Common use of Permitted Transfers of Interests in Borrower Clause in Contracts

Permitted Transfers of Interests in Borrower. Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) in the aggregate of the direct or indirect ownership interests in Borrower; provided that the following conditions are satisfied: (a) no monetary or material non-monetary Default nor any Event of Default shall have occurred and remain outstanding or shall occur solely as a result of such Transfer; (b) such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire control of Borrower, (ii) result in Borrower no longer being controlled by one or more Sponsors, or (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower to an amount which exceeds forty-nine percent (49%) in the aggregate; (c) to the extent the transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer (provided that such transferee did not own 20% or more of the direct or indirect ownership interests in such Borrower as of the Closing Date), Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; (d) after giving effect to such Transfer, (i) one or more Sponsors shall continue to own, directly or indirectly, in the aggregate, at least fifty-one percent (51%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to own, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan; (e) the Property shall continue to be managed by Manager or a Qualified Manager; (f) Borrower shall give Lender notice of such proposed Transfer, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, without limitation, a revised organizational structure chart, that Lender shall reasonably require, not less than ten (10) Business Days prior to the proposed date of such Transfer; (g) the structure of Borrower (including, without limitation, its single purpose nature and bankruptcy remoteness) shall not be adversely affected by such Transfer; and (h) if such Transfer results in Borrower no longer being controlled by Xxxx X. Xxxx, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx in connection with the Loan. In addition, nothing herein shall be deemed to prohibit (w) Transfers of publicly held indirect ownership interests in the Borrower on the New York Stock Exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) of any of his direct or indirect interest in Borrower to (I) any parent, sibling, spouse, child or grandchild (each an “Immediate Family Member”) of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “Swig Family Entity”), provided the foregoing clauses (a), (c), and (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfied, (y) Transfers of any direct or indirect interests in Borrower among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower), provided the foregoing clauses (a), (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s direct or indirect equity interest in Borrower, provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V) as of the date of such Transfer, the transferee (and/or such transferee’s shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial and economic interests in such transferee and (ii) are in control of such transferee, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender). As used in this Section 8.2, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings.

Permitted Transfers of Interests in Borrower. Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s 's consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%490/o) in the aggregate of the direct or indirect ownership interests in BorrowerBorrower (but for the avoidance of doubt, not any of the direct ownership interests in Mortgage Borrower or the Collateral); provided that the following conditions are satisfied: (a) no monetary or material non-monetary Default nor any Event of Default shall have occurred and remain outstanding or shall occur solely as a result of such Transfer; (b) such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire control of Borrower, (ii) result in Borrower no longer being controlled by one or more Sponsors, or (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower to an amount which Whifh exceeds forty-nine percent (49%) in the aggregate; (( c) to the extent the transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer (provided that such transferee did not own 20% or more of the direct or indirect ownership interests in such Borrower as of the Closing Date), Borrower shall deliver, at Borrower’s 's sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; (( d) after giving effect to such Transfer, (i) one or more Sponsors shall continue to own, directly or indirectly, in the aggregate, at least fifty-one percent (51%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to own, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan; (( e) the Property shall continue to be managed by Manager or a Qualified Manager; (f) Borrower shall give Lender notice of such proposed Transfer, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, without limitation, a revised organizational structure chart, that Lender shall reasonably require, not less than ten (10) Business Days prior to the proposed date of such Transfer; (g) the structure of Mortgage Borrower and Borrower (including, without limitation, its their single purpose nature and bankruptcy remoteness) shall not be adversely affected by such Transfer; and (h) if such Transfer results in Borrower no longer being controlled by Xxxx X. Xxxx, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx in connection with the Loan. In addition, nothing herein shall be deemed to prohibit (w) Transfers of publicly held indirect ownership interests in the Borrower on the New York Stock Exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) of any of his direct or indirect interest in Borrower (but for the avoidance of doubt, not any of the direct ownership interests in Mortgage Borrower or the Collateral) to (I) any parent, sibling, spouse, child or grandchild (each an “"Immediate Family Member”") of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “"Swig Family Entity”"), provided the foregoing clauses (a), (c), and (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfied, (y) Transfers of any direct or indirect interests in Borrower (but for the avoidance of doubt, not any of the direct ownership interests in Mortgage Borrower or the Collateral) among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower), provided the foregoing clauses (a), (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s 's direct or indirect equity interest in BorrowerBorrower (but for the avoidance of doubt, not any of the direct ownership interests in Mortgage Borrower or the Collateral), provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V01) as of the date of such Transfer, the transferee (and/or such transferee’s 's shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial and economic interests in such transferee and (ii) are in control of such transferee, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender). ) .. As used in this Section 8.2, the term “"control” " means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “"controlled” " and “"controlling” " shall have correlative meanings.

