ENCUMBERING ALL OR A
PART OF THE PROPERTY AND (II) PAY CERTAIN TRANSACTION COSTS INCURRED BY BORROWER
IN CONNECTION WITH THE LOAN.
NO PORTION OF THE PROCEEDS OF THE LOAN WILL BE
USED FOR FAMILY, PERSONAL, AGRICULTURAL OR HOUSEHOLD USE.
(R)
TAX FILINGS.
BORROWER, SPE PLEDGOR AND, IF APPLICABLE, EACH
GENERAL PARTNER, HAVE FILED ALL FEDERAL, STATE AND LOCAL TAX RETURNS REQUIRED TO
BE FILED AND HAVE PAID OR MADE ADEQUATE PROVISION FOR THE PAYMENT OF ALL
FEDERAL, STATE AND LOCAL TAXES, CHARGES AND ASSESSMENTS PAYABLE BY BORROWER, SPE
PLEDGOR AND, IF APPLICABLE, THE GENERAL PARTNERS.
BORROWER, SPE PLEDGOR AND, IF
APPLICABLE, THE GENERAL PARTNERS, BELIEVE THAT THEIR RESPECTIVE TAX RETURNS
PROPERLY REFLECT THE INCOME AND TAXES OF BORROWER, SPE PLEDGOR AND SAID GENERAL
PARTNER, IF ANY, FOR THE PERIODS COVERED THEREBY, SUBJECT ONLY TO REASONABLE
ADJUSTMENTS REQUIRED BY THE INTERNAL REVENUE SERVICE OR OTHER APPLICABLE TAX
AUTHORITY UPON AUDIT.
(S)
NOT FOREIGN PERSON.
BORROWER IS NOT A "FOREIGN PERSON" WITHIN THE
MEANING OF §1445(F)(3) OF THE CODE.
(T)
ERISA.
(I) THE ASSETS OF BORROWER AND GUARANTOR ARE NOT AND WILL
NOT BECOME TREATED AS "PLAN ASSETS", WHETHER BY OPERATION OF LAW OR UNDER
REGULATIONS PROMULGATED UNDER ERISA.
IF ANY PERSON HAVING A LEGAL OR BENEFICIAL
OWNERSHIP INTEREST IN BORROWER IS USING (OR IS DEEMED UNDER ERISA TO BE USING)
"PLAN ASSETS", BORROWER WILL QUALIFY AS A "REAL ESTATE OPERATING COMPANY" WITHIN
THE MEANING OF 29 C.F.R. §2510.3-101(E) AT ALL TIMES THAT THE LOAN IS
OUTSTANDING.
EACH PLAN AND WELFARE PLAN, AND, TO THE KNOWLEDGE OF BORROWER,
EACH MULTIEMPLOYER PLAN, IS IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH, AND HAS
BEEN ADMINISTERED IN ALL MATERIAL RESPECTS IN COMPLIANCE WITH, ITS TERMS AND THE
APPLICABLE PROVISIONS OF ERISA, THE CODE AND ANY OTHER APPLICABLE LEGAL
REQUIREMENT, AND NO EVENT OR CONDITION HAS OCCURRED AND IS
38
CONTINUING AS TO WHICH BORROWER WOULD BE UNDER AN OBLIGATION TO FURNISH A REPORT
TO LENDER UNDER CLAUSE (II)(A) OF THIS SECTION.
OTHER THAN AN APPLICATION FOR A
FAVORABLE DETERMINATION LETTER WITH RESPECT TO A PLAN, THERE ARE NO PENDING
ISSUES OR CLAIMS BEFORE THE INTERNAL REVENUE SERVICE, THE UNITED STATES
DEPARTMENT OF LABOR OR ANY COURT OF COMPETENT JURISDICTION RELATED TO ANY PLAN
OR WELFARE PLAN UNDER WHICH BORROWER, GUARANTOR OR ANY ERISA AFFILIATE, DIRECTLY
OR INDIRECTLY (THROUGH AN INDEMNIFICATION AGREEMENT OR OTHERWISE), COULD BE
SUBJECT TO ANY MATERIAL RISK OF LIABILITY UNDER SECTION 409 OR 502(I) OF ERISA
OR SECTION 4975 OF THE CODE.
NO WELFARE PLAN, OTHER THAN A MULTIEMPLOYER PLAN,
PROVIDES OR WILL PROVIDE BENEFITS, INCLUDING, WITHOUT LIMITATION, DEATH OR
MEDICAL BENEFITS (WHETHER OR NOT INSURED) WITH RESPECT TO ANY CURRENT OR FORMER
EMPLOYEE OF BORROWER, GUARANTOR OR ANY ERISA AFFILIATE BEYOND HIS OR HER
RETIREMENT OR OTHER TERMINATION OF SERVICE OTHER THAN (A) COVERAGE MANDATED BY
APPLICABLE LAW, (B) DEATH OR DISABILITY BENEFITS THAT HAVE BEEN FULLY PROVIDED
FOR BY FULLY PAID UP INSURANCE OR (C) SEVERANCE BENEFITS.
(II)
BORROWER WILL FURNISH TO LENDER AS SOON AS POSSIBLE, AND