Common use of Buy-Sell Agreement Clause in Contracts

Buy-Sell Agreement. (a) Upon the failure of Members to agree on any Major Decision or any other issue that could have a material impact on the Company, in the event of termination of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three (3) years after the execution of this Agreement, any Member that is not a Delinquent Member (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members (the “Offeree”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall equal the fair market value of the Assets. An offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests in the Company (including any interests held by, or Transferred to, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day period, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within thirty (30) days after the expiration of the 10-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-day period (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day appraiser selection period (the “Additional Appraisal Period”). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty (30) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests in the Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within the Buy-Sell Election Period, the Offeree shall be deemed to have elected to sell its interests in the Company. Within ten (10) days of the expiration of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Member. (d) Closing shall occur at the offices of the Company no later than thirty (30) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds of such sale shall be retained by the Company and not distributed to the Members. At the closing, the applicable interests in the Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests in the Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Upon Each Shareholder shall have the failure of Members right, after October 22, 2012 to agree on any Major Decision or any other issue that could have provide a material impact on the Company, written notice in the event of termination of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three accordance with paragraph 22 (3) years after the execution of this Agreement, any Member that is not a Delinquent Member (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members Investor Shareholder (the “OffereeOfferee Shareholder”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall equal the fair market value of the Assets. An to offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests interest of the Selling Shareholder and its Affiliates in the Company (including any interests held by, or Transferred to, its Affiliates), so long as to the Offeree is not Shareholder at a Delinquent Member, or (ii) to per share purchase all, but not less than all, of price and upon the Offeree’s interests other terms and conditions specified in the Company Offer. Notwithstanding the immediately preceding sentence, no Shareholder may provide an Offer at any time during the period which commences on the date that a Transfer Notice has been provided pursuant to paragraph 3(b) and ends sixty-one (including any interests held by or Transferred to its Affiliates61) days after the Authorization Date described in paragraph 3(b). (b) If the The Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a Shareholder must elect by written notice (the “Notice of Election”) to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day period, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer Selling Shareholder within thirty (30) days after the expiration receipt of the 10-day appraiser selection period. If Offer, either: (i) to sell the two appraisers can not agree Offeree Shareholder’s entire interest in the Company to the Selling Shareholder at the per share purchase price and on the Buy-Sell Value within other terms and conditions specified in the 30-Offer, or (ii) to purchase the entire interest of the Selling Shareholder and its Affiliates in the Company at a purchase price equal to the price set forth in the Offer and on the other terms and conditions specified in the Offer. During such sixty (60) day period period, subject to the terms of the Mutual Nondisclosure Agreement between Carlyle Investment Management L.L.C. and Apollo dated August 2, 2007 (the “Initial Appraisal PeriodConfidentiality Agreement”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end ), each of the Initial Appraisal Period Offeree Shareholder and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end Selling Shareholder may perform a confirmatory due diligence evaluation of the five (5) -day appraiser selection period (Company and its Subsidiaries, and the “Additional Appraisal Period”)Company shall, and shall cause its Subsidiaries to, afford to the Offeree Shareholder’s and the Selling Shareholder’s respective officers, directors, employees, accountants, counsel, consultants, advisors and agents reasonable access to and the right to inspect, during normal business hours and with reasonable advance notice, all of the real property, properties, assets, records, contracts and other documents related to the Company and its Subsidiaries, and shall permit them to consult, during normal business hours and with reasonable advance notice, with the officers, employees, accountants, counsel and agents of the Company and its Subsidiaries for the purpose of making such investigation of the Company and its Subsidiaries as the Offeree Shareholder and the Selling Shareholder shall desire to make. The determination parties agree that Carlyle shall act in all respects under this paragraph 9(b) on behalf of the Buy-Sell Value by the third appraiser shall be finalall of its Affiliates including without limitation providing Notices of Election. (c) The If the Offeree shall have thirty Shareholder elects clause (30i) of paragraph 9(b), the Investor Shareholders shall, within ninety (90) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration Notice of Election, execute such documents and instruments reasonably required by the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) Selling Shareholder to sell its interests in the Company at a price equal to the amount and transfer the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the OfferorShareholder’s interest in the Company at a price equal to the amount Selling Shareholder at the Offeror would have received pursuant to a liquidation purchase price and on the other terms and conditions specified in the Offer, which