OR DELAY OF EITHER PARTY
IN THE EXERCISE OF ANY RIGHT GIVEN TO SUCH PARTY HEREUNDER OR THE WAIVER BY ANY
PARTY OF ANY CONDITION HEREUNDER FOR ITS BENEFIT (UNLESS THE TIME SPECIFIED
HEREIN FOR EXERCISE OF SUCH RIGHT, OR SATISFACTION OF SUCH CONDITION, HAS
EXPIRED) SHALL CONSTITUTE A WAIVER OF ANY OTHER OR FURTHER RIGHT NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT PRECLUDE OTHER OR FURTHER EXERCISE
THEREOF OR ANY OTHER RIGHT.
THE WAIVER OF ANY BREACH HEREUNDER SHALL NOT BE
DEEMED TO BE A WAIVER OF ANY OTHER OR ANY SUBSEQUENT BREACH HEREOF.
31.
ASSIGNMENT.
ASSIGNMENT.
PURCHASER SHALL
NOT HAVE THE RIGHT TO ASSIGN ITS RIGHTS AND OBLIGATIONS HEREUNDER WITHOUT THE
PRIOR WRITTEN CONSENT OF SELLER.
ANY TRANSFERS OF ANY DIRECT OR INDIRECT
BENEFICIAL INTERESTS IN PURCHASER SHALL, FOR PURPOSES OF THIS SECTION 31, BE
DEEMED TO CONSTITUTE AN ASSIGNMENT BY PURCHASER.
NOTWITHSTANDING THE FOREGOING,
THE PURCHASER NAMED HEREIN SHALL HAVE THE ONE-TIME RIGHT TO (A) ASSIGN THIS
AGREEMENT (INCLUDING THE DEPOSIT AND ALL RIGHTS HEREUNDER) TO A CONTROLLED
AFFILIATE (AS DEFINED BELOW), AND/OR (B) COLLATERALLY ASSIGN THIS AGREEMENT TO
ITS MORTGAGE LENDER FINANCING THE LEASE ASSIGNMENT AND/OR THE PROPERTY
PURCHASE.
"CONTROLLED AFFILIATE" SHALL MEAN ANY ENTITY (I) CONTROLLED BY
PURCHASER (OR FLAG LUXURY PROPERTIES, LLC) AND (II) A SIGNIFICANT BENEFICIAL
INTERESTS OF WHICH ARE OWNED, DIRECTLY OR INDIRECTLY, BY PURCHASER (OR FLAG
LUXURY PROPERTIES, LLC) AS OF THE DATE OF THE ASSIGNMENT AND THE CLOSING DATE.
"CONTROLLED BY" MEANS THE POWER AND AUTHORITY (BUT NOT NECESSARILY THE SOLE
POWER AND AUTHORITY) TO PARTICIPATE IN THE DIRECTION OF THE BUSINESS AND AFFAIRS
OF THE ASSIGNEE BY REASON OF THE OWNERSHIP OF A SIGNIFICANT BENEFICIAL INTERESTS
IN SUCH ASSIGNEE.
ANY SUCH ASSIGNMENT SHALL BE EFFECTUATED BY A WRITTEN
INSTRUMENT SUBSTANTIALLY IN THE FORM OF EXHIBIT J HERETO, AND CONDITIONED UPON
PURCHASER DELIVERING TO SELLER NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR TO
CLOSING AN EXECUTED ORIGINAL OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT WHEREIN
THE ASSIGNEE ASSUMES ALL OF THE OBLIGATIONS OF THE PURCHASER NAMED HEREIN
(INCLUDING SPECIFICALLY RESTATING AS TO ITSELF CERTAIN OF PURCHASER'S
REPRESENTATIONS AND WARRANTIES HEREIN) AND PROOF REASONABLY SATISFACTORY TO
SELLER THAT THE ASSIGNEE CONSTITUTES A "CONTROLLED AFFILIATE".
AN ASSIGNMENT OR
TRANSFER OF THIS AGREEMENT SHALL NOT RELIEVE THE PURCHASER NAMED HEREIN OF ANY
OF ITS OBLIGATIONS HEREUNDER WHICH ACCRUED PRIOR TO THE DATE OF SUCH ASSIGNMENT.
32.
HEADINGS.
THE HEADINGS WHICH HAVE BEEN USED
THROUGHOUT THIS AGREEMENT HAVE BEEN INSERTED FOR CONVENIENCE OF REFERENCE ONLY
AND SHOULD NOT BE CONSTRUED IN INTERPRETING THIS AGREEMENT.
WORDS OF ANY GENDER
USED IN THIS AGREEMENT SHALL INCLUDE ANY OTHER GENDER AND WORDS IN THE SINGULAR
SHALL INCLUDE THE PLURAL, AND VICE VERSA, UNLESS THE CONTEXT REQUIRES
OTHERWISE.
THE WORDS "HEREIN," "HEREOF," "HEREUNDER" AND OTHER
31
SIMILAR COMPOUNDS OF THE WORDS "HERE" WHEN USED IN THIS AGREEMENT SHALL REFER TO
THE ENTIRE AGREEMENT AND NOT TO ANY PARTICULAR PROVISION OR SECTION.
AS USED IN
THIS AGREEMENT, THE TERM "BUSINESS DAY" SHALL BE DEEMED TO