LAND.
BORROWER SHALL NOT
INITIATE, JOIN IN, OR CONSENT TO ANY CHANGE IN ANY PRIVATE RESTRICTIVE COVENANT,
ZONING LAW OR OTHER PUBLIC OR PRIVATE RESTRICTION, LIMITING OR DEFINING THE USES
WHICH MAY BE MADE OF ANY MORTGAGED PROPERTY OR ANY PART THEREOF WITHOUT THE
WRITTEN CONSENT OF LENDER WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED.
IF UNDER APPLICABLE ZONING PROVISIONS THE USE OF ALL OR ANY PORTION OF
THE MORTGAGED PROPERTY IS OR SHALL BECOME A NONCONFORMING USE, BORROWER WILL NOT
CAUSE OR PERMIT SUCH NONCONFORMING USE TO BE DISCONTINUED OR ABANDONED IF SUCH
DISCONTINUANCE OF ABANDONMENT WOULD CAUSE SUCH NONCONFORMING USE TO NO LONGER BE
PERMITTED WITHOUT THE EXPRESS WRITTEN CONSENT OF LENDER WHICH CONSENT SHALL NOT
BE UNREASONABLY WITHHELD OR DELAYED.
BORROWER SHALL NOT (I) CHANGE THE USE OF
ANY OF THE LAND OR IMPROVEMENTS IN ANY MATERIAL RESPECT, (II) PERMIT OR SUFFER
TO OCCUR ANY WASTE ON OR TO ANY MORTGAGED PROPERTY OR TO ANY PORTION THEREOF OR
(III) TAKE ANY STEPS WHATSOEVER TO CONVERT ANY MORTGAGED PROPERTY, OR ANY
PORTION THEREOF, TO A CONDOMINIUM OR COOPERATIVE FORM OF MANAGEMENT.
(BB)
QUALIFIED INTEREST RATE CAP PROVIDER.
(I)
IN CONNECTION WITH THE EXERCISE OF AN EXTENSION OPTION, BORROWER SHALL
PROVIDE TO LENDER (1) THE MATERIAL TERMS OF ANY INTEREST RATE CAP AGREEMENT
WHICH BORROWER PROPOSES ENTERING INTO PURSUANT TO THIS AGREEMENT WITH A
COUNTERPARTY OTHER THAN AN AFFILIATE OF LENDER AND (2) UNTIL THE CLOSE OF
BUSINESS ON THE BUSINESS DAY ON WHICH SUCH MATERIAL TERMS ARE RECEIVED THE
OPPORTUNITY TO OFFER TO BORROWER AN INTEREST RATE CAP AGREEMENT ON THE SAME OR
BETTER TERMS AS THE
83
TERMS OFFERED TO BORROWER BY SUCH OTHER COUNTERPARTY.
IN THE EVENT THAT LENDER
OR ANY OF ITS AFFILIATES SHALL OFFER TO BORROWER AN INTEREST RATE CAP AGREEMENT
WITH THE SAME OR BETTER TERMS AS THE TERMS OFFERED TO BORROWER BY SUCH THIRD
PARTY COUNTERPARTY, BORROWER SHALL ENTER INTO SUCH INTEREST RATE CAP AGREEMENT
WITH LENDER OR ITS AFFILIATE, AS THE CASE MAY BE.
(II)
IF THE RATING OF A QUALIFIED INTEREST RATE CAP PROVIDER THAT HAS PROVIDED
AN INTEREST RATE CAP WHICH BORROWER PLEDGES TO LENDER PURSUANT TO THE COLLATERAL
ASSIGNMENT OF HEDGE FALLS BELOW THE RATING CRITERIA SPECIFIED IN THE DEFINITION
OF A QUALIFIED INTEREST RATE CAP PROVIDER, THEN WITHIN TEN (10) BUSINESS DAYS
FOLLOWING WRITTEN REQUEST FROM LENDER, BORROWER SHALL DELIVER OR CAUSE THE
ORIGINAL RATE CAP PROVIDER TO DELIVER TO LENDER A REPLACEMENT INTEREST RATE CAP
SATISFYING ALL OF THE CRITERIA SET FORTH IN SECTION 3.1(C) (IF SUCH RATINGS
DOWNGRADE OCCURS PRIOR TO THE ORIGINAL MATURITY DATE) OR 2.17 (IF SUCH RATINGS
DOWNGRADE OCCURS PRIOR TO THE ORIGINAL MATURITY DATE), AS APPLICABLE.
(CC)
PROHIBITED PERSONS.
BORROWER COVENANTS AND AGREES TO DELIVER (FROM
TIME TO TIME) TO LENDER ANY CERTIFICATION OR OTHER EVIDENCE AS MAY BE REQUESTED
BY LENDER IN ITS SOLE AND ABSOLUTE DISCRETION, CONFIRMING THAT: (I) NEITHER
BORROWER, MEMBER, GENERAL PARTNER, GUARANTOR NOR THEIR RESPECTIVE OFFICERS,
DIRECTORS, PARTNERS, MEMBERS OR MAJORITY-OWNED AFFILIATES IS