purchase price shall be payable in immediately available funds, and the closing of such sale shall take place at the principal office of the Company if as soon as practicable, but in any event within one hundred twenty (120) days after receipt of the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established)Offer. If the Offeree fails to make At such an election within the Buy-Sell Election Periodclosing, the Offeree Shareholder shall be deemed to have elected to sell and transfer its interests entire interest in the Company. Within ten (10) days of , and shall cause its Affiliates to sell and transfer their entitle interest in the expiration of the Buy-Sell Election PeriodCompany, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the MembersSelling Shareholder free and clear of pledges, which amount shall be applied to the purchase price as liens, security interests and other encumbrances other than pledges arising out of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Memberfinancing. (d) Closing shall occur If the Offeree Shareholder elects clause (ii) of paragraph 9(b), the Selling Shareholder will sell its entire interest in the Company, and will cause its Affiliates to sell their entire interest in the Company, to the Offeree Shareholder at the offices purchase price and on the other terms and conditions specified in the Offer, and the Selling Shareholders shall, within ninety (90) days after receipt of the Notice of Election, execute such documents and instruments reasonably required by the Offeree Shareholder to sell and transfer the Selling Shareholder’s interest in the Company no later than thirty (30) days following to the date after Offeree Shareholder at the expiration of purchase price and on the Buy-Sell Election Period. It is understood other terms and agreed that if a portion of conditions specified in the Assets are sold between Offer, which purchase price shall be payable in immediately available funds, and the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds closing of such sale shall be retained by take place at the office of the Company and not distributed to as soon as practicable, but in any event within one hundred twenty (120) days after receipt of the MembersOffer. At the such closing, the applicable interests in the Company Selling Shareholder shall be duly conveyed, free of all liens sell and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests its entire interest in the Company to be purchased may be acquired in the name Offeree Shareholder free and clear of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member)pledges, providedliens, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations security interests and other documents as may be reasonably required by counsel for the encumbrances other than pledges arising out of Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Memberfinancing. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Upon Each Shareholder shall have the failure of Members to agree on any Major Decision or any other issue that could have a material impact on right, after the Company, in the event of termination fifth anniversary of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three (3) years after the execution date of this Agreement, any Member that is not Agreement to provide a Delinquent Member written notice in accordance with paragraph 21 (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members Investor Shareholder (the “OffereeOfferee Shareholder”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall equal the fair market value of the Assets. An to offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests interest of the Selling Shareholder and its Affiliates in the Company (including any interests held by, or Transferred to, its Affiliates), so long as to the Offeree is not Shareholder at a Delinquent Member, or (ii) to per share purchase all, but not less than all, of price and upon the Offeree’s interests other terms and conditions specified in the Company Offer. Notwithstanding the immediately preceding sentence, no Shareholder may provide an Offer at any time during the period which commences on the date that a Transfer Notice has been provided pursuant to paragraph 3(b) and ends sixty-one (including any interests held by or Transferred to its Affiliates61) days after the Authorization Date described in paragraph 3(b). (b) If the The Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a Shareholder must elect by written notice (the “Notice of Election”) to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day period, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer Selling Shareholder within thirty (30) days after the expiration receipt of the 10-day appraiser selection period. If Offer, either: (i) to sell the two appraisers can not agree Offeree Shareholder’s entire interest in the Company to the Selling Shareholder at the per share purchase price and on the Buy-Sell Value within other terms and conditions specified in the 30-Offer, or (ii) to purchase the entire interest of the Selling Shareholder and its Affiliates in the Company at a purchase price equal to the price set forth in the Offer and on the other terms and conditions specified in the Offer. During such sixty (60) day period period, subject to the terms of the Mutual Nondisclosure Agreement between Carlyle Investment Management, L.L.C. and Apollo dated August 2, 2007 (the “Initial Appraisal PeriodConfidentiality Agreement”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end ), each of the Initial Appraisal Period Offeree Shareholder and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end Selling Shareholder may perform a confirmatory due diligence evaluation of the five (5) -day appraiser selection period (Company and its Subsidiaries, and the “Additional Appraisal Period”)Company shall, and shall cause its Subsidiaries to, afford to the Offeree Shareholder’s and the Selling Shareholder’s respective officers, directors, employees, accountants, counsel, consultants, advisors and agents reasonable access to and the right to inspect, during normal business hours and with reasonable advance notice, all of the real property, properties, assets, records, contracts and other documents related to the Company and its Subsidiaries, and shall permit them to consult, during normal business hours and with reasonable advance notice, with the officers, employees, accountants, counsel and agents of the Company and its Subsidiaries for the