prevailing commercial practices for the
development, operation, marketing and sale of property similar to the assets of
the Company and the Company Subsidiaries (and such failure has or is reasonably
expected to have a material and adverse effect upon the Company, any Company
Subsidiary or their respective assets), and the failure to correct such
deficiencies within the Cure Period.
(4) 197B197B197B197B197B197BThe occurrence of a Bankruptcy/Dissolution Event
with respect to ESC.
B. 134B134B134B134B134B134BUUUUProcedure; Arbitration
.UUUU
The Termination Notice shall specify the basis for the same and shall
become effective (1) ten (10) days after the date of the Termination Notice in
connection with a termination described in subsection A(1), A(2) or A(3) above,
and (2) immediately in connection with a termination described in subsection
A(4) above.
However, ESC, may dispute the existence of grounds for the
termination described in subsection A(1), A(2) or A(3) (but not subsection A(4))
by written notice ("Arbitration Notice") to BREA within ten (10) days after its
receipt of the Termination Notice.
If ESC fails to provide an Arbitration
Notice within such ten (10) day period, then notwithstanding anything to the
contrary herein, ESC shall have no right to dispute the effectiveness of the
Termination Notice, which shall be conclusive.
In the event an Arbitration
Notice is given within the period set forth above, then (a) the dispute shall be
resolved by arbitration as provided in Section 7.3, and (b) if the arbitrator
upholds the grounds for termination, then the Termination Notice shall thereupon
become effective.
C. 135B135B135B135B135B135BUUUUEffect of Termination Notice
.UUUU
If a Termination Notice becomes effective, then:
(1) 198B198B198B198B198B198BBREA or its designee shall become the Administrative
Member with all the power and authority previously possessed by ESC as
Administrative Member; and ESC shall remain a Member in the Company, but with no
power, authority or right to vote, approve or act for or bind the Company with
respect to any matter in connection with the Company or its operation (and,
without limitation, ESC shall have no further rights under Section 5.1).
(2) 199B199B199B199B199B199BESC shall execute and acknowledge any required
amendments to this Agreement reflecting the foregoing, in such form and content
as BREA may reasonably prescribe.
(3) 200B200B200B200B200B200BSubject to the transfer of any Operating Licenses,
ESC shall not be responsible for any obligation of the Administrative Member
under this Agreement first accruing after the Termination Notice becomes
effective (other than obligations that would apply to ESC
28
under this Agreement regardless of its status as Administrative Member,
including contribution obligations).
(4) 201B201B201B201B201B201BThe distributions under the "Promote Clauses" (i.e.,
clause (2) of Section 4.1B, clause (2) of Section 4.1C and clause (2) of
Section 4.1D) shall thereafter be distributed to the Members in accordance with
their respective Company Percentages; and no further fees or reimbursements
shall be payable to ESC as Administrative Member.
(5) 202B202B202B202B202B202BESC shall forthwith:
(a) deliver to BREA a final
accounting; (b) surrender and deliver to BREA all rents and income, including
tenant security deposits, of the Properties and other monies of