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 10.2, 10.6, 10.7 and/or 13.2, as indicated: (a) If, under the provisions of Section 10.7, either party (the “Offering Party”) makes an offer (the “10.7 Offer”) to the other party (the “Other Party”) to purchase the Other Party’s Entire Interest or to sell its own Entire Interest, the purchase price (1) payable by the Offering Party to the Other Party, if the Other Party exercises its election to sell its Entire Interest to the Offering Party or (2) payable by the Other Party to the Offering Party, if the Other Party exercises its election to purchase the Entire Interest of the Offering Party, as the case may be, shall be determined as follows: (i) In the event this Section 10.8(a) is triggered in the context of a sale of an Entire Interest under Section 10.7, there shall be determined the total amount which would have been available for distribution by the Company under Section 9.3(b) after payment of debts, liabilities, and expenses under Section 13.5 (a), (b), and (c) to all of the Members if the Property were sold for the 10.7 Stated Amount. The amount which would have been distributable to the Offering Party under Section 9.3 if all of the Company’s Property had been sold for an amount equal to the 10.7 Stated Amount after payment of all debts, liabilities, and expenses of the Company referenced above equals the purchase price for the Offering Party’s Entire Interest, and such amount which would have been distributable to the Other Party equals the purchase price for the Entire Interest of the Other Party; and (ii) In the event this Section 10.8(a) is triggered in the context of a sale of 10.7 Sale Property, the purchase price payable to the Company for the 10.7 Stated Property shall be equal to the 10.7 Stated Amount, and such sale shall constitute a Major Capital Event. (b) For purposes of any sale of an Entire Interest of a Member, the purchase price associated with any 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.

Provisions Generally Applicable to Sales. The following provisions shall be applicable to sales of a Member’s Entire Interest under each of Sections 10.210.7, 10.6, 10.7 and/or 13.2, as indicated10.10 and 13.2(b) except to the extent indicated below: (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, either party (i) the “Offering Party”) makes an offer (the “10.7 Offer”) to the other party (the “Other Party”) to purchase the Other Party’s Entire Interest or to sell its own Entire Interest, the purchase price (1) payable by the Offering Party to the Other Party, if the Other Party exercises its election Proposer has offered to sell its Entire Interest to the Offering Party 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 (2ii) payable by the Other Party to the Offering Party, if the Other Party exercises its election Proposer has offered to purchase the Entire Interest of the Offering PartyResponding 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 case may be, “Reply Price” and shall be determined as follows: (i) In the event this Section 10.8(a) is triggered in the context of a sale of an Entire Interest under 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 which would have been available for distribution and payment by the Company to all of the Members under Section 9.3(b) 9.4, after payment of debts, liabilities, liabilities and expenses under Section 13.5 (aSections 13.5(a) and 13.5(b), (b), and (c) to all of the Members if the Property were sold for the 10.7 Stated Amount. The amount which would have been distributable to the Offering Party under Section 9.3 if all of the Company’s property, including the Property, were sold for the Property Price set forth in the Sale Proposal. (ii) After determining the Value, there shall then be determined the amounts which would have been distributable and payable to (a) the Proposer and (b) the Responding Member, in each case, under Section 9.4, if all of the Company’s property, including the Property, had been sold for an amount equal to the 10.7 Stated Amount after payment of Property Price and the Company paid all debts, liabilities, liabilities and expenses of the Company referenced above equals the purchase price for the Offering Party’s Entire Interest, and such above. The amount determined under this clause 10.8(a)(ii) which would have been distributable to the Other Party equals the purchase price for the Entire Interest of the Other Party; and (ii) In the event this Proposer under Section 10.8(a) is triggered in the context of a sale of 10.7 Sale Property, 9.4 shall be the purchase price payable to the Company for Proposer if the 10.7 Stated Property Proposer will sell its Entire Interest to the Responding Member pursuant to the Sale Proposal, and the amount determined under this clause 10.8(a)(ii) which would have been distributable to the Responding Member under Section 9.4 shall be equal the purchase price payable to the 10.7 Stated Amount, and such sale shall constitute a Major Capital EventResponding Member if the Responding Member will sell its Entire Interest to the Proposer pursuant to the Sale Proposal. (b) For purposes of any sale of an Entire Interest of a Member, the purchase price associated with any such sale shall be adjusted to reflect assets and liabilities of the Company not reflected in the Company’s financial statements available to all the 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, rents and other items to be prorated shall be made as of the date of sale. All transfer taxes, title insurance policies, surveys, 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 Member and its Affiliates from all liability, direct or contingent, by each holder of such liability, from all Company debts, obligations or claims against the Company for which the selling Member or its Affiliate is or may be personally liable, including, without limitation, any guaranties of Company debts or obligations given by a selling Member or its Affiliates, except for any such debts, obligations or claims which are fully insured by public liability insurer(s) acceptable to the selling Members, or (ii) cause all such Company debts, obligations or claims to be paid in full at the closing, or (iii) deliver to the selling Member and its Affiliates an agreement in form and substance satisfactory to the selling Member to defend, indemnify and save the selling Member and its Affiliates harmless from any actions, claims or loss arising from any debt, obligation or claim of the Company arising prior to or after the date of sale, including, without limitation, any guaranties of Company debts or obligations given by a selling Member or its Affiliates. 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) All Members (including the selling Members) shall be entitled to any distributions of Operating Cash Flow from the Company made 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 a 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 a two percent (2%)) reduction in the income producing capacity of the Property, or if there is an insured casualty in excess of five hundred thousand dollars ($500,000), then the purchasing Member shall have the option (to be exercised within forty-five (45) 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. (iii) 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 Bainbridge, 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 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 Members to such Person as the purchasing Member may designate. For any sale or transfer under Section 10.7 where the Responding Member has made its election pursuant to Section 10.7(b) and either a Proposer’s Buy Sell Deposit or a Responding Member’s Buy Sell Deposit, as applicable, has been made pursuant to Section 10.7(b), then the purchasing Member may designate the assignee of the Entire Interest, which assignee need not be an Affiliate of the purchasing Member. (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 elects to continue the Company. The Members shall cooperate in taking all steps necessary in connection with the dissolution and termination of the Company. (h) It is the intent of the parties to this Agreement that the requirements or obligations, if any, of one Member to sell its Entire Interest to 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(s) 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(s) 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. (i) Each Member agrees that it will negotiate in good faith a purchase and sale agreement consistent with the requirements set forth herein in the event of an election by a Member to purchase the other Member’s Entire Interest within ten (10) Business Days following the Notice Date; provided, however, failure to execute and deliver a purchase and sale agreement shall not limit or otherwise affect the obligations of the Members to consummate such purchase and sale in accordance with the requirements set forth herein. (j) For purposes of this Section 10.8, all references to a “Member” shall mean Bainbridge or CNL as the context permits and all references to “the Members” shall mean Bainbridge, and CNL as the context permits.