WOULD HAVE
BEEN PAYABLE TO SUCH DEFAULTING MEMBER AS ITS PORTION OF THE ACTUAL PROMOTE)
UNDER ARTICLE 10 HEREOF IF THE COMPANY HAD SOLD ALL OF THE COMPANY ASSETS ON THE
DATE OF SUCH PURCHASE BY THE WHITEHALL GROUP (OR ITS DESIGNEE(S)) FOR A SALES
PRICE EQUAL TO NINETY-FIVE PERCENT (95%) OF THE APPRAISED VALUE OF THE COMPANY
ASSETS (LESS A REASONABLE ESTIMATE OF THE COSTS AND EXPENSES, INCLUDING
REASONABLE AND CUSTOMARY BROKERAGE COMMISSIONS, THAT WOULD HAVE BEEN INCURRED BY
THE COMPANY, AS SELLER, IN MAKING SUCH SALE).
THE COSTS OF OBTAINING ANY SUCH
APPRAISED VALUE SHALL BE BORNE BY THE GENGATE MEMBERS AND SHALL BE DEDUCTIBLE
AGAINST THE DEFAULT PURCHASE PRICE.
THE CALCULATION OF THE LIQUIDATING
DISTRIBUTION HEREUNDER FOR THE DEFAULT PURCHASE PRICE SHALL BE MADE BY THE
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS WHO THEN ACT AS THE COMPANY'S AUDITORS.
(III)
UPON RECEIPT OF THE FINAL DETERMINATION OF
THE DEFAULT PURCHASE PRICE, THE WHITEHALL GROUP SHALL HAVE THE RIGHT, BY NOTICE
GIVEN WITHIN THIRTY (30) DAYS OF BEING NOTIFIED OF SUCH DETERMINATION, TO REVOKE
THE DEFAULT PURCHASE NOTICE AND, IN SUCH CASE, (I) THE WHITEHALL GROUP SHALL
HAVE NO OBLIGATION TO PURCHASE THE DEFAULTING MEMBER'S INTEREST AND (II) THE
WHITEHALL GROUP SHALL REIMBURSE THE GENGATE MEMBERS FOR THEIR OUT-OF-POCKET
COSTS ASSOCIATED WITH OBTAINING THE APPRAISED VALUE.
(IV)
IN THE EVENT THAT THE WHITEHALL GROUP ELECTS
UNDER THIS SECTION 4.9(A) TO PURCHASE ANY GENGATE MEMBER'S INTEREST IN THE
COMPANY AND, AFTER RECEIPT OF THE APPRAISED VALUE, STILL WISHES, IN ITS
DISCRETION, TO CONSUMMATE SUCH PURCHASE, THE DEFAULT PURCHASE PRICE SHALL BE
PAID TO SUCH GENGATE MEMBER ON THE CLOSING OF THE PURCHASE OF SUCH INTEREST.
SIMULTANEOUSLY WITH THE RECEIPT OF THE DEFAULT PURCHASE PRICE, SUCH GENGATE
MEMBER SHALL EXECUTE AND DELIVER, AND, IN SUCH EVENT AND FOR SUCH PURPOSE, SUCH
GENGATE MEMBER HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS EACH MEMBER OF THE
WHITEHALL GROUP (AND ANY OF ITS SUCCESSORS OR ASSIGNS) AS A TRUE AND LAWFUL
ATTORNEY-IN-FACT TO EXECUTE AND DELIVER FOR AND ON SUCH GENGATE MEMBER'S BEHALF,
ALL DOCUMENTS THAT MAY BE NECESSARY, IN THE OPINION OF COUNSEL FOR THE WHITEHALL
GROUP, TO EFFECT A TRANSFER OF SUCH GENGATE MEMBER'S ENTIRE INTEREST TO THE
WHITEHALL GROUP (OR THEIR DESIGNEE(S)).
THE WHITEHALL GROUP SHALL TAKE SUCH
INTEREST OF SUCH GENGATE MEMBER SUBJECT TO, AND SHALL ASSUME AND AGREE TO PAY,
SUCH GENGATE MEMBER'S SHARE OF ALL
42
LIABILITIES OF THE COMPANY AS OF THE DATE OF SUCH SALE.
CLOSING COSTS AND ALL
OTHER CHARGES (EXCEPT FOR PAYMENT OF TRANSFER AND GAINS TAXES, WHICH SHALL BE
PAYABLE BY SUCH GENGATE MEMBER) INVOLVED IN CLOSING THE SALE SHALL BE DIVIDED
PRO RATA (IN ACCORDANCE WITH THEIR RELATIVE PERCENTAGE INTERESTS) BETWEEN SUCH
GENGATE MEMBER ON THE ONE HAND, AND THE WHITEHALL GROUP ON THE OTHER (EXCEPT
EACH PARTY SHALL PAY ITS OWN ATTORNEYS' FEES). SUCH GENGATE MEMBER SHALL
TRANSFER ITS INTEREST FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND ADVERSE
CLAIMS (OTHER THAN BY, THROUGH OR UNDER THE COMPANY).
IN THE EVENT THAT SUCH