section 9.4 if all of the Company’s Property had been sold for an amount equal to the Value, plus all debts, liabilities and expenses of the Company referenced above. Such amount which would have been distributable to the selling Member equals the Reply Price. (b) For purposes of any sale of an Entire Interest of a Member, the purchase price associated with such sale shall be adjusted to reflect assets and liabilities of the Company not reflected in the Company’s financial statements available to all Members at the time of the notice of election (the “Notice Date”). The purchase price, as so adjusted, shall be determined ten (10) Business Days prior to closing and shall be subject to such post-closing adjustments as the circumstances may require. The purchase price, as so adjusted, shall be paid, at the selling Member’s option, in cash, by certified check drawn to the order of the selling Member, or by wire transfer of immediately available funds to the seller’s account. All prorations of real estate taxes, rents and other items to be prorated shall be made as of the date of sale. All transfer taxes, title insurance policies, surveys and recording fees shall be paid for by the party usually charged with such payment under local custom. (c) On payment of the purchase price for an Entire Interest, the purchasing Member shall, at its option, either (i) deliver a release of the selling Members 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 Members, or (ii) cause all such debts, obligations or claims to be paid in full at the closing, or (iii) deliver to the selling Members an agreement in form and substance satisfactory to the selling Members to defend, indemnify and save the selling Members harmless from any actions, claims or loss arising from any debt, obligation or claim of the Company arising prior to date of sale. The Company shall provide the Members such tax information and reporting as may be required by the Members in connection with such sale within a reasonable period following such sale. (d) After determining the Value as described above in Section 10.8(a) above, no distributions of Operating Cash Flow will be made from the Company prior to the earlier of the closing of the proposed purchase or the termination of the proposed purchase prior to the closing. (e) If the Property is damaged by fire or other casualty, or if any entity possessing the right of eminent domain shall give notice of an intention to take or acquire a substantial part of the Property, and such damage occurs, or such notice is given, between the Notice Date and the closing date of the purchase of an Entire Interest in the Company, the following shall apply: (i) If the Property is damaged by an insured casualty not to exceed five hundred thousand dollars ($500,000) (or an uninsured casualty not resulting in damage in excess of fifty thousand dollars ($50,000)) or if the taking or acquisition shall not result in a substantial (in excess of two percent (2%)) reduction in the income producing capacity of the Property, then the purchasing Member shall be required to complete the transaction and accept an assignment of the insurance or condemnation proceeds. (ii) If the Property is damaged by an uninsured casualty resulting in damage in excess of fifty thousand dollars ($50,000), or if the taking or acquisition shall result in a substantial (in excess of two percent (2%)) reduction in the income producing capacity of the Property, or if there is an insured casualty in excess of $500,000, then the purchasing Member shall have the option (to be exercised within 30 days from the date of the occurrence of the casualty or receipt of the notice of condemnation) to either (x) accept the Property in an “as is” condition together with any insurance proceeds, settlements and awards, or (y) cancel the purchase and have its deposit returned. In the event that the taking or acquisition shall result in a substantial reduction in the income producing capacity of the Property, notwithstanding the election of the purchasing Member pursuant to subparagraph (ii) above, CNL or AHC, in its capacity as selling Member, as applicable, shall also have the right to cancel the purchase within fifteen (15) days from the date of the receipt of the notice of condemnation. In the event that the purchase is canceled by either Member pursuant to the above provisions, the terms of this Agreement shall remain in effect and continue to be binding on the parties. (f) At the closing of the sale of all or a portion of the Equity Entire Interest of a Member to the other Member, the selling Member Members 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 all or such portion of the Equity Entire Interest of the selling Member Members to such Person person or entity as the purchasing Member may designate. For any sale or transfer of all or a portion of a Member's Equity Interest under this ARTICLE Article 10, the purchasing Member may designate the assignee of such Equity the Entire Interest, which assignee (i) in connection with the sale of transfer of a Member's Entire Interest, need not be an Affiliate of the purchasing Member, subject to the other Members’ reasonable consent. (g) This subparagraph (g) shall be applicable only to a sale of a Member’s Entire Interest under Section 13.2. In the event of a purchase and sale pursuant to Section 13.2, the Company shall be dissolved and terminated as of the closing date of the sale, and on the closing date the Members shall execute and file a Certificate of Cancellation of the Company’s Certificate of Formation, unless the remaining Member and (ii) elects to continue the Company. The Members shall cooperate in taking all steps necessary in connection with the sale of transfer of less than all of a Member's Entire Interest, shall be an Affiliate dissolution and termination of the purchasing MemberCompany. (bh) It is the intent of the parties to this Agreement that the requirements or obligations, if any, of one Member to sell all or a portion of its Equity Entire Interest to the other another Member shall be enforceable by an action for specific performance of a contract relating to the purchase of real property or an interest therein. In the event that the selling Member Member(s) shall have created or suffered any unauthorized liens, encumbrances or other adverse interests against either the Property or the selling Member's ’s interest in the Company, the purchasing Member shall be entitled either to an action for specific performance to compel the selling Member Member(s) to have such defects removed, in which case the closing shall be adjourned for such purpose, or, at the purchasing Member's ’s option, to an appropriate offset against the purchase price, which offset shall include all reasonable costs associated with enforcement of this Section. (ci) At the election of the purchasing Member, the Each Member agrees that it will negotiate in good faith a purchase and sale of all or a portion agreement in the event of an Equity election by a Member to purchase the other Member’s Entire Interest will be structured to avoid, if possible, a termination of within ten (10) business days following the Company for Federal tax purposes and/or under the Act, providing that such structure does not adversely impact the selling Member or the contemplated transferNotice Date. (dj) At For purposes of this Section 10.8, all references to a “Member” shall mean AHC or CNL as the request of context permits and all references to “the Ceppeto Members” shall mean AHC, any purchase and sale or other transfer of all or any portion of and/or CNL as the Ceppeto Members' Entire Interest to the Managing Member in exchange for OP Units (or a combination of cash and OP Units) will, to the extent reasonably practicable, be structured in consideration of the tax consequences of such transfer to the Ceppeto Members, providing that such structure (i) does not adversely impact the Managing Member or its Affiliates, the Property or the contemplated transfer (all as determined by the Managing Member) and (ii) does not cause the Managing Member or its Affiliates, the Property or the contemplated transfer to incur any additional cost or other liability which is not paid in full by the Ceppeto Members on the date of such sale or other transfercontext permits. (e) In connection with the sale or other transfer of the Entire BP Interest to the Ceppeto Members or their designee, the BP Member shall, at the Ceppeto Member's sole cost and expense, deliver originals or certified copies of all books and records and other material relating to the Property, and otherwise cooperate with the reasonable requests of the Ceppeto Members in connection with the transition of management of the Property to the Ceppeto Members or their designee.