WHEREBY THE LIEN OF ANY TAXES WHICH MAY BE LEVIED AGAINST SUCH
PERSONAL PROPERTY SHALL BE ASSESSED OR LEVIED OR CHARGED TO THE PROPERTY.
4.2.10
PRINCIPAL PLACE OF BUSINESS.
BORROWER SHALL NOT CHANGE ITS PRINCIPAL
PLACE OF BUSINESS FROM THE ADDRESS SET FORTH ON THE FIRST PAGE OF THIS AGREEMENT
WITHOUT FIRST GIVING LENDER THIRTY (30) DAYS PRIOR NOTICE.
4.2.11
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 THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA").
50
(B)
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 SOLE DISCRETION, THAT (A) 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; (B)
BORROWER IS NOT SUBJECT TO ANY STATE STATUTE REGULATING INVESTMENTS OF, OR
FIDUCIARY OBLIGATIONS WITH RESPECT TO, GOVERNMENTAL PLANS; AND (C) 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)
LESS THAN TWENTY-FIVE PERCENT (25%) OF EACH OUTSTANDING CLASS OF
EQUITY INTERESTS IN BORROWER IS HELD BY "BENEFIT PLAN INVESTORS" WITHIN THE
MEANING OF 29 C.F.R. §2510.3-101(F)(2);
(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); OR
(IV)
THE ASSETS OF BORROWER ARE NOT OTHERWISE "PLAN ASSETS" OF ONE OR
MORE "EMPLOYEE BENEFIT PLANS" (AS DEFINED IN SECTION 3(3) OF ERISA) SUBJECT TO
TITLE I OF ERISA, WITHIN THE MEANING OF 29 C.F.R. §2510.3-101.
4.2.12
MATERIAL AGREEMENTS.
BORROWER SHALL NOT, WITHOUT LENDER'S PRIOR
WRITTEN CONSENT, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED:
(A) ENTER INTO, SURRENDER OR TERMINATE ANY MATERIAL AGREEMENT TO WHICH IT IS A
PARTY (UNLESS THE OTHER PARTY THERETO IS IN MATERIAL DEFAULT AND THE TERMINATION
OF SUCH AGREEMENT WOULD BE COMMERCIALLY REASONABLE), (B) INCREASE OR CONSENT TO
THE INCREASE OF THE AMOUNT OF ANY CHARGES UNDER ANY MATERIAL AGREEMENT TO WHICH
IT IS A PARTY, EXCEPT AS PROVIDED THEREIN OR ON AN ARMS'-LENGTH BASIS AND
COMMERCIALLY REASONABLE TERMS; OR (C) OTHERWISE MODIFY, CHANGE, SUPPLEMENT,
ALTER OR AMEND, OR WAIVE OR RELEASE ANY OF ITS RIGHTS AND REMEDIES UNDER ANY
MATERIAL AGREEMENT TO WHICH IT IS A PARTY IN ANY MATERIAL RESPECT, EXCEPT ON AN
ARMS'-LENGTH BASIS AND COMMERCIALLY REASONABLE TERMS.
4.2.13
AIR RIGHTS LEASE.
THE BORROWER HEREBY COVENANTS AND AGREES WITH
LENDER WITH RESPECT TO THE AIR RIGHTS LEASE AS FOLLOWS:
(A)
BORROWER SHALL NOT, WITHOUT LENDER'S PRIOR WRITTEN CONSENT,
MATERIALLY AMEND, MODIFY OR SUPPLEMENT THE AIR RIGHTS LEASE