Borrower to suffer, permit or
initiate the joint assessment of any Individual Property with (a) any other real
property constituting a tax lot separate from such Individual Property, or (b)
any portion of such Individual Property which may be deemed to constitute
personal property, or any other procedure whereby the Lien of any taxes which
may be levied against such personal property shall be assessed or levied or
charged to such Individual Property.
5.2.7
Name, Identity, Structure, