Common use of Establishment of Purchase Price; Exercise of Option Clause in Contracts

Establishment of Purchase Price; Exercise of Option. (a) If the Condor Member exercises the Option and the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of exercise is less than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), the Property Valuation to be used in determining the purchase price of the Optioned Interests shall be Forty-Eight Million Dollars ($48,000,000.00). The Approved Accountants shall determine based on such Property Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the Property were sold on such date free and clear of all liabilities secured by the Property at such Property Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined shall be the purchase price of the Optioned Interests. (b) If the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of delivery of Condor’s notice of intent to exercise described below will be equal to or greater than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), and Condor Member desires to exercise the Option, it shall deliver to the TWC Member and the Promote Member a notice of its intent to exercise the Option and include with its notice of intent a Property Valuation. The TWC Member and Promote Member shall have thirty (30) days after receipt of the notice of intent and Property Valuation to deliver notice to the Condor Member objecting to the Property Valuation and providing a Property Valuation on a going concern value basis from a Qualified Broker. If the TWC Member and Promote Member do not timely object to the Property Valuation and provide the alternative Property Valuation from a Qualified Broker, then the Property Valuation delivered by the Condor Member shall be used to determine the purchase price. If the TWC Member and Promote Member timely object to the Property Valuation and provide the second Property Valuation, the Property Valuation to be used to set the purchase price shall be determined in accordance with the methodology involving the valuation by a third Qualified Broker, which is set forth in Section 13.1.1. Once the Property Valuation has been established, the Approved Accountants shall determine based on such Property Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the Property were sold on such date free and clear of all liabilities secured by the Property at such Property Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined, together with the TWC Shortfall to be paid by Condor Member to TWC Member, shall be the purchase price. It is the intent of the Members that the TWC Shortfall shall be paid to the TWC Member as a portion of the purchase price and in addition to amounts distributed to TWC Member pursuant to Section 5.1.2 based upon the Property Valuation. The Condor Member shall have a period of thirty (30) days after the purchase price is established, whether by agreement of the Members or by notice from the Approved Accountants, to exercise the Option by delivering notice of exercise to the TWC Member and the Promote Member, stating the closing date, time, and place for the purchase of the Optioned Interests, which closing date shall be at any time in the ninety (90) day period subsequent to the date of delivery of the Option exercise notice, and delivering an amount equal to five percent (5%) of the purchase price (the “Option Deposit”) to the Buy-Sell Escrow Agent. If the Condor Member does not elect to exercise the Option within the 30 day period, the Option shall remain in effect, but in order to exercise it, the Condor Member will have to give a new notice of intent accompanied by a current Property Valuation, if the purchase price will be determined under this Section 13.5.2(b).

Establishment of Purchase Price; Exercise of Option. (a) If the Condor Member exercises the Option and the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of exercise is less than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), the Property Valuation to be used in determining the purchase price of the Optioned Interests shall be Forty-Eight Five Million Sixty Thousand Four Hundred Eighty-Two Dollars ($48,000,000.0045,060,482.00). The Approved Accountants shall determine based on such Property Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the Property were sold on such date free and clear of all liabilities secured by the Property at such Property Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined shall be the purchase price of the Optioned Interests. (b) If the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of delivery of Condor’s notice of intent to exercise described below will be equal to or greater than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), and Condor Member desires to exercise the Option, it shall deliver to the TWC Member and the Promote Member a notice of its intent to exercise the Option and include with its notice of intent a Property Valuation. The TWC Member and Promote Member shall have thirty (30) days after receipt of the notice of intent and Property Valuation to deliver notice to the Condor Member objecting to the Property Valuation and providing a Property Valuation on a going concern value basis from a Qualified Broker. If the TWC Member and Promote Member do not timely object to the Property Valuation and provide the alternative Property Valuation from a Qualified Broker, then the Property Valuation delivered by the Condor Member shall be used to determine the purchase price. If the TWC Member and Promote Member timely object to the Property Valuation and provide the second Property Valuation, the Property Valuation to be used to set the purchase price shall be determined in accordance with the methodology involving the valuation by a third Qualified Broker, which is set forth in Section 13.1.1. Once the Property Valuation has been established, the Approved Accountants shall determine based on such Property Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the Property were sold on such date free and clear of all liabilities secured by the Property at such Property Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined, together with the TWC Shortfall to be paid by Condor Member to TWC Member, shall be the purchase price. It is the intent of the Members that the TWC Shortfall shall be paid to the TWC Member as a portion of the purchase price and in addition to amounts distributed to TWC Member pursuant to Section 5.1.2 based upon the Property Valuation. The Condor Member shall have a period of thirty (30) days after the purchase price is established, whether by agreement of the Members or by notice from the Approved Accountants, to exercise the Option by delivering notice of exercise to the TWC Member and the Promote Member, stating the closing date, time, and place for the purchase of the Optioned Interests, which closing date shall be at any time in the ninety (90) day period subsequent to the date of delivery of the Option exercise notice, and delivering an amount equal to five percent (5%) of the purchase price (the “Option Deposit”) to the Buy-Sell Escrow Agent. If the Condor Member does not elect to exercise the Option within the 30 day period, the Option shall remain in effect, but in order to exercise it, the Condor Member will have to give a new notice of intent accompanied by a current Property Valuation, if the purchase price will be determined under this Section 13.5.2(b).

