LOAN OR OF ANY OBLIGATION, OR RIGHT
HEREUNDER, NO LOAN PARTY SHALL BE A PLAN AND NONE OF THE ASSETS OF ANY LOAN
PARTY SHALL CONSTITUTE PLAN ASSETS.
(B)
BORROWER FURTHER COVENANTS AND AGREES TO DELIVER TO LENDER SUCH
CERTIFICATIONS OR OTHER EVIDENCE FROM TIME TO TIME THROUGHOUT THE TERM OF THE
LOAN AS MAY BE REQUESTED BY LENDER, AND REPRESENTS AND COVENANTS THAT (A) NO
LOAN PARTY IS AN "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF ERISA,
WHICH IS SUBJECT TO TITLE I OF ERISA, OR A "GOVERNMENTAL PLAN" WITHIN THE
MEANING OF SECTION 3(32) OF ERISA; (B) NO LOAN PARTY IS SUBJECT TO STATE
STATUTES REGULATING INVESTMENTS AND FIDUCIARY OBLIGATIONS WITH RESPECT TO
GOVERNMENTAL PLANS; AND (C) ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES IS TRUE:
(I)
EQUITY INTERESTS SUCH LOAN PARTY ARE PUBLICLY OFFERED SECURITIES,
WITHIN THE MEANING OF 29 C.F.R. §2510.3-
101(B)(2);
93
(II)
LESS THAN TWENTY FIVE PERCENT (25%) OF EACH OUTSTANDING CLASS OF
EQUITY INTERESTS SUCH LOAN PARTY ARE HELD BY "BENEFIT PLAN INVESTORS" WITHIN THE
MEANING OF 29 C.F.R. §2510.3-101(F)(2); OR
(III)
SUCH LOAN PARTY QUALIFIES AS AN "OPERATING COMPANY" OR A "REAL
ESTATE OPERATING COMPANY" WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(C) OR (E).
5.2.9
Affiliate Transactions.
(A)
BORROWER SHALL NOT ENTER INTO, OR BE A PARTY TO, ANY TRANSACTION
WITH AN AFFILIATE OF BORROWER, PRINCIPAL OR ANY OF THE PARTNERS OF BORROWER OR
PRINCIPAL EXCEPT IN THE ORDINARY COURSE OF BUSINESS AND ON TERMS WHICH ARE FULLY
DISCLOSED TO LENDER IN ADVANCE AND ARE SUBSTANTIALLY SIMILAR TO THOSE THAT WOULD
BE OBTAINED IN A COMPARABLE ARM'S-LENGTH TRANSACTION (TAKING INTO ACCOUNT THE
RELATIVE STANDARDS FOR QUALITY AND REPUTATION OF THE PARTY RENDERING THE
SERVICE) WITH AN UNRELATED THIRD PARTY. LENDER ACKNOWLEDGES THAT IT HAS APPROVED
THE MANAGEMENT AGREEMENT.
(B)
ANY CONTRACTS OR AGREEMENTS RELATING TO THE PROPERTY, THE
COLLATERAL OR ANY MORTGAGE PRINCIPAL'S GENERAL PARTNER INTEREST IN THE RELATED
MORTGAGE BORROWER ENTITY IN ANY MANNER BETWEEN OR AMONG ANY LOAN PARTIES OR
THEIR AFFILIATES, INCLUDING THE MANAGEMENT AGREEMENT AND ANY OTHER AGREEMENT
SPECIFICALLY RELATED TO THE PROPERTY, THE COLLATERAL, ANY MORTGAGE PRINCIPAL'S
GENERAL PARTNER INTEREST IN THE RELATED MORTGAGE BORROWER ENTITY OR ANY LOAN
PARTY (COLLECTIVELY, THE "AFFILIATE AGREEMENTS") SHALL BE MADE ON AN
ARM'S-LENGTH BASIS (TAKING INTO ACCOUNT DIFFERENCES IN THE QUALITY OR STANDARDS
OF GOODS OR SERVICES PROVIDED); AND THE PARTIES TO EACH AFFILIATE AGREEMENT
SHALL ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT NOT PROHIBITED UNDER THE
MORTGAGE LOAN DOCUMENTS, ANY SUCH AGREEMENT (OTHER THAN THE MANAGEMENT
AGREEMENT, AS TO WHICH THE PROVISIONS OF THE AGREEMENT REGARDING MANAGEMENT
AGREEMENT AND SECTION 5.1.18 HEREOF SHALL BE APPLICABLE) SHALL BE TERMINABLE BY
MORTGAGE BORROWER OR LENDER WITHIN TEN (10) DAYS AFTER NOTICE, WITHOUT THE
PAYMENT OF ANY FEE, PENALTY, PREMIUM OR LIABILITY FOR FUTURE LIABILITIES OR
OBLIGATIONS, IF AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING. TO
THE EXTENT NOT PROHIBITED UNDER THE MORTGAGE LOAN DOCUMENTS, UPON THE OCCURRENCE
AND DURING THE CONTINUATION OF AN EVENT OF