Permitted Transfers of Interests in Borrower. Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) in the aggregate of the direct or indirect ownership interests in Borrowerany Restricted Party; provided that the following conditions are satisfied: (a) no monetary Default or material non-monetary Default nor any Event of Default shall have occurred and remain outstanding or shall occur solely as a result of such Transfer; , (b) such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire control of Borrowerany Restricted Party, (ii) result in Borrower any Restricted Party no longer being controlled by one or more SponsorsKey Principal, or (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower any Restricted Party to an amount which exceeds forty-nine percent (49%) in the aggregate; , (c) to the extent the transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower any Restricted Party immediately following such Transfer (provided that such transferee Transferee did not own 20% or more of the direct or indirect ownership interests in such Borrower Restricted Party as of the Closing Date), Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; , (d) after giving effect to such Transfer, (i) one or more Sponsors Key Principal shall continue to own, directly or indirectly, in the aggregate, at least fifty-one percent (51%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to owneach Restricted Party, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan; (e) the Property shall continue to be managed by Manager or a Qualified Manager; , (f) Borrower shall give Lender notice of such proposed TransferTransfer request, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, without limitation, a revised organizational structure chart, Documents that Lender shall reasonably require, not less than ten thirty (1030) Business Days days prior to the proposed date of such Transfer; , and (g) the legal and financial structure of Borrower (includingand its stockholders, without limitationpartners or members, its as applicable, and the single purpose nature and bankruptcy remoteness) shall not be adversely affected by such Transfer; and (h) if such Transfer results in Borrower no longer being controlled by Xxxx X. Xxxx, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx in connection with the Loan. In addition, nothing herein shall be deemed to prohibit (w) Transfers remoteness of publicly held indirect ownership interests in the Borrower on the New York Stock Exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) of any of his direct or indirect interest in Borrower to (I) any parent, sibling, spouse, child or grandchild (each an “Immediate Family Member”) of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “Swig Family Entity”), provided the foregoing clauses (a), (c), and (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfiedits stockholders, (y) Transfers of any direct partners or indirect interests in Borrower among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower)members, provided the foregoing clauses (a)as applicable, (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s direct or indirect equity interest in Borrower, provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V) as of the date of after such Transfer, shall satisfy Lender’s the transferee (and/or such transferee’s shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial then current applicable underwriting criteria and economic interests in such transferee and (ii) are in control of such transferee, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender)requirements. As used in this Section 8.2, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings.

Permitted Transfers of Interests in Borrower. Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) in the aggregate Transfers of the direct or indirect ownership interests in Borrowerany Restricted Party; provided that the following conditions are satisfied: (a) no monetary Default or material non-monetary Default nor any Event of Default shall have occurred and remain outstanding or shall occur solely as a result of such Transfer; , (b) such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire control of Borrowerany Restricted Party, (ii) result in Borrower any Restricted Party no longer being controlled by one or more SponsorsMHGC, or (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower any Restricted Party to an amount which exceeds forty-nine percent (49%) in the aggregate; , (c) to the extent the transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower any Restricted Party immediately following such Transfer (provided that such transferee Transferee did not own 20% or more of the direct or indirect ownership interests in such Borrower Restricted Party as of the Closing Date), Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; , (d) after giving effect to such Transfer, (i) one or more Sponsors MHGC shall continue to own, directly or indirectly, in the aggregate, at least fifty-one fifty percent (5150%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to owneach Restricted Party, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan; (e) the Property shall continue to be managed by Manager or a Qualified Manager; , (f) Borrower shall give Lender notice of such proposed TransferTransfer request, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, without limitation, a revised organizational structure chart, Documents that Lender shall reasonably require, not less than ten thirty (1030) Business Days days prior to the proposed date of such Transfer; , and (g) the legal and financial structure of Borrower (includingand its stockholders, without limitationpartners or members, its as applicable, and the single purpose nature and bankruptcy remoteness) shall not be adversely affected by remoteness of Borrower and its stockholders, partners or members, as applicable, after such Transfer; , shall satisfy Lender’s the then current applicable underwriting criteria and (h) if such Transfer results in Borrower no longer being controlled by Xxxx X. Xxxx, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx in connection with the Loanrequirements. In addition, nothing Nothing herein shall be deemed to prohibit (wi) Transfers of publicly held direct or indirect ownership interests in MHGC (including, without limitation, the Borrower on the New York Stock Exchange issuance, conversion, exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) redemption of any of his such ownership interests), or (ii) direct or indirect Transfers of the 2.9% interest in Borrower to (I) any parentGuarantor owned by Residual Hotel Interests, sibling, spouse, child or grandchild (each an “Immediate Family Member”) of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “Swig Family Entity”), provided the foregoing clauses (a), (c), and (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfied, (y) Transfers of any direct or indirect interests in Borrower among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower), provided the foregoing clauses (a), (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s direct or indirect equity interest in Borrower, provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V) LLC as of the date of such Transfer, the transferee (and/or such transferee’s shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial and economic interests in such transferee and (ii) are in control of such transferee, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender)Closing Date. As used in this Section 8.2, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings.

