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41 <br /> <br />Developer, taking all transfers into account on a cumulative basis; provided however, neither the <br />admission of investor limited partners, nor the transfer of beneficial or ownership interests by an <br />investor limited partner to subsequent limited partners shall be restricted by this provision, nor <br />shall the admission of a Passive Investor Member nor the transfer of a beneficial or ownership <br />interest by a Passive Investor Member to another Passive Investor Member be restricted by this <br />provision. “Passive Investor Member” means a member who pursuant to Developer’s operating <br />agreement is not authorized to actively manage or otherwise operate the business of the <br />company. <br />7.1.4 Transfer to Affiliates. Notwithstanding anything to the contrary contained <br />in this Section 7.1, Developer may Transfer, in whole or in part, the Property, the Project, or this <br />Agreement to any “Affiliate” of Developer, without the prior written approval of City. As used <br />herein, the term “Affiliate” means, with respect to Developer, (a) any person or entity who, <br />directly or indirectly through one or more intermediaries, controls, is controlled by or is under <br />common control with Developer, or (b) any individual or entity in which Developer has a 50.1% <br />or more beneficial interest. A person or entity shall be deemed to control a person or entity if it <br />has the power to direct the management, operations or business of such person or entity. The <br />term “beneficial owner” is to be determined in accordance with Rule 13d promulgated by the <br />Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. <br />7.2. Release upon Transfer. <br />Upon the Transfer of Developer’s rights and interests under this Agreement pursuant to <br />Section 7.1, Developer shall automatically be released from its obligations and liabilities under <br />this Agreement with respect to that portion of the Property transferred, and any subsequent <br />default or breach with respect to the Transferred rights and/or obligations shall not constitute a <br />default or breach with respect to the retained rights and/or obligations under this Agreement, <br />provided that (i) City has consented to the Transfer, and (ii) the transferee executes and delivers <br />to City an assignment and assumption agreement in accordance with Section 7.1.2 hereof. Upon <br />any transfer of any portion of the Property and the express assumption of Developer’s <br />obligations under this Agreement by such transferee, City agrees to look solely to the transferee <br />for compliance by such transferee with the provisions of this Agreement as such provisions relate <br />to the portion of the Property acquired by such transferee. A default by any transferee shall only <br />affect that portion of the Property owned by such transferee and shall not cancel or diminish in <br />any way Developer’s rights hereunder with respect to any portion of the Property not owned by <br />such transferee. The transferor and the transferee shall each be solely responsible for the <br />reporting and annual review requirements relating to the portion of the Property owned by such <br />transferor/transferee, and any amendment to this Agreement between City and a transferor or a <br />transferee shall only affect the portion of the Property owned by such transferor or transferee. <br />Failure to deliver a written assumption agreement hereunder shall not affect the running of any <br />covenants herein with the land, as provided in Section 7.3 below, nor shall such failure negate, <br />modify or otherwise affect the liability of any transferee pursuant to the provisions of this <br />Agreement.