IN AN AMOUNT EQUAL TO THE EXCESS OF THE TOTAL UNPAID
AMOUNTS WITH RESPECT TO ALTERATIONS TO THE IMPROVEMENTS ON THE PROPERTY (OTHER
THAN SUCH AMOUNTS TO BE PAID OR REIMBURSED BY TENANTS UNDER THE LEASES) OVER THE
THRESHOLD AMOUNT AND, IF CASH, MAY BE APPLIED FROM TIME TO TIME, AT THE OPTION
OF BORROWER, TO PAY FOR SUCH ALTERATIONS.
AT THE OPTION OF LENDER, FOLLOWING
THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, LENDER MAY
TERMINATE ANY OF THE ALTERATIONS AND USE THE DEPOSIT TO RESTORE THE PROPERTY TO
THE EXTENT NECESSARY TO PREVENT ANY MATERIAL ADVERSE EFFECT ON THE VALUE OF THE
PROPERTY.
SECTION 5.2.
NEGATIVE COVENANTS.
FROM THE CLOSING DATE UNTIL PAYMENT
AND PERFORMANCE IN FULL OF ALL OBLIGATIONS OF BORROWER UNDER THE LOAN DOCUMENTS
OR THE EARLIER RELEASE OF THE LIEN OF THE MORTGAGE ENCUMBERING THE PROPERTY IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
BORROWER COVENANTS AND AGREES WITH LENDER THAT IT WILL NOT DO, DIRECTLY OR
INDIRECTLY, ANY OF THE FOLLOWING:
5.2.1
OPERATION OF PROPERTY.
BORROWER SHALL NOT, WITHOUT THE PRIOR
CONSENT OF LENDER, TERMINATE THE MANAGEMENT AGREEMENT OR OTHERWISE REPLACE THE
MANAGER OR ENTER INTO ANY OTHER MANAGEMENT AGREEMENT WITH RESPECT TO THE
PROPERTY UNLESS THE MANAGER IS IN DEFAULT THEREUNDER BEYOND ANY APPLICABLE GRACE
OR CURE PERIOD, IN WHICH EVENT NO CONSENT BY LENDER SHALL BE REQUIRED.
LENDER
AGREES THAT ITS CONSENT WILL NOT BE UNREASONABLY WITHHELD, DELAYED OR
CONDITIONED PROVIDED THAT THE PERSON CHOSEN BY BORROWER AS THE REPLACEMENT
MANAGER IS A QUALIFYING MANAGER AND PROVIDED FURTHER THAT BORROWER SHALL DELIVER
AN ACCEPTABLE NON-CONSOLIDATION OPINION COVERING SUCH REPLACEMENT MANAGER IF
SUCH PERSON WAS NOT COVERED BY SUCH OPINION DELIVERED AT THE CLOSING OF THE
LOAN.
5.2.2
LIENS.
BORROWER SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF
LENDER, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY LIEN ON ANY PORTION OF THE
PROPERTY OR PERMIT ANY SUCH ACTION TO BE TAKEN, EXCEPT:
(I)
PERMITTED ENCUMBRANCES;
(II)
LIENS CREATED BY OR RELATED TO INDEBTEDNESS PERMITTED PURSUANT TO
THE LOAN DOCUMENTS; AND
(III)
LIENS FOR TAXES OR OTHER CHARGES NOT YET DUE (OR THAT BORROWER IS
CONTESTING IN ACCORDANCE WITH THE TERMS OF SECTION 5.1.2 HEREOF).
5.2.3
DISSOLUTION.
BORROWER SHALL NOT (A) ENGAGE IN ANY DISSOLUTION,
LIQUIDATION OR CONSOLIDATION OR MERGER WITH OR INTO ANY OTHER BUSINESS ENTITY,
(B) ENGAGE IN ANY BUSINESS ACTIVITY NOT RELATED TO THE OWNERSHIP AND OPERATION
OF THE PROPERTY, (C) TRANSFER, LEASE OR SELL, IN ONE TRANSACTION OR ANY
COMBINATION OF TRANSACTIONS, THE ASSETS OR ALL OR SUBSTANTIALLY ALL OF THE
PROPERTIES OR ASSETS OF BORROWER EXCEPT TO THE EXTENT PERMITTED BY THE LOAN
DOCUMENTS, (D) MODIFY, AMEND, WAIVE OR TERMINATE ITS ORGANIZATIONAL DOCUMENTS OR
ITS QUALIFICATION AND GOOD
44
STANDING IN ANY JURISDICTION OR (E) CAUSE THE SOLE MEMBER TO (I) DISSOLVE, WIND
UP OR LIQUIDATE OR TAKE ANY ACTION, OR OMIT TO TAKE AN ACTION, AS A RESULT OF
WHICH THE SOLE MEMBER WOULD BE DISSOLVED, WOUND UP