purpose of making such investigation of the Company and its Subsidiaries as the Offeree Shareholder and the Selling Shareholder shall desire to make. The determination parties agree that Carlyle shall act in all respects under this paragraph 9(b) on behalf of the Buy-Sell Value by the third appraiser shall be finalall of its Affiliates including without limitation providing Notices of Election. (c) The If the Offeree shall have thirty Shareholder elects clause (30i) of paragraph 9(b), the Investor Shareholders shall, within ninety (90) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration Notice of Election, execute such documents and instruments reasonably required by the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) Selling Shareholder to sell its interests in the Company at a price equal to the amount and transfer the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the OfferorShareholder’s interest in the Company at a price equal to the amount Selling Shareholder at the Offeror would have received pursuant to a liquidation purchase price and on the other terms and conditions specified in the Offer, which purchase price shall be payable in immediately available funds, and the closing of such sale shall take place at the principal office of the Company if as soon as practicable, but in any event within one hundred twenty (120) days after receipt of the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established)Offer. If the Offeree fails to make At such an election within the Buy-Sell Election Periodclosing, the Offeree Shareholder shall be deemed to have elected to sell and transfer its interests entire interest in the Company. Within ten (10) days of , and shall cause its Affiliates to sell and transfer their entitle interest in the expiration of the Buy-Sell Election PeriodCompany, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the MembersSelling Shareholder free and clear of pledges, which amount shall be applied to the purchase price as liens, security interests and other encumbrances other than pledges arising out of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Memberfinancing. (d) Closing shall occur If the Offeree Shareholder elects clause (ii) of paragraph 9(b), the Selling Shareholder will sell its entire interest in the Company, and will cause its Affiliates to sell their entire interest in the Company, to the Offeree Shareholder at the offices purchase price and on the other terms and conditions specified in the Offer, and the Selling Shareholders shall, within ninety (90) days after receipt of the Notice of Election, execute such documents and instruments reasonably required by the Offeree Shareholder to sell and transfer the Selling Shareholder’s interest in the Company no later than thirty (30) days following to the date after Offeree Shareholder at the expiration of purchase price and on the Buy-Sell Election Period. It is understood other terms and agreed that if a portion of conditions specified in the Assets are sold between Offer, which purchase price shall be payable in immediately available funds, and the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds closing of such sale shall be retained by take place at the office of the Company and not distributed to as soon as practicable, but in any event within one hundred twenty (120) days after receipt of the MembersOffer. At the such closing, the applicable interests in the Company Selling Shareholder shall be duly conveyed, free of all liens sell and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests its entire interest in the Company to be purchased may be acquired in the name Offeree Shareholder free and clear of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member)pledges, providedliens, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations security interests and other documents as may be reasonably required by counsel for the encumbrances other than pledges arising out of Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Memberfinancing. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Upon the failure of Members to agree on any Major Decision or any other issue that could have a material impact on the Company, in the event of termination The owners of the Hotel Development Agreement, the Fractional Development Agreement Class A Units or the Fractional Management Agreement, or at any time after three (3) years after owners of the execution of this Agreement, any Member that is not Class B Units acting collectively as a Delinquent Member group (the “Offeror”) may at any time make an a buy-sell offer in writing (the “Offer”) to the other Members group, excluding owners or affiliates owning only Non-Units (the “Offeree”), which shall state an amount () by notifying the “Buy-Sell Value”) determined Offeree in the sole and absolute discretion writing of the exercise of this right and stating in such notice the price at which the Offeror is willing either to buy all of the Units of the Company owned by the Offeree, or to sell the Offeree all of the Units of the Company owned by the Offeror, with the price per Unit and Non-Unit being the same for both the purchase and the sale. The Buy-Sell Value Offer shall equal the fair market value of the Assets. An offer made pursuant be deemed to this Section 8.4 shall constitute include as an irrevocable offer additional term and condition a promise by the Offeror to cause the release of the Offeree either from all liabilities of the Company for which the Offeree or any asset of the Offeree is liable or subject to attachment as a result of being a guarantor or co-maker of such liabilities or a pledgor or mortgagor of assets securing such liabilities; provided, however, that any Person who will continue to be a Member of the Company after the closing shall not be entitled to such a release. The Offer shall not be revocable once the aforesaid notice has been delivered to the Offeree, (b) Within thirty (30) days after receipt by the Offeree of the Offeror’s written notice of the Offer, the Offeree shall send to the Offeror a written notice stating whether the Offeree elects (i) to sell all, but not less than all, purchase from the Offeror all of the Offeror’s interests Units of the Company owned by the Offeror at the price stated in the Company Offer and in accordance with the other terms and conditions thereof (including any interests held by, or Transferred to, its Affiliatesa release of the Offeror from personal liability for debts of the Company), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice sell to the Offeror indicating that that an appraisal shall be required to determine all of the Buy-Sell Value. If Units of the Company owned by the Offeree does not deliver such at the price stated in the Offer and in accordance with the other terms and conditions thereof (including a notice within the ten (10) -day period, release of the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as personal liability for debts of the time of the Offer within thirty (30) days after the expiration of the 10-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-day period (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day appraiser selection period (the “Additional Appraisal Period”Company). