DUTIES TO THE COMPANY, AND, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE NON-MANAGING MEMBERS HEREBY WAIVE AND RELEASE AND
AGREE NOT TO ASSERT OR RAISE ANY SUCH DEFENSE, CLAIM, COUNTERCLAIM, RIGHT OF SET
OFF, OR OTHER RIGHT TO THE ENFORCEMENT OF SUCH LOAN.
3.6
SALE OF PROPERTY.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, EXCEPT AS PROVIDED IN SECTION 3.2(A)(21), (I) THE
PROPERTY MAY NOT BE SOLD WITHOUT THE CONSENT OF GKH OR THE WHITEHALL GROUP PRIOR
TO MARCH 13, 2009 AND (II) AT ANY TIME FROM AND AFTER MARCH 13, 2009, EITHER OF
THE WHITEHALL GROUP OR GKH SHALL HAVE THE RIGHT, ACTING ALONE AND WITHOUT THE
CONSENT OR APPROVAL OF ANY OTHER MEMBER,
TO COMMENCE THE MARKETING OF, AND
CAUSE THE SALE OF, THE PROPERTY SUBJECT ONLY TO A RIGHT OF FIRST OFFER IN FAVOR
OF THE OTHER MEMBERS PURSUANT TO THE FOLLOWING PROVISIONS:
(A)
THE PARTY DESIRING TO SELL THE PROPERTY
(THE "TRIGGERING PARTY") SHALL GIVE WRITTEN NOTICE (THE "PROPOSED SALE NOTICE")
TO EACH OF THE OTHER MEMBERS (EACH, A "NON-TRIGGERING PARTY" AND, COLLECTIVELY,
THE "NON-TRIGGERING PARTIES") SETTING FORTH THE PROPOSED PURCHASE PRICE (THE
"PROPOSED PURCHASE PRICE") OF THE PROPOSED SALE.
(B)
EACH NON-TRIGGERING PARTY ELECTING TO
PURCHASE THE PROPERTY (AN "ELECTING NON-TRIGGERING PARTY") SHALL HAVE THIRTY
(30) DAYS (THE "ELECTION PERIOD") AFTER RECEIVING THE PROPOSED SALE NOTICE TO
MAKE SUCH ELECTION BY GIVING WRITTEN NOTICE THEREOF (THE "PURCHASE NOTICE") TO
THE TRIGGERING PARTY, WITH A COPY TO EACH OTHER NON-TRIGGERING PARTY, WITHIN THE
ELECTION PERIOD.
34
(C)
IF NONE OF THE NON-TRIGGERING PARTIES
TIMELY DELIVERS A PURCHASE NOTICE TOGETHER WITH A PURCHASE NOTICE DEPOSIT AS
REQUIRED BY SECTION 3.6(F), THEN NONE OF THE NON-TRIGGERING PARTIES SHALL HAVE
ANY FURTHER RIGHT TO PURCHASE THE PROPERTY, EXCEPT AS MAY BE EXPRESSLY PROVIDED
FOR BELOW IN THIS SECTION 3.6(C), AND THE TRIGGERING PARTY SHALL HAVE THE RIGHT
TO CAUSE THE COMPANY TO ENTER INTO AN AGREEMENT TO SELL, AND TO SELL, THE
PROPERTY TO AN INDEPENDENT THIRD PARTY WHICH
IS NOT AN AFFILIATE OF ANY MEMBER
("THIRD-PARTY PURCHASER") AT ANY TIME OR TIMES DURING A ONE HUNDRED EIGHTY (180)
DAY PERIOD (SUCH PERIOD, THE "MARKETING PERIOD"; IT BEING AGREED AND UNDERSTOOD
THAT THE TRIGGERING PARTY SHALL HAVE THE RIGHT TO END THE MARKETING PERIOD AT
ANY TIME PRIOR TO THE END OF SUCH 180-DAY PERIOD UPON NOTICE TO THE
NON-TRIGGERING PARTIES), WHICH PERIOD SHALL COMMENCE ON THE EARLIER OF (A) THE
FIRST DAY AFTER THE ELECTION PERIOD EXPIRES AND (B) SUCH TIME (IF ANY) AS EACH
NON-TRIGGERING PARTY HAS NOTIFIED THE TRIGGERING PARTY THAT THE NON-TRIGGERING
PARTY WILL NOT BE PURCHASING THE PROPERTY (WHETHER INDIVIDUALLY OR JOINTLY WITH
ANY OTHER NON-TRIGGERING PARTY OR PARTIES), FOR AGGREGATE GROSS CONSIDERATION
WHICH IS NOT LESS THAN 95% OF THE PROPOSED PURCHASE PRICE (EXCLUDING (I.E.,
WITHOUT DEDUCTING FROM THE CONSIDERATION OFFERED BY THE THIRD-PARTY PURCHASER)
ANY CUSTOMARY PRORATIONS TO SUCH CONSIDERATION DETERMINED AS OF THE DATE OF THE
CLOSING OF THE SALE OF THE PROPERTY, TRANSFER TAXES, LEGAL FEES AND OTHER
CLOSING