to make such payment.
5.23
Licenses. Borrower shall not Transfer any License required for the
operation of the Property (other than in connection with a Lender-approved
Transfer and Assumption pursuant to Section 5.26.2 below).
5.24
Compliance with Restrictive Covenants, Etc. Borrower will not enter
into, modify, waive in any material respect or release any Easements,
restrictive covenants or other Permitted Encumbrances, or suffer, consent to or
permit the foregoing, without Lender's prior written consent, which consent may
be granted or denied in Lender's sole discretion.
5.25
ERISA.
5.25.1
BORROWER SHALL NOT 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 DOCUMENTS)
TO BE A NON-EXEMPT (UNDER A STATUTORY OR ADMINISTRATIVE CLASS EXEMPTION)
PROHIBITED TRANSACTION UNDER ERISA.
5.25.2
BORROWER SHALL NOT MAINTAIN, SPONSOR, CONTRIBUTE TO OR BECOME
OBLIGATED TO CONTRIBUTE TO, OR SUFFER OR PERMIT ANY ERISA AFFILIATE OF BORROWER
TO, MAINTAIN, SPONSOR, CONTRIBUTE TO OR BECOME OBLIGATED TO CONTRIBUTE TO, ANY
PLAN OR ANY WELFARE PLAN OR PERMIT THE ASSETS OF BORROWER TO BECOME "PLAN
ASSETS," WHETHER BY OPERATION OF LAW OR UNDER REGULATIONS PROMULGATED UNDER
ERISA.
5.25.3
BORROWER SHALL DELIVER TO LENDER SUCH CERTIFICATIONS OR OTHER
EVIDENCE FROM TIME TO TIME THROUGHOUT THE TERM, AS REQUESTED BY LENDER IN ITS
SOLE DISCRETION, THAT (A) BORROWER IS NOT AND DOES NOT MAINTAIN 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(3) OF ERISA;
(B) BORROWER IS NOT 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:
(1)
EQUITY INTERESTS IN BORROWER ARE PUBLICLY OFFERED SECURITIES, WITHIN THE
MEANING OF 29 C.F.R. §2510.3-101(B)(2);
(2)
LESS THAN TWENTY FIVE PERCENT (25%) OF EACH OUTSTANDING CLASS OF EQUITY
INTERESTS IN BORROWER ARE HELD BY "BENEFIT PLAN INVESTORS" WITHIN THE MEANING OF
29 C.F.R. §2510.3-101(F)(2); OR
50
(3)
BORROWER 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).
5.26
Transfers.
5.26.1
Generally. Borrower shall not directly or indirectly make, suffer or
permit the occurrence of (a) any Transfer other than a Permitted Transfer, or
(b) any event, or series of events, that results in the individuals who, as of
the date of this Agreement, are members of the Board of Directors of the
Behringer Harvard REIT (the "Incumbent Board") ceasing for any reason to
constitute at least a majority of such Board of Directors, provided, however,
that if the election, or nomination for election by the Behringer Harvard REIT's
shareholders, of any new director was approved by a vote of at least a majority
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered as a member of the Incumbent Board.
5.26.2
TRANSFER AND