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree Any Offer, notice or election which may be given by a group hereunder shall have thirty (30) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests not be effective unless it is signed by all Persons included in the Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established)such group. If the Offeree fails shall fail to make such an election notify the Offeror whether the Offeree elects to buy or sell within the Buy-Sell Election Periodtime period specified in subparagraph (b) above, or if the notice delivered by the Offeree pursuant to such subparagraph is not signed by all of the Persons included in the Offeree group, the Offeree and each Person included in the Offeree group shall be deemed to have elected to sell its interests in the Company. Within ten (10) days all of the expiration their Units of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Memberthe Offeror. (d) Closing The closing of the sale shall occur be held at the offices of Company’s principal office (or at such other place as the Company Offeror and the Offeree may in writing agree) no later than thirty fifteen (3015) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(anotice period specified in clause (b) above and closing, the proceeds of such sale shall be retained by the Company and not distributed to the Membersabove. At the closing the purchaser or purchasers shall deliver to the seller or sellers (i) the releases from liability for debts of the Company, as contemplated by subparagraphs (a) and (b) above, and (ii) payment shall be made in the form a promissory note payable in six (6) equal annual installments of principal and interests a floating annual rate of interest equal to the lesser of (i) eight percent (8%), or (ii) the maximum rate permitted by law compounded monthly with the first such payment due at closing, except if the applicable interests in seller is then indebted to the Company shall be duly conveyedpurchaser, free of all liens and encumbrances, and such purchaser may set-off the purchase price against and to the extent of such indebtedness, even if such indebtedness is not then due and payable. Further, at the closing each seller shall be paid by wire transfer deliver to the purchaser or purchasers an assignment and xxxx of immediately available federal funds. At the election sale duly Transferring all of such seller’s Units of the purchasing Member, the applicable interests in the Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, Company. Each Member hereby covenants and warrants that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness Unit of the Company executed which is sold by the selling such Member pursuant to this Section will be free and clear of all liens, encumbrances, security interests, charges and claims of others of every kind or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations character as of the Company to the selling Member as of such timeclosing. (e) Upon receipt of Notwithstanding the purchase priceforegoing, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as no Offer may be reasonably required by counsel for made pursuant to this Section (i) within four (4) years from the Company to accomplish the withdrawal date of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and or (ii) the uniqueness after an occurrence of an event causing an option under Section 8.6 to become exercisable with respect to all or part of the Company business and Members’ relationship. Accordingly, each Units of the aforesaid obligations shall beOfferor or Offeree until such time as such option has expired or, and is hereby expressly madeif exercised, enforceable by specific performancesuch Units have been purchased pursuant thereto.

Buy-Sell Agreement. (a) Upon At any time after the failure seventh anniversary of Members to agree on any Major Decision or any other issue that could have a material impact on the formation of the Company, in the event of termination of the Hotel Development Agreementeither TCI or Fishxx (xx applicable, the Fractional Development Agreement or "Initiating Member") shall have the Fractional Management Agreement, or at any time after three (3) years after the execution of this Agreement, any Member that is not right to initiate a Delinquent Member buy-sell procedure by giving written notice (the “Offeror”) may make an offer in writing (the “Offer”"Offer Notice") to the other Members party (the “Offeree”), which shall state an amount ("Non-Initiating Member") that it desires to purchase the “BuyNon-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall Initiating Member's Ownership Interest for a price equal the fair market value of the Assets. An offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to Non-Initiating Member's Adjusted Capital Account Value or sell all, but not less than all, of the Offeror’s interests in the Company (including any interests held by, or Transferred to, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice Ownership Interest to the Offeror indicating that that an appraisal shall be required Non-Initiating Member for a price equal to determine the Buy-Sell Initiating Member's Adjusted Capital Account Value. If the Offeree does not deliver such a notice within the ten (10) -day period, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within Within thirty (30) days after the expiration of the 10-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-day period Offer Date (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day appraiser selection period (the “Additional Appraisal Period”"Election Date"). