"FAIR MARKET VALUE"), AND SHALL BE
DETERMINED AS FOLLOWS:
(A)
WITHIN TEN (10) BUSINESS DAYS AFTER THE DATE OF A BUYER ELECTION NOTICE,
THE SELLER SHALL NOTIFY THE BUYER IN WRITING OF THE SELLER'S DETERMINATION OF
THE THEN CURRENT FAIR MARKET VALUE OF THE SELLER INTEREST.
(B)
WITHIN FIVE (5) BUSINESS DAYS AFTER THE DATE OF SUCH NOTICE, THE BUYER
SHALL NOTIFY THE SELLER IN WRITING AS TO WHETHER THE BUYER ACCEPTS OR REJECTS
THE SELLER'S DETERMINATION OF FAIR MARKET VALUE.
(C)
IF THE BUYER AND THE SELLER ARE UNABLE TO AGREE UPON THE FAIR MARKET VALUE
WITH RESPECT TO SUCH SELLER INTEREST, THE FAIR MARKET VALUE OF SUCH SELLER
INTEREST SHALL BE DETERMINED BY A NATIONALLY RECOGNIZED APPRAISER SELECTED BY
THE BUYER AND REASONABLY ACCEPTABLE TO THE SELLER (THE "APPRAISER").
2
(D)
THE FAIR MARKET VALUE ESTABLISHED BY THE APPRAISER WITH RESPECT TO SUCH
SELLER INTEREST SHALL BE BINDING UPON BOTH THE BUYER AND THE SELLER.
C.
CLOSING OF PURCHASE OPTION.
THE CLOSING OF THE PURCHASE OPTION
(THE "PURCHASE OPTION CLOSING") WITH RESPECT TO THE SELLER INTEREST SHALL TAKE
PLACE AT 10:00 A.M. NEW YORK TIME AT THE OFFICES OF GIBSON, DUNN & CRUTCHER LLP,
200 PARK AVENUE, NEW YORK, NEW YORK 10166 ON THE PURCHASE DATE OR SUCH OTHER
DATE AS THE BUYER AND THE APPLICABLE SELLERS SHALL MUTUALLY AGREE.
ON THE
PURCHASE DATE, THE BUYER SHALL DELIVER TO THE SELLER, THE PURCHASE PRICE WITH
RESPECT TO THE SELLER INTEREST, IN CASH, AND THE SELLER SHALL DELIVER TO THE
BUYER THE CERTIFICATE (IF ANY) REPRESENTING THE SELLER INTEREST, FREE OF ANY
LIENS OR ENCUMBRANCES (OTHER THAN (I) PORTFOLIO ASSET PERMITTED ENCUMBRANCES,
DETERMINED AS THOUGH THE SELLER INTEREST WERE A PORTFOLIO ASSET,
(II) RESTRICTIONS IMPOSED BY THE LLC AGREEMENT, AND (III) RESTRICTIONS IMPOSED
BY APPLICABLE SECURITIES LAW), TOGETHER WITH SUCH POWERS, TRANSFER TAX STAMPS,
ASSIGNMENT AGREEMENTS AND OTHER DOCUMENTATION AND CERTIFICATES REASONABLY
REQUIRED BY THE BUYER TO EFFECT THE TRANSFER OF ALL OF THE SELLER'S RIGHT, TITLE
AND INTEREST IN, TO AND UNDER THE SELLER INTEREST.
IN ADDITION, (I) THE SELLER
SHALL DELIVER TO THE BUYER THE CERTIFICATE OF A DULY AUTHORIZED OFFICER OF THE
SELLER, CERTIFYING THAT THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION
2.2(A) ARE TRUE AND CORRECT AS OF THE PURCHASE DATE, AND (II) THE BUYER AND THE
SELLER SHALL EXECUTE AND DELIVER SUCH DOCUMENTS AND INSTRUMENTS TO EACH OTHER,
AND TO SUCH OTHER PERSONS, AS ARE REQUIRED UNDER THE LLC AGREEMENT AND OTHERWISE
REASONABLY REQUIRED UNDER APPLICABLE LAW IN ORDER TO CONSUMMATE THE ASSIGNMENT,
SALE, PURCHASE, AND DELIVERY OF THE SELLER INTEREST TO THE BUYER ON THE PURCHASE
DATE.
D.
RELATIONSHIP TO UNWIND RIGHTS.
IF BUYER ELECTS TO CAUSE AN UNWIND
OF EQUITABLE ASSIGNMENT AS TO AN EQUITABLE ASSIGNMENT OF THE RELATED ASSET
PURSUANT TO SECTION 5.2(D)(IV) OF THE PURCHASE AGREEMENT AND THE PURCHASE OPTION
WITH RESPECT TO THE SELLER INTEREST SHALL NOT HAVE BEEN EXERCISED AT THE TIME
BUYER SO ELECTS TO CAUSE SUCH UNWIND OF EQUITABLE ASSIGNMENT, THEN THE PURCHASE
OPTION