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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. Irmer ("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 fifth anniversary of the date of issuance of the Certificate of Completion for the Phase 1 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 for five (5) years from the date of issuance of a Certificate of Completion, 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 during the five (5) years referenced in the preceding paragraph, Developer may transfer the Property, however, the Agency must first approve any proposed transferee. The proposed transferee shall have the qualifications and financial responsibility necessary and adequate as may be reasonably determined by the Agency to fulfill the obligations undertaken in this Agreement by the Developer. Any transferee, by instrument in writing satisfactory to the Agency and in form recordable among the land records, for itself and its successors and assigns, and for the benefit of the Agency shall expressly assume all of the obligations of the Developer under this Agreement relating to the Property (including without limitation the License Agreement) and agree to be subject to all the conditions, covenants and restrictions to which the Developer is subject to, including but not limited to the operating covenant of Section 4.06 of this Agreement. There shall be submitted to the Agency for review all instruments and other legal documents proposed to effect any such Transfer; and if approved by the Agency its approval shall be indicated to the Developer in writing. The Agency's approval shall not be unreasonably withheld. 19 DOCS00701700v6\24258.0001 ` �a h4 .