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty (30) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to Non-Initiating Member shall elect either (A) to sell its interests in the Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (Ba) to buy the Offeror’s interest Initiating Member's Ownership Interest, for an amount equal to the Initiating Member's Adjusted Capital Account Value, (b) to sell the Non-Initiating Member's Ownership Interest to the Initiating Member, for an amount equal to the Non-Initiating Member's Adjusted Capital Account Value, or (c) neither purchase the Initiating Member's Ownership Interest or sell its Ownership Interest. If the Non-Initiating Member elects to purchase the Initiating Member's Ownership Interest, the Ownership Interest of the Initiating Member shall be purchased by the Non- Initiating Member at the price and upon the terms and conditions set forth in the Offer Notice. If the Non-Initiating Member elects to sell its Ownership Interest, the Ownership Interest of the Non-Initiating Member shall be purchased by the Initiating Member at the price and upon the terms and conditions set forth in the Offer Notice. Any sale and purchase of Ownership Interests in accordance with the provisions of this Section 8.2 shall be closed at the principal office of the Company at a price equal to 2:00 p.m., Mountain Standard Time, within twelve months after the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value Offer Date, and the proceeds therefrom had been applied all requisite documents, instruments and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within the Buy-Sell Election Period, the Offeree papers shall be deemed to have elected to sell its interests in the Company. Within ten (10) days of the expiration of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Member. (d) Closing shall occur signed at the offices of the Company no later than thirty (30) days following on the date after the expiration of the Buy-Sell Election Periodday fixed for such closing. It is understood All expenses and agreed that if a portion of the Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closingfees, the proceeds of including legal fees, incurred in connection with any such sale shall be retained by the Company and not distributed to the Members. At the closing, the applicable interests in the Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price closing shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests in the Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed ratably by the selling Member or any Affiliates of (or principals in) such selling Memberand purchasing Members. The purchasing Member, in addition parties will use good faith efforts to paying at the closing the purchase price, shall be obligated to loan effect any transaction pursuant to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations procedures set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligationstax-efficient manner, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performancesuch as a tax-deferred reorganization.

Buy-Sell Agreement. (a) Upon the failure of Members With respect to agree on any Major Decision or any other issue that could have a material impact on the Company, in the event of termination of the Hotel Development Agreementeach Equity Partnership, the Fractional Development Agreement or the Fractional Management Agreement, or following Buy Sell provisions shall apply: If at any time after three (3) years after December 31, 2005, and for any reason, those Partners of such Partnership who are members, subsidiaries of members or affiliates of the execution of this Agreement, any Member that is not a Delinquent Member Five Star Group (the “Five Star Partners”) desire to either sell their collective Partnership Interests in such Partnership to those Partners of such Partnership who are members, subsidiaries of members or affiliates of members of the Fairways Group (“Fairways Partners”), or the Fairways Group desires to sell its Partnership Interests in such Partnership to the Five Star Group, then such group desiring to sell (“Offeror”) may make an offer in writing shall send a written notice (the “OfferNotice”) of such desire to sell to the other Members group (the “Offeree”)) which Notice shall set forth a gross value for all Property owned by such Partnership. Within sixty (60) days of delivery of such Notice, which Offeree shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall equal the fair market value of the Assets. An offer made pursuant elect either to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, purchase all of the Offeror’s interests Partnership Interests in the Company (including any interests held bysuch Partnership, or Transferred toOfferee may elect to sell all of its Partnership Interests in such Partnership to Offeror, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) in which event Offeror shall be obligated to purchase all, but not less than all, all of the Offeree’s interests Partnership Interests in the Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice to the Offeror indicating that that an appraisal such Partnership. Such election shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day periodmade in writing, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within thirty (30) days after the expiration of the 10-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-day period (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day appraiser selection period (the “Additional Appraisal Period”). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty (30) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests in the Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within the Buy-Sell Election Periodwritten election, the Offeree shall be deemed to have elected to sell its interests Partnership Interests. The purchase price to be paid by the purchasing group to the selling group for all of the selling group’s Partnership Interests shall be equal to the amount that the selling group would receive if all of the assets of such Partnership were sold at a price equal to the gross value set forth in the Company. Within ten (10) days Notice, all liabilities of such Partnership as of the expiration closing date were paid in full and the remaining proceeds distributed to the Partners pursuant to the terms of the Buy-Sell Election Period, Existing Partnership Agreement as amended by this Agreement. The purchase price shall be paid 20% in cash at closing and the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent remaining balance (1.080%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Member. (d) Closing shall occur at the offices of the Company no later than thirty (30) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds of such sale shall be retained by the Company and not distributed to the Members. At the closing, the applicable interests in the Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid evidenced by wire transfer a promissory note secured by the Partnership Interests purchased, bearing interest at the prime or base rate of immediately available federal funds. At interest plus two percent (2%) at Bank of America, NA, and payable in equal quarterly installments of principal and interest for sixteen successive quarters on the election last day of the purchasing Membermonth of each such quarter, commencing with the applicable interests in the Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate last day of the Purchasing Member), provided, that third month following the Purchasing Member closing. The closing of such purchase and sale shall have designated such nominee by written notice prior to occur on or before the date of purchase. It shall be a condition one hundred twentieth (120th) day following the delivery of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such timeNotice. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Upon the failure of Members to agree on any Major Decision or any other issue that could have a material impact on the Company, in the event of termination of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three (3) years after the execution of this Agreement, any Any Member that is not a Delinquent Member (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members (the “Offeree”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall be the amount that (i) if the Offeror is initiating the Buy-Sell as a result of an event of default under this Agreement, the Development Agreements or the Management Agreements or as a result of deadlock between the Members (“Cause”), shall equal the fair market value of the Assets and the Assets of the Condo Company (as defined in that certain limited liability company agreement of The Condo Company) (the “Total Assets”) and (ii) if the Offeror is initiating the Buy-Sell for any reason other than for Cause, shall equal the value of the Total Assets plus (i) any Termination Fee (as defined in the Development Agreements) plus (ii)any Termination Fee (as defined in the Hotel Management Agreement) required pursuant to the Hotel Management Agreement (such Termination Fees set forth in (i) and (ii) above to be paid only if the Member selling its interests in the Company is Xxxxx Investor). An offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests in the Company and the Condo Company (including any interests held by, or Transferred to, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company and the Condo Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents an amount that is less than the fair market value of the Total Assets at the time of the Offer(plus any Termination Fees, as appropriate), then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day day period, the then Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa condominium business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within thirty (30) days after the expiration of the ten (10-) day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-30 day period (the “Initial Appraisal Period”) ), then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day day appraiser selection period (the “Additional Appraisal Period”). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty sixty (3060) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests in the Company and the Condo Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company and the Condo Company if the Total Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established); or (B) to buy the Offeror’s interest in the Company and the Condo Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company and the Condo Company if the Total Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within during the Buy-Sell Election Period, the Offeree shall be deemed to have elected to sell its interests in the Company. Within ten (10) days of the expiration of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company and the Condo Company to be purchased by each such Member. (d) Closing shall occur at the offices of the Company no later than thirty ninety (3090) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Total Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds of such sale shall be retained by the Company and/or the Condo Company and not distributed to the Members. At the closing, the applicable interests in the Company and the Condo Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests in the Company and the Condo Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company and the Condo Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company and the Condo Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company and the Condo Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 8.6 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) A Member desiring to withdraw from the Company and Dispose of all, but not a portion of, its Membership Interests (the WITHDRAWING MEMBER) may, from and after December 31, 1998, offer the Remaining Members on a pro rata basis all of its Membership Interests at the price and under the terms and conditions set forth in a written offering from such Withdrawing Member (the OFFERING MEMORANDUM). Upon the failure receipt of an Offering Memorandum, the Remaining Members shall have the option, but not the obligation, exercisable within thirty (30) days from the receipt of the Offering Memorandum (the DETERMINATION DATE) to agree purchase from the Withdrawing Member all of the Membership Interests owned by the Withdrawing Member at the price provided for in the Offering Memorandum. In the event the Remaining Members do not, on or before the Determination Date, elect to purchase all of the Membership Interests held by the Withdrawing Member at the price provided for in the Offering Memorandum, the Withdrawing Member shall have an identical option to purchase such Remaining Members' Membership Interests, under the same terms and conditions and at the same price per Interest, but exercisable within thirty (30) days of the Determination Date. Neither Member may initiate the Buy-Sell