Coach 2013 Annual Report Download - page 180

7.7. Management Change Event; Limitation on Approval Rights .
(a) In the event that (i) Developer shall fail to achieve any of the third through the thirteenth Major Milestone Events set forth in
Section 6.02(a) of the Development Agreement within nine (9) months of the applicable Major Milestone Outside Date (as extended on a day-for-day basis by
reason of Force Majeure, Coach Change Delays extending beyond the Change Order Grace Period or Coach Work Delays) in accordance with the terms of the
Development Agreement, and in the event of any dispute with respect thereto, it shall have been determined by the Arbiters pursuant to Article 14 of the
Development Agreement or the final, non-appealable judgment of a court of competent jurisdiction that Developer failed to achieve such milestone, (ii) the Fund
Member shall have been grossly negligent, engaged in willful misconduct or committed fraud in connection with the management of the Company and its
Subsidiaries or the construction of the Project, or misappropriated Project funds or insurance proceeds, and in the event of any dispute with respect thereto, it
shall have been determined by the Arbiters pursuant to Section 3.10 or the final, non-appealable judgment of a court of competent jurisdiction that the Fund
Member was grossly negligent, engaged in such willful misconduct, committed such fraud or misappropriated such funds or proceeds, as the case may be, or
(iii) an Event of Default occurs and is continuing with respect to the Fund Member (but not any other Person) under Section 10.1(a) or Section 10.1(b), and in
the event of any dispute with respect to any such Event of Default under Section 10.1(b), it shall have been determined by the Arbiters pursuant to Section
3.10 or the final, non-appealable judgment of a court of competent jurisdiction that such Event of Default occurred with respect to the Fund Member (any of the
events described in this clause (iii) or in clause (i) or clause (ii) above, a “Management Change Event”), then, in any such case and subject to compliance by
the Coach Member with the terms and conditions of the Loan Documents and the Project Documents, the Coach Member shall have the right, by written notice
given to the Fund Member (a “Removal Notice”) at any time following the occurrence of such Management Change Event but, in the case of a Management
Change Event described in clause (i) above, prior to the date on which such Major Milestone Event is achieved, to assume the right to make all decisions
affecting the day-to-day operation of the Company’s business and the discretion in the management and control of the business of the Company granted to the
Fund Member hereunder, including, but not limited to, the matters contained in Article 3, subject to and in accordance with the terms of this Agreement. From
and after the delivery by the Coach Member of a Removal Notice, the Coach Member (x) shall be deemed to have all discretion in the management and control
of the business of the Company and its Subsidiaries, and the right to make all decisions affecting the day-to-day operation of the business of the Company
and its Subsidiaries, subject to and in accordance with the terms of this Agreement, (y) will have full power and authority to execute and deliver in the name of
and on behalf of the Company and its Subsidiaries such documents or instruments as the Coach Member deems appropriate for the conduct of the business
of the Company in accordance with this Agreement, the business of Legacy Tenant in accordance with the terms of the Tenant LLC Agreement and the
business of Legacy Mezzanine in accordance with the Mezzanine LLC Agreement, and (z) no Person dealing with the Company or any Subsidiary will be
required to inquire into the authority of the Coach Member to take any action or make any decision. The Coach Member acknowledges and agrees that it shall
have no authority in such capacity to take any action or make any decision in violation of the terms of this Agreement, the Tenant LLC Agreement, the
Mezzanine LLC Agreement, the Loan Documents or the Project Documents, and the Members acknowledge and agree that the assumption of management of
the Company by the Coach Member shall have no effect on the obligations and limitations of the Members to provide funding to the Company or the Project as
provided herein and the Development Agreement.
(b) From and after the delivery by the Coach Member of a Removal Notice in accordance with the terms of Section 7.7(a), the
approval of the Fund Member shall not be required with respect to any Major Decision pursuant to:
(i) clauses (ii), (xviii), (xxiii), (xxvi), (xxvii), (xxx), (xxxi) or (xxxii) of Section 7.2(b);
(ii) clause (i) of Section 7.2(b), provided that a change to the Plans or Construction Documents does not affect in any
material respect the overall design of the Building or the construction of the Building in accordance with a first class standard, is reasonably necessary in
order to achieve Final Completion in accordance with the terms of the Development Agreement, the Loan Documents or the Project Documents, and does not
adversely affect in any material respect the Fund Member Units in any discriminatory manner;
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