Establishment of Purchase Price; Exercise of Option. (a) If the Condor Member exercises the Option and the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of exercise is less than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), the Property Leasehold Valuation to be used in determining the purchase price of the Optioned Interests Interest shall be FortyTwo Million Nine Hundred Thirty-Eight Million Nine Thousand Five Hundred Twenty Dollars ($48,000,000.002,939,520.00). The Approved Accountants shall determine based on such Property Leasehold Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the Property were sold on such date free and clear of all liabilities secured by the Property at such Property Leasehold Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined shall be the purchase price of the Optioned InterestsInterest. (b) If the Net Operating Income for the twelve (12) full calendar months immediately prior to the date of delivery of Condor’s notice of intent to exercise described below will be equal to or greater than Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00), and Condor Member desires to exercise the Option, it shall deliver to the TWC Member and the Promote Member a notice of its intent to exercise the Option and include with its notice of intent a Property Leasehold Valuation. The TWC Member and Promote Member shall have thirty (30) days after receipt of the notice of intent and Property Leasehold Valuation to deliver notice to the Condor Member objecting to the Property Leasehold Valuation and providing a Property Leasehold Valuation on a going concern value basis from a Qualified Broker. If the TWC Member and Promote Member do does not timely object to the Property Leasehold Valuation and provide the alternative Property Leasehold Valuation from a Qualified Broker, then the Property Leasehold Valuation delivered by the Condor Member shall be used to determine the purchase price. If the TWC Member and Promote Member timely object objects to the Property Leasehold Valuation and provide the second Property Leasehold Valuation, the Property Leasehold Valuation to be used to set the purchase price shall be determined in accordance with the methodology involving the valuation by a third Qualified Broker, which is set forth in Section 13.1.1. Once the Property Leasehold Valuation has been established, the Approved Accountants shall determine based on such Property Leasehold Valuation, the amount that would be distributed to the TWC Member and Promote Member as of the date of exercise of the Option, if the leasehold interest in the Property were sold on such date free and clear of all liabilities secured by the leasehold interest in the Property (other than the Loan) at such Property Leasehold Valuation (excluding and without taking into account customary and reasonable closing costs, including any transfer taxes, sales taxes or any fees required under the Loan Documents), and the amount so determined, together with the TWC OpCo Shortfall to be paid by Condor Member to TWC Member, shall be the purchase price. It is the intent of the Members that the TWC OpCo Shortfall shall be paid to the TWC Member as a portion of the purchase price and in addition to amounts distributed to TWC Member pursuant to Section 5.1.2 based upon the Property Leasehold Valuation. The Condor Member shall have a period of thirty (30) days after the purchase price is established, whether by agreement of the Members or by notice from the Approved Accountants, to exercise the Option by delivering notice of exercise to the TWC Member and the Promote Member, stating the closing date, time, and place for the purchase of the Optioned InterestsInterest, which closing date shall be at any time in the ninety (90) day period subsequent to the date of delivery of the Option exercise notice, and delivering an amount equal to five percent (5%) of the purchase price (the “Option Deposit”) to the Buy-Sell Escrow Agent. If the Condor Member does not elect to exercise the Option within the 30 day period, the Option shall remain in effect, but in order to exercise it, the Condor Member will have to give a new notice of intent accompanied by a current Property Leasehold Valuation, if the purchase price will be determined under this Section 13.5.2(b).