provision more than once in any Major Decision six-month period. (b) The closing of the sale of Membership Interests pursuant to this Section 11.4 shall be held at the office of the attorney for the selling Member on a date and at a time to be mutually agreed upon by the Members, but no later than sixty (60) days after the election to purchase by the acquiring party. Except as specified in paragraph (d) below, payment of the purchase price for the Membership Interest shall be made by wire transfer of immediately available funds or by certified check. Each Member shall bear its own costs associated with the Buy-Sell Agreement. (c) Upon the decision of the Withdrawing Party to exercise this Buy-Sell Agreement, each Member covenants and agrees that it shall disclose any other issue that and all discussions or negotiations which have taken place within the ninety (90) day period preceding the exercise of the Buy-Sell Agreement with third parties, the consummation, conclusion, completion or enactment of which could have a material impact on the Company, in the event of termination of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three (3) years after the execution of this Agreement, any Member that is not a Delinquent Member (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members (the “Offeree”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall equal the fair market value of the Assets. An offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests in the Company (including any interests held by, or Transferred to, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents less than the fair market value of the Assets at the time of the Offer, then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day period, the Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within thirty (30) days after the expiration of the 10-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-day period (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day appraiser selection period (the “Additional Appraisal Period”). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty (30) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests in the Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within the Buy-Sell Election Period, the Offeree shall be deemed to have elected to sell its interests in the Company. Within ten (10) days of the expiration of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company to be purchased by each such Member. (d) Closing shall occur at In the offices of event that PRC purchases NHP's Membership Interests in the Company no later than thirty (30) days following the date after the expiration of pursuant to the Buy-Sell Election Period. It is understood and agreed Agreement, NHP agrees that if a portion NHP shall, upon PRC's written request allow up to seventy percent (70%) of the Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds of such sale shall be retained by the Company and not distributed to the Members. At the closing, the applicable interests in the Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall for such Membership Interests to be paid by wire transfer a promissory note made by PRC on the following terms and conditions: over a five (5) year period at a variable interest rate which is equal to Prime Rate plus one percent (1%) per annum for the first year during which such financing is outstanding (a LOAN YEAR); Prime Rate plus two percent (2%) per annum for the second Loan Year; Prime Rate plus three percent (3%) per annum for the third Loan Year; Prime Rate plus four percent (4%) for the fourth Loan Year, and Prime Rate plus five percent (5%) for the fifth Loan Year. Such loan shall be repaid with monthly installments of immediately available federal funds. At interest only for the election first Loan Year, and, thereafter with respect to each Loan Year, with monthly installments of interest plus principal amortized on the basis of a fifteen year schedule, commencing on the first day of the purchasing Membersecond Loan Year and secured by a first-priority, the applicable interests perfected lien on all PRC (and those of its Affiliates and Permitted Transferees) Membership Interests in the Company to be purchased may be acquired in the name favor of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchaseNHP. It The aforesaid loan shall be a condition made on the basis of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed loan documents prepared by the selling Member or any Affiliates of NHP which are reasonable and customary for similar transactions (or principals in) such selling Member. The purchasing Memberincluding, in addition to paying at the closing the purchase pricewithout limitation, shall be obligated to loan to the Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company to the selling Member as of such timelegal opinions). (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.

Buy-Sell Agreement. (a) Upon the failure of Members to agree on any Major Decision or any other issue that could have a material impact on the Company, in the event of termination of the Hotel Development Agreement, the Fractional Development Agreement or the Fractional Management Agreement, or at any time after three (3) years after the execution of this Agreement, any Any Member that is not a Delinquent Member (the “Offeror”) may make an offer in writing (the “Offer”) to the other Members (the “Offeree”), which shall state an amount (the “Buy-Sell Value”) determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall be the amount that (i) if the Offeror is initiating the Buy-Sell as a result of an event of default under this Agreement, the Development Agreements or the Management Agreements or as a result of deadlock between the Members (“Cause”), shall equal the fair market value of the Assets and the Assets of the Hotel Company (as defined in that certain limited liability company agreement of The Hotel Company) (the “Total Assets”) and (ii) if the Offeror is initiating the Buy-Sell for any reason other than for Cause, shall equal the value of the Total Assets plus (i) any Termination Fee (as defined in the Development Agreements) plus (ii)any Termination Fee (as defined in the Hotel Management Agreement) required pursuant to the Hotel Management Agreement (such Termination Fees set forth in (i) and (ii) above to be paid only if the Member selling its interests in the Company is Xxxxx Investor). An offer made pursuant to this Section 8.4 shall constitute an irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not less than all, of the Offeror’s interests in the Company and the Hotel Company (including any interests held by, or Transferred to, its Affiliates), so long as the Offeree is not a Delinquent Member, or (ii) to purchase all, but not less than all, of the Offeree’s interests in the Company and the Hotel Company (including any interests held by or Transferred to its Affiliates). (b) If the Offeree believes in good faith that the Buy-Sell Value represents an amount that is less than the fair market value of the Total Assets at the time of the Offer(plus any Termination Fees, as appropriate), then Offeree may, within ten (10) days of receipt of the Offer, deliver a written notice to the Offeror indicating that that an appraisal shall be required to determine the Buy-Sell Value. If the Offeree does not deliver such a notice within the ten (10) -day 10)-day period, the then Offeree will be deemed to have accepted the Buy-Sell Value. Both Offeror and Offeree shall each select an appraiser from a nationally recognized business valuation services firm qualified to perform hotel/spa condominium business valuation appraisals within ten (10) days after receipt by Offeror of written notice that an appraisal shall be required. The two appraisers shall determine the Buy-Sell Value as of the time of the Offer within thirty (30) days after the expiration of the 10-day ten (10)-day appraiser selection period. If the two appraisers can not agree on the Buy-Sell Value within the 30-thirty day period (the “Initial Appraisal Period”) then the appraisers shall jointly select a third appraiser with similar qualifications within five (5) business days after the end of the Initial Appraisal Period and such appraiser shall determine the Buy-Sell Value within thirty (30) days after the end of the five (5) -day 5)-day appraiser selection period (the “Additional Appraisal Period”). The determination of the Buy-Sell Value by the third appraiser shall be final. (c) The Offeree shall have thirty sixty (3060) days after the later of (i) receipt of an Offer made pursuant to this Section 8.4(a) or (ii) the expiration of the Initial Appraisal Period (or, if necessary, the Additional Appraisal Period), if necessary, to elect either (A) to sell its interests in the Company and the Hotel Company at a price equal to the amount the Offeree would have received pursuant to a liquidation of the Company and the Hotel Company if the Total Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established); or (B) to buy the Offeror’s interest in the Company and the Hotel Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company and the Hotel Company if the Total Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established) (the “Buy-Sell Election Period”); or (B) to buy the Offeror’s interest in the Company at a price equal to the amount the Offeror would have received pursuant to a liquidation of the Company if the Assets had been sold to a third party for the Buy-Sell Value and the proceeds therefrom had been applied and distributed in accordance with Section 12.2 (assuming that all allocations resulting from the sale had been made and no reserves are established). If the Offeree fails to make such an election within during the Buy-Sell Election Period, the Offeree shall be deemed to have elected to sell its interests in the Company. Within ten (10) days of the expiration of the Buy-Sell Election Period, the purchasing Member shall deposit into escrow a non-refundable amount equal to one percent (1.0%) of the Buy-Sell Value (the “Escrow Deposit”) with a nationally recognized title insurance company mutually acceptable to the Members, which amount shall be applied to the purchase price as of the Closing. In any case in which there is more than one purchasing Member, the purchasing Members shall determine the proportions of the interests in the Company and the Hotel Company to be purchased by each such Member. (d) Closing shall occur at the offices of the Company no later than thirty ninety (3090) days following the date after the expiration of the Buy-Sell Election Period. It is understood and agreed that if a portion of the Total Assets are sold between the time that the Offeror initiates the procedure set forth Section 8.4(a) above and closing, the proceeds of such sale shall be retained by the Company and/or the Hotel Company and not distributed to the Members. At the closing, the applicable interests in the Company and the Hotel Company shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member, the applicable interests in the Company and the Hotel Company to be purchased may be acquired in the name of a nominee (whether or not such nominee is an Affiliate of the Purchasing Member), provided, that the Purchasing Member shall have designated such nominee by written notice prior to the date of purchase. It shall be a condition of the selling Member’s obligation to proceed with any such purchase that the purchasing Member shall have obtained releases of any guaranties of indebtedness of the Company executed by the selling Member or any Affiliates of (or principals in) such selling Member. The purchasing Member, in addition to paying at the closing the purchase price, shall be obligated to loan to the Company and the Hotel Company an amount sufficient to discharge at the closing all outstanding and unpaid obligations of the Company and the Hotel Company to the selling Member as of such time. (e) Upon receipt of the purchase price, the selling Member shall execute and deliver all documents reasonably required to transfer the interest in the Company being sold. The selling Member shall also execute such resignations and other documents as may be reasonably required by counsel for the Company to accomplish the withdrawal of the selling Member as a Member of the Company and the purchasing Member shall assume all of the selling Member’s obligations to the Hotel Company and any of its creditors under any loans to the Company permitted by this Agreement, such assumptions to be in form reasonably satisfactory to counsel for the selling Member. (f) It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Section 8.4 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply fully with each of said obligations, and (ii) the uniqueness of the Company business and Members’ relationship. Accordingly, each of the aforesaid obligations shall be, and is hereby expressly made, enforceable by specific performance.being