AND
ADVISERS SELECTED BY THE MANAGING MEMBER, AND ANY ACT TAKEN OR OMITTED TO BE
TAKEN IN RELIANCE UPON THE OPINION OF SUCH PERSONS AS TO MATTERS WITHIN SUCH
PERSON'S PROFESSIONAL OR EXPERT COMPETENCE SHALL BE PRESUMED TO HAVE BEEN DONE
OR OMITTED IN GOOD FAITH AND NOT TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(B)
EXCEPT AS OTHERWISE EXPRESSLY AND
SPECIFICALLY PROVIDED IN THIS AGREEMENT, NO PERSON WHO IS AT ANY TIME A
NON-MANAGING MEMBER SHALL HAVE ANY AUTHORITY TO BIND, TO ACT FOR, TO EXECUTE ANY
DOCUMENT OR INSTRUMENT ON BEHALF OF OR TO ASSUME ANY OBLIGATION OR
RESPONSIBILITY ON BEHALF OF THE COMPANY OR ANY OTHER MEMBER.
(C)
FOR PURPOSES OF MAKING ANY OF MLPC
PREFERRED RETURNS AND [*] MINIMUM RETURN, INCLUDED IN THE AUTHORITY GRANTED TO
THE MANAGING MEMBERS UNDER SECTION 3.1(A), THE MANAGING MEMBERS SHALL HAVE THE
AUTHORITY TO, AND SHALL, DETERMINE IN THEIR REASONABLE DISCRETION WHETHER THERE
IS ANY MLPC RESIDENTIAL DEVELOPMENT CASH FLOW ATTRIBUTABLE TO DWELLING AND/OR
RESIDENTIAL DEVELOPMENT BY THE COMPANY OR A SUBSIDIARY OF EACH OF (I) THE [*]
SITE, (II) THE [*] TRACT, AND (III) THE [*] TRACT AND, IF SO, THE AMOUNT
THEREOF.
MLPC SHALL HAVE THE RIGHT TO AUDIT THE MANAGING MEMBERS DETERMINATION
OF MLPC RESIDENTIAL DEVELOPMENT CASH FLOW AVAILABLE FOR PAYMENT OF THE MLPC
PREFERRED RETURN OR [*]
25
MINIMUM RETURN (AS APPLICABLE).
FOR THE AVOIDANCE OF DOUBT, SUCH MLPC PREFERRED
RETURNS AND [*] MINIMUM RETURN, IF MADE, SHALL NOT BE DEEMED TO BE DISTRIBUTIONS
TO MLPC PURSUANT TO ARTICLE 8 HEREOF.
3.2
ROLE OF GHGP AND LIMITATIONS ON ITS
AUTHORITY.
(A)
GHGP SHALL HAVE THE RIGHT AND THE DUTY TO
MANAGE THE DAY-TO-DAY BUSINESS OF THE COMPANY, TO PERFORM DUTIES CUSTOMARY FOR
AN ASSET MANAGER OF PROPERTY COMPARABLE TO THE PROPERTY, AND TO IMPLEMENT THE
DECISIONS MADE ON BEHALF OF THE COMPANY BY ANY OF THE MANAGING MEMBERS IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND APPLICABLE LAWS AND REGULATIONS,
AND SHALL HAVE SUCH OTHER RIGHTS AND POWERS AS ARE GRANTED TO GHGP HEREUNDER AND
AS WHITEHALL STREET OR WHITEHALL EMPLOYEE FUND MAY FROM TIME TO TIME EXPRESSLY
DELEGATE TO GHGP.
GHGP AGREES THAT IT (OR ITS AFFILIATES) SHALL DEVOTE THE
NECESSARY TIME AND EFFORT TO THE COMPANY AND ITS BUSINESS FOR THE PURPOSE OF
CONDUCTING THE BUSINESS OF THE COMPANY AND CARRYING OUT GHGP'S RESPONSIBILITIES
AS SET FORTH HEREIN IN A PRUDENT MANNER AND THAT ANY BREACH OF THE OBLIGATION
SET FORTH IN THIS SENTENCE SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING BUT SUBJECT TO THE OTHER
PROVISIONS IN ARTICLE 3, GHGP SHALL HAVE THE RIGHT AND THE DUTY, TO DO,
ACCOMPLISH AND COMPLETE USING (AND SUBJECT TO THE AVAILABILITY OF) THE COMPANY'S
FUNDS, FOR AND ON BEHALF OF THE COMPANY WITH REASONABLE DILIGENCE AND IN A
PROMPT AND BUSINESSLIKE MANNER, EXERCISING SUCH CARE AND SKILL AS A PRUDENT
OWNER WITH SOPHISTICATION AND EXPERIENCE IN OWNING, OPERATING AND MANAGING
PROPERTIES LIKE THE PROPERTY WOULD