SET FORTH ABOVE, BORROWER MAY,
AFTER PRIOR NOTICE TO LENDER, AT ITS OWN EXPENSE, CONTEST BY APPROPRIATE LEGAL
PROCEEDING, PROMPTLY INITIATED AND CONDUCTED IN GOOD FAITH AND WITH DUE
DILIGENCE, THE AMOUNT OR VALIDITY OF ANY SUCH PERMITTED INDEBTEDNESS (DURING
WHICH TIME SUCH 60-DAY PERIOD SHALL BE TOLLED), PROVIDED THAT IF BORROWER
DESIRES TO WITHHOLD PAYMENT OF SUCH PERMITTED INDEBTEDNESS DURING THE PENDENCY
OF THE CONTEST, (I) NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, (II) NO
PART OF OR INTEREST IN THE PROPERTY WILL BE IN DANGER OF BEING SOLD, FORFEITED,
TERMINATED, CANCELED OR LOST, (III) BORROWER SHALL HAVE FURNISHED SUCH SECURITY
AS MAY BE REQUIRED IN THE PROCEEDING, OR AS MAY BE REASONABLY REQUESTED BY
LENDER, TO INSURE THE PAYMENT OF ANY SUCH PERMITTED INDEBTEDNESS, TOGETHER WITH
ALL INTEREST AND PENALTIES THEREON, WHICH SECURITY SHALL NOT BE LESS THAN ONE
HUNDRED TWENTY-FIVE PERCENT (125%) OF THE PERMITTED INDEBTEDNESS BEING
CONTESTED, AND (IV) BORROWER SHALL PROMPTLY UPON FINAL DETERMINATION THEREOF PAY
THE AMOUNT OF SUCH PERMITTED INDEBTEDNESS, TOGETHER WITH ALL COSTS, INTEREST AND
PENALTIES AND BORROWER SHALL BE PERMITTED TO USE SUCH SECURITY 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 5.26.3 OR TO THE
EXTENT REQUIRED IN CONNECTION WITH A PERMITTED TRANSFER).
5.24
COMPLIANCE WITH RESTRICTIVE COVENANTS, ETC.
BORROWER WILL NOT 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.
47
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