THAT IS A DIRECT
OR INDIRECT EQUITY INTEREST HOLDER IN BORROWER, SO LONG AS THE EQUITY INTERESTS
IN SUCH ENTITY ARE TRADED ON A NATIONALLY RECOGNIZED EXCHANGE.
IF SUCH ENTITY'S
EQUITY INTERESTS ARE NO LONGER LISTED ON A NATIONALLY RECOGNIZED EXCHANGE (IT
BEING UNDERSTOOD THAT ANY TRANSACTION OR SERIES OF TRANSACTIONS THAT RESULT IN
THE DELISTING OF THE SHARES OF SUCH ENTITY SHALL NOT BE A PERMITTED TRANSFER)
ANY TRANSFER OF DIRECT OR INDIRECT EQUITY INTERESTS IN SUCH ENTITY SHALL BE A
PERMITTED TRANSFER IF SUCH TRANSFER DOES NOT, INDIVIDUALLY OR IN THE AGGREGATE
WITH OTHER SUCH PRIOR TRANSFERS, RESULT IN A CHANGE OF CONTROL OF BORROWER OR
EITHER MEMBER;
(II)
ANY TRANSFER PERMITTED BY SECTION 8.01(B) OF THE OPERATING
AGREEMENT, SECTION 5.06(D)(3), SECTION 8.02(A) AND SECTION 8.02(B)(II) OF THE FC
OPERATING AGREEMENT, AND ANY TRANSFER OCCURRING AS A RESULT OF THE EXERCISE OF
ANY REMEDIES BY THE EXTENSION LOAN LENDER UNDER THE EXTENSION LOAN DOCUMENTS.
NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, (A) TRANSFERS PERMITTED BY
THE RECOGNITION AGREEMENTS WHICH ARE NOT OTHERWISE PERMITTED TRANSFERS HEREUNDER
SHALL NOT BE PERMITTED TRANSFERS, AND (B) TRANSFERS PERMITTED BY SECTION
5.06(D)(3) OF THE FC OPERATING AGREEMENT SHALL ONLY BE A PERMITTED TRANSFER AS
LONG AS ING MEMBER IS THE OWNER OF THE MEZZANINE LOAN (AS DEFINED IN THE FC
OPERATING AGREEMENT) AND ING MEMBER IS CONTROLLED BY ING.
100
BORROWER ACKNOWLEDGES AND CONFIRMS THAT TRANSFERS PERMITTED BY THE CONDOMINIUM
DOCUMENTS WHICH ARE NOT OTHERWISE PERMITTED TRANSFERS HEREUNDER SHALL NOT BE
PERMITTED TRANSFERS;
(III)
ANY TRANSFER (INCLUDING, WITHOUT LIMITATION, A TRANSFER THAT
RESULTS FROM THE FORECLOSURE BY A MEMBER OF ANOTHER MEMBER'S MEMBERSHIP
INTERESTS IN BORROWER) OF INTERESTS BETWEEN THE MEMBERS;
(IV)
SIMULTANEOUSLY WITH THE RELEASE OF ANY UNIT PURSUANT TO
SECTION 7.46 HEREOF OR THE REDEMPTION OF THE FC UNITS IN ACCORDANCE WITH
SECTION 7.50 HEREOF, THE REDEMPTION OF THE INTEREST IN BORROWER HELD BY THE
APPLICABLE MEMBER; AND
(V)
ANY TRANSFER OF INTERESTS IN FC MEMBER BY ING MEMBER TO FC 41ST
STREET.
Notwithstanding the foregoing, a Permitted Transfer may occur only if (y) Agent
shall be provided with at least ten (10) Business Days prior notice of such
Transfer, together with all information reasonably requested by Agent with
respect to such Transfer, and a diagram showing the structure of the affected
entities after the contemplated Transfer and a list of the names, types of
interests and percentages of ownership of all owners of interests in the
applicable entities after the contemplated Transfer; and (z) all reasonable,
third-party out-of-pocket fees and costs incurred by Agent in connection with
the review of such Transfer to determine whether it is a Permitted Transfer or
to obtain the consent of Agent if required, including, without limitation,
attorneys' fees and disbursements, shall be paid by Borrower.
(C)
BORROWER ACKNOWLEDGES THAT AGENT AND LENDERS (I) HAVE EXAMINED AND
RELIED ON THE CREDITWORTHINESS AND EXPERIENCE OF THE BORROWER ENTITIES IN OWNING
AND OPERATING PROPERTIES SUCH AS THE MORTGAGED PROPERTY IN AGREEING TO MAKE THE
BUILDING LOAN, (II) SUBJECT