Inst 2001161041 - Laserfiche WebLink

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In any event, the Agency shall have no obligation to maximize interest or earnings on the Conforming Restaurant Amount. If the Conforming Restaurant Amount is paid in cash to the Agency, the Agency may commingle such moneys with other funds of the Agency. The Agency shall not owe any fiduciary duties to the Developer, and the moneys deposited in the name of the Agency or paid to the Agency as the Conforming Restaurant Amount are not held in trust for the Developer. The parties agree and acknowledge that the variation in amount of the Purchase Price based upon the development and opening of a Conforming Restaurant Facility is reasonable, and is based upon such factors as: (i) the policy objective of the Agency to encourage the development and opening of a Conforming Restaurant Facility; (ii) the circumstance that greater costs for tenant improvements may be incurred by the Developer in the event a Conforming Restaurant Facility is developed and opens; (iii) the circumstance that greater rental income is expected to be derived by the Developer in the event no Conforming Restaurant Facility is developed and opened on the • Property, thereby justifying a substantial difference in the price that should be paid by Developer in consideration of the Property and the development opportunity afforded in respect thereto by this Agreement. ARTICLE FIVE: CHANGES IN DEVELOPER 5.01 Identity of Developer. • The Developer is a limited liability company with David C. Inner ( "Controlling • Member") as its Managing Member. By signing below on behalf of the Developer, David C. Irmer represents and warrants that he holds a controlling interest in the Developer. This representation and warranty shall be deemed to be an ongoing representation and warranty until the issuance by Agency of the Certificate of Completion for the Developer Improvements. 5.02 Changes Only Pursuant To This Agreement. The qualifications, experience and expertise of Developer and its Controlling Member is of particular concern to the Agency. It is because of these qualifications, experience and expertise that the Agency has entered into this Agreement. No voluntary or involuntary successor in interest to Developer shall acquire any rights or powers under this Agreement, except as hereinafter provided. 5.03 Prohibition Against Transfer of Property and Assignment of Agreement. After the execution of this Agreement and until the date of issuance of a Certificate of Completion for all of the Developer Improvements, the Developer shall not voluntarily or involuntarily make or attempt any total or partial sale, transfer, conveyance, assignment or lease ("Transfer") of the whole or any part of the Property or the buildings or structures thereon or this Agreement; except as set forth in Section 5.04, except for the death or incapacitation of the Developer's Controlling Member. This prohibition shall not be deemed to prevent the granting of temporary easements or permits to facilitate development or the dedication of Property required pursuant to this Agreement. , If the Developer's Controlling Member dies or is incapacitated prior to the issuance of a Certificate of Completion for all of the Developer Improvements, Developer may transfer the 27 D005OC1746041 v4\24258.0002