AS
SET FORTH IN SECTION 4.1.28 HEREOF WITHOUT THE CONSENT OF LENDER, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD.
UPON LENDER'S REQUEST, BORROWERS SHALL
EXECUTE AND DELIVER ADDITIONAL FINANCING STATEMENTS, SECURITY AGREEMENTS AND
OTHER INSTRUMENTS WHICH MAY BE NECESSARY TO EFFECTIVELY EVIDENCE OR PERFECT
LENDER'S SECURITY INTEREST IN THE PROPERTIES AND/OR THE IP AS A RESULT OF SUCH
CHANGE OF PRINCIPAL PLACE OF BUSINESS OR PLACE OF ORGANIZATION.
5.2.9
ERISA.
(A) ASSUMING THAT LENDER IS NOT, AND IS NOT
LENDING THE ASSETS OF, AN "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF
ERISA, NO BORROWER SHALL ENGAGE IN ANY TRANSACTION WHICH WOULD CAUSE ANY
OBLIGATION, OR ACTION TAKEN OR TO BE TAKEN, HEREUNDER (OR THE EXERCISE BY LENDER
OF ANY OF ITS RIGHTS UNDER THE NOTE, THIS AGREEMENT OR THE OTHER LOAN
178
DOCUMENTS) TO BE A NON-EXEMPT (UNDER A STATUTORY OR ADMINISTRATIVE CLASS
EXEMPTION) PROHIBITED TRANSACTION UNDER ERISA.
(B)
EACH BORROWER SHALL DELIVER TO LENDER SUCH
CERTIFICATIONS OR OTHER EVIDENCE FROM TIME TO TIME THROUGHOUT THE TERM OF THE
LOAN, AS REQUESTED BY LENDER IN ITS REASONABLE DISCRETION, THAT (I) SUCH
BORROWER IS NOT 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; (II) NONE OF THE ASSETS OF SUCH BORROWER
CONSTITUTE "PLAN ASSETS" WITHIN THE MEANING OF SECTION 3(3) OF ERISA FOR
PURPOSES OF ANY STATE LAW PROVISIONS REGULATING INVESTMENTS OF, OR FIDUCIARY
OBLIGATIONS WITH RESPECT TO, GOVERNMENTAL PLANS; AND (III) ONE OR MORE OF THE
FOLLOWING CIRCUMSTANCES IS TRUE:
(A)
EQUITY INTERESTS IN SUCH BORROWER ARE PUBLICLY
OFFERED SECURITIES, WITHIN THE MEANING OF 29 C.F.R. §2510.3 101(B)(2);
(B)
LESS THAN TWENTY FIVE PERCENT (25%) OF EACH
OUTSTANDING CLASS OF EQUITY INTERESTS IN SUCH BORROWER IS HELD BY "BENEFIT PLAN
INVESTORS" WITHIN THE MEANING OF 29 C.F.R. §2510.3 101(F)(2); OR
(C)
SUCH BORROWER QUALIFIES AS AN "OPERATING
COMPANY", A "VENTURE CAPITAL OPERATING COMPANY" OR A "REAL ESTATE OPERATING
COMPANY" WITHIN THE MEANING OF 29 C.F.R. §2510.3 101(C), (D) OR (E).
5.2.10
TRANSFERS.
(A) BORROWERS ACKNOWLEDGE THAT LENDER HAS
EXAMINED AND RELIED ON THE EXPERIENCE OF BORROWERS AND THEIR GENERAL PARTNERS,
MEMBERS, PRINCIPALS AND (IF ANY BORROWER IS A TRUST) BENEFICIAL OWNERS, AS
APPLICABLE, IN OWNING AND OPERATING PROPERTIES SUCH AS THE PROPERTIES AND IN
OWNING INTELLECTUAL PROPERTY SUCH AS THE IP, IN AGREEING TO MAKE THE LOAN, AND
WILL CONTINUE TO RELY ON BORROWERS' OWNERSHIP OF THE PROPERTIES AND THE IP AS A
MEANS OF MAINTAINING THE VALUE OF THE PROPERTIES AND THE IP AS SECURITY FOR
REPAYMENT OF THE DEBT AND THE PERFORMANCE OF THE OBLIGATIONS CONTAINED IN THE
LOAN DOCUMENTS.
BORROWERS ACKNOWLEDGE THAT LENDER HAS A VALID INTEREST IN
MAINTAINING THE VALUE OF THE PROPERTIES AND THE IP SO AS TO ENSURE THAT, SHOULD
BORROWERS DEFAULT IN THE REPAYMENT OF THE DEBT OR THE PERFORMANCE OF THE
OBLIGATIONS CONTAINED IN THE LOAN DOCUMENTS, LENDER CAN RECOVER THE DEBT BY A
SALE OF