PARTICIPATE IN ACTIVITIES OTHER THAN THE CONTINUANCE
OF ITS PRESENT BUSINESS.
NOTHING CONTAINED IN THIS SECTION 5.2.4 IS INTENDED TO
EXPAND THE RIGHTS OF BORROWER CONTAINED IN SECTION 5.2.10(D) HEREOF.
5.2.5
DEBT CANCELLATION.
BORROWER SHALL NOT CANCEL OR OTHERWISE FORGIVE
OR RELEASE ANY CLAIM OR DEBT (OTHER THAN TERMINATION OF LEASES IN ACCORDANCE
HEREWITH) OWED TO BORROWER BY ANY PERSON, EXCEPT FOR ADEQUATE CONSIDERATION AND
IN THE ORDINARY COURSE OF BORROWER'S BUSINESS.
5.2.6
ZONING.
BORROWER SHALL NOT INITIATE OR CONSENT TO ANY ZONING
RECLASSIFICATION OF ANY PORTION OF THE PROPERTY OR SEEK ANY VARIANCE UNDER ANY
EXISTING ZONING ORDINANCE OR USE OR PERMIT THE USE OF ANY PORTION OF THE
PROPERTY IN ANY MANNER THAT COULD RESULT IN SUCH USE BECOMING A NON-CONFORMING
USE UNDER ANY ZONING ORDINANCE OR ANY OTHER APPLICABLE LAND USE LAW, RULE OR
REGULATION, WITHOUT THE PRIOR CONSENT OF LENDER.
5.2.7
INTENTIONALLY OMITTED.
5.2.8
INTENTIONALLY OMITTED.
56
5.2.9
ERISA.
(A) 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.
(B)
DURING THE TERM OF THE LOAN OR ANY OBLIGATION OR RIGHT HEREUNDER,
BORROWER
SHALL NOT BE A PLAN AND NONE OF THE ASSETS OF BORROWER SHALL
CONSTITUTE OF A PLAN WITHIN THE MEANING OF SECTION 29C.F.R. §2510.3-101, AS
MODIFIED BY SECTION 3(42) OF ERISA.
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 REQUESTED BY LENDER IN ITS SOLE DISCRETION,
THAT (I) BORROWER IS NOT A PLAN, OR A "GOVERNMENTAL PLAN" WITHIN THE MEANING OF
SECTION 3(32) OF ERISA; (II) BORROWER IS NOT SUBJECT TO ANY STATE STATUTE
REGULATING INVESTMENTS OF, OR FIDUCIARY OBLIGATIONS WITH RESPECT TO,
GOVERNMENTAL PLANS; AND (III) ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES IS
TRUE:
(I)
EQUITY INTERESTS IN BORROWER ARE PUBLICLY OFFERED SECURITIES,
WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(B)(2);
(II)
NONE OF THE ASSETS OF THE BORROWER ARE, WITH THE APPLICATION OF 29
C.F.R. §2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA, REGARDED AS ASSETS OF
ANY PLAN; OR
(III)
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).
(C)
"PLAN" SHALL MEAN AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) SUBJECT TO TITLE I OF ERISA OR A PLAN OR ANOTHER ARRANGEMENT
(WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, AND THE RELATED TREASURY DEPARTMENT REGULATIONS, INCLUDING TEMPORARY
REGULATIONS), SUBJECT TO SECTION 4975 OF THE CODE.
5.2.10
TRANSFERS.
(A) BORROWER ACKNOWLEDGES THAT LENDER HAS EXAMINED AND
RELIED ON THE EXPERIENCE OF BORROWER AND ITS STOCKHOLDERS, GENERAL PARTNERS,
MEMBERS, PRINCIPALS AND (IF BORROWER IS A TRUST) BENEFICIAL OWNERS IN OWNING AND
OPERATING PROPERTIES SUCH