Permitted Transfers of Interests in Borrower. Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) in the aggregate of the direct or indirect ownership interests in Borrower; , provided that the following conditions are satisfied: (a) no monetary or material non-monetary Default nor any Event of Default shall have occurred and remain outstanding or shall occur solely as a result of such Transfer; (b) such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire control of Borrower, (ii) result in Borrower no longer being controlled by one or more Sponsors, or (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower to an amount which exceeds forty-nine percent (49%) in the aggregate; (c) to the extent the transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer (provided that such transferee did not own 20% or more of the direct or indirect ownership interests in such Borrower as of the Closing Datedate), Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; (d) after giving effect to such Transfer, (i) one or more Sponsors shall continue to own, directly or indirectly, in the aggregate, at least fifty-one fifty percent (5150%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to own, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the LoanBorrower; (e) the Property shall continue to be managed by Manager or a Qualified Manager; (f) Borrower shall give Lender notice of such proposed Transfer, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, including without limitation, a revised organizational structure chart, that Lender shall reasonably require, not less than ten (10) Business Days prior to the proposed date of such Transfer; and (g) the structure of Borrower (including, without limitation, its single purpose nature and bankruptcy remoteness) shall not be adversely affected by such Transfer; and (h) if such Transfer results in Borrower no longer being controlled by Xxxx X. Xxxx, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx in connection with the Loan. In addition, notwithstanding anything to the contrary contained herein, nothing herein shall be deemed to prohibit (w) Transfers of publicly held indirect ownership interests in the Borrower on the New York Stock Exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) of any of his direct or indirect interest in Borrower to (I) any parent, sibling, spouse, child or grandchild (each an “Immediate Family Member”) of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “Swig Family Entity”), provided the foregoing clauses (a), (c)prohibit, and (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfied, (y) Transfers no consent of any direct or indirect interests in Borrower among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower), provided the foregoing clauses (a), (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s direct or indirect equity interest in Borrower, provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V) as of the date of such Transfer, the transferee (and/or such transferee’s shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial and economic interests in such transferee and (ii) are in control of such transferee, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender). As used in this Section 8.2, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings.required for:

Permitted Transfers of Interests in Borrower. (a) Notwithstanding anything to the contrary contained in Section 8.1 hereof, Lender’s consent shall not be required in connection with one the following equity Transfers: (i) the sale, Transfer or a series issuance of Transfersshares of common stock in REIT, provided that either (1) such shares of not more than forty-nine percent common stock are listed on the New York Stock Exchange, the NASDAQ Global Select Market or another nationally recognized stock exchange or (49%2) such shares of common stock are sold in the aggregate ordinary course of business and in accordance with all applicable Legal Requirements to retail investors as contemplated by the prospectus dated March 17, 2011 (and amendments #1-7 thereof) filed by REIT with the United Stated Securities and Exchange Commission; (ii) subject to Section 8.2(b) below, a Transfer of direct or indirect equity ownership interests in BorrowerSole Member (each, an “ARCROP Transfer”) or (iii) the creation or issuance of new limited partnership interest by Sole Member; provided that that, with respect to the Transfers listed in clauses (ii) and (iii) above, the following conditions are satisfied: (aA) no monetary or material non-monetary Default nor any Event of Default Lender shall have occurred and remain outstanding or shall occur solely as a result receive not less than thirty (30) days prior written notice of such TransferTransfers, except in connection with any Transfer listed in clause (iii) above and/or any Transfer of shares in REIT in connection with REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws; (bB) subject to subject to Section 8.2(b) below, no such Transfer shall not (i) cause the transferee, together with its Affiliates, to acquire result in a change in control of Sole Member or Guarantor; (C) after giving effect to any such Transfer, Sole Member shall (I) own at least a 51% direct ownership interest in Borrower, (iiII) result in control Borrower no longer being controlled and (III) directly or indirectly control the day-to-day operation of the Property; (D) after giving effect to any such Transfers, the Property shall continue to be managed by one Manager or more SponsorsQualified Manager; (E) the legal and financial structure of Borrower and its members, and the single purpose nature and bankruptcy remoteness of Borrower and its stockholders, partners or members, as applicable, after any such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements; (iii) cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower