100% OF THE
UNENCUMBERED EQUITY INTERESTS IN THE PROPOSED NEW OWNER OF THE PREMISES (THE
"NEW OWNER") MAY ASSUME BORROWER'S OBLIGATIONS HEREUNDER (HEREINAFTER, A
"PROPOSED LOAN ASSUMPTION") OR A TRANSFER OTHERWISE PROHIBITED HEREUNDER SHALL
BE PERMITTED WITHOUT LENDER CONSENT OR APPROVAL PROVIDED THAT EACH OF THE
FOLLOWING TERMS AND CONDITIONS ARE SATISFIED:
(I)
NO EVENT OF DEFAULT IS THEN CONTINUING HEREUNDER OR UNDER ANY OF
THE OTHER LOAN DOCUMENTS;
(II)
LENDER SHALL HAVE, IN ITS REASONABLE DISCRETION, CONSENTED TO THE
PROPOSED LOAN ASSUMPTION;
(III)
BORROWER GIVES LENDER WRITTEN NOTICE OF THE TERMS OF THE PROPOSED
LOAN ASSUMPTION NOT LESS THAN SIXTY (60) DAYS BEFORE THE DATE ON WHICH SUCH
PROPOSED LOAN ASSUMPTION IS SCHEDULED TO CLOSE AND, CONCURRENTLY THEREWITH,
GIVES LENDER ALL SUCH INFORMATION CONCERNING THE NEW BORROWER AND THE NEW OWNER
AS LENDER WOULD REQUIRE IN EVALUATING AN INITIAL EXTENSION OF CREDIT TO A
BORROWER AND LENDER DETERMINES, IN ITS REASONABLE DISCRETION THAT THE NEW
BORROWER AND THE NEW OWNER ARE ACCEPTABLE TO LENDER IN ALL RESPECTS (IT BEING
ACKNOWLEDGED THAT ANY PERMITTED TRANSFEREE SHALL BE DEEMED ACCEPTABLE TO LENDER
PROVIDED THAT NOT MORE THAN 75% IN THE AGGREGATE OF THE DIRECT OR INDIRECT
INTERESTS IN BORROWER (BUT WITHOUT INCLUDING MORE THAN ONCE ONE OR MORE
TRANSFERS OF THE SAME INTEREST) HAS BEEN TRANSFERRED SUBSEQUENT TO THE CLOSING
DATE IN ONE OR MORE TRANSACTIONS AND BORROWER CONTINUES TO BE CONTROLLED BY THE
SAME PERSONS WHICH CONTROLLED BORROWER PRIOR TO SUCH TRANSFER (IT BEING
ACKNOWLEDGED THAT (X) ANY HOLDER OF MORE THAN FORTY PERCENT OF THE DIRECT OR
INDIRECT INTEREST IN BORROWER MAY HAVE VETO RIGHTS OVER MAJOR DECISIONS WHICH
ARE CUSTOMARY IN JOINT VENTURE AGREEMENTS BETWEEN TWO FIFTY PERCENT OWNERS OF A
PERSON AND THE SAME SHALL NOT CONSTITUTE A CHANGE IN CONTROL) AND (Y) IT FURTHER
BEING ACKNOWLEDGED THAT ANY TRANSFER OF A DIRECT OR INDIRECT INTEREST IN MORGANS
GROUP LLC OTHERWISE REQUIRING APPROVAL HEREUNDER SHALL NOT BE SUBJECT TO THE
APPROVAL OF LENDER IF MORGANS GROUP LLC CONTINUES TO OWN AND MANAGE HOTEL ROOMS
LOCATED IN FULL SERVICE LUXURY OR FULL SERVICE UPSCALE PROPERTIES NUMBERING NOT
LESS THAN EIGHTY
19
PERCENT (80%) OF THE NUMBER OF HOTEL ROOMS WHICH IT OWNS AND EIGHTY PERCENT
(80%) OF THE NUMBER OF HOTEL ROOMS IT MANAGES AS OF THE CLOSING DATE (AND SUCH
NUMBERS SHALL BE CALCULATED ON A PRO RATA BASIS, SO THAT, FOR EXAMPLE, IF
MORGANS GROUP LLC HAS A FIFTY PERCENT (50%) INTEREST IN A PERSON THAT OWNS TWO
HUNDRED (200) HOTEL ROOMS, MORGANS GROUP LLC SHALL BE DEEMED TO OWN ONE HUNDRED
(100) HOTEL ROOMS) AND THE CONDITIONS SET FORTH IN CLAUSES (A) AND (B) OF THE
DEFINITION OF PERMITTED TRANSFEREE ARE MET);
(IV)
IN THE EVENT THE APPLICABLE TRANSFER WILL RESULT IN A NEW BORROWER
OWNING THE COLLATERAL, BORROWER PAYS LENDER, CONCURRENTLY WITH THE CLOSING OF
SUCH PROPOSED LOAN ASSUMPTION, A NON-REFUNDABLE ASSUMPTION FEE IN AN AMOUNT
EQUAL TO ONE PERCENT (1%) OF THE THEN OUTSTANDING LOAN AMOUNT (WHICH FEE SHALL
BE WAIVED IN