to an amount which exceeds forty-nine percent (49%F) in the aggregate; (c) to the extent the transferee owns case of any Transfer that results in any Person and its Affiliates owning in excess of twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer (provided that such transferee did not own 20% or more of the direct or indirect equity ownership interests in such Borrower as of the Closing Date)Borrower, Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (OFAC, KYC, credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such transferee and its Affiliates as Lender may reasonably require; (d) after giving effect to such Transfer, (i) one or more Sponsors shall continue to own, directly or indirectly, in the aggregate, at least fifty-one percent (51%) of all legal, beneficial and economic interests in Borrower and (ii) (A) Longwing Incorporated shall continue to own, directly or indirectly, in the aggregate, at least twenty percent (20%) of all legal, beneficial and economic interests in Borrower or (B) the transferee shall have caused a replacement guarantor reasonably acceptable to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan; (e) the Property shall continue to be managed by Manager or a Qualified Manager; (fG) Borrower shall give provide Lender notice of such proposed Transfer, together with copies of all instruments effecting such Transfer and copies of any Organizational Documents, including, without limitation, a revised organizational structure chart, Documents that Lender shall reasonably require, not less than ten thirty (1030) Business Days days prior to the proposed date of such Transfer; , except in connection with any Transfer listed in clause (giii) the structure above and/or any Transfer of Borrower (including, without limitation, its single purpose nature and bankruptcy remoteness) shall not be adversely affected by such Transfershares in REIT in connection with REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws; and (hH) if such Transfer results in Borrower no longer being controlled by Xxxx X. XxxxTransfers shall be conditioned upon Borrower’s ability to, then Longwing Guarantor shall have executed and delivered a new guarantee and environmental indemnity substantially similar after giving effect to the Swig Guaranty and Environmental Indemnity executed and delivered on the date hereof by Xxxx X. Xxxx Transfer in connection with the Loan. In addition, nothing herein shall be deemed to prohibit (w) Transfers of publicly held indirect ownership interests in the Borrower on the New York Stock Exchange or any other nationally recognized stock exchange, provided the foregoing clauses (b) and (d) remain satisfied, (x) Transfers by Xxxx X. Xxxx (by operation of law or otherwise) of any of his direct or indirect interest in Borrower to question (I) any parentremake the representations contained herein relating to ERISA, sibling, spouse, child or grandchild (each an “Immediate Family Member”) of Xxxx X. Xxxx, (II) any trust for the benefit of Xxxx X. Xxxx or any Immediate Family Member of Xxxx X. Xxxx, or (III) any Person (A) 100% of whose issued and outstanding equity interests are directly or indirectly owned in the aggregate by one or more Persons described in the foregoing clauses (I) and/or (II) and (B) that is controlled by one or more Persons described in the foregoing clauses (I) and/or (II) (Xxxx X. Xxxx and any entities set forth in the preceding clauses (I), (II) and (III), each a “Swig Family Entity”), provided the foregoing clauses (a), (c)OFAC, and Patriot Act matters (e) through (g) remain satisfied and either (1) Xxxx X. Xxxx controls and, upon Lender’s request, Borrower or (2) Longwing Incorporated controls Borrower and the foregoing clause (h) remains satisfied, (y) Transfers of any direct or indirect interests in Borrower among the Sponsors (or their subsidiaries having a direct or indirect interest in Borrower), provided the foregoing clauses (a), (c), and (e) through (h) remain satisfied, or (z) Transfers of all of Longwing Incorporated’s direct or indirect equity interest in Borrower, provided (I) the foregoing clauses (a), (b)(i), (b)(ii), (c) and (e) through (g) remain satisfied, (II) one or more Swig Family Entities own twelve and one-half percent (12.5%) or more of the direct or indirect interest in Borrower, (III) the transferee shall have caused a replacement guarantor reasonably acceptable deliver to Lender to execute and deliver a new guarantee substantially similar to the Longwing Guaranty executed and delivered on the date hereof by Longwing Guarantor in connection with the Loan, (IV) neither the transferee nor the replacement guarantor shall have interfered in bad faith with the exercise by any lender of its remedies in connection with a default with respect to any Indebtedness or defaulted under its obligations which caused a foreclosure with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender; and (V) an Officer’s Certificate containing such updated representations effective as of the date of such the consummation of the applicable Transfer, the transferee (and/or such transferee’s shareholders, general partners or managing members that, directly or indirectly, (i) own fifty-one percent (51%) or more of legal, beneficial and economic interests in such transferee and (iiII) are in control of such transfereecontinue to comply with the covenants contained herein relating to ERISA, as of the date of such Transfer), must have an aggregate net worth (exclusive of the Property) OFAC and liquidity reasonably satisfactory to Lender (it being agreed that a net worth of not less than $100,000,000 shall be satisfactory to Lender)Patriot Act matters. As used in this Section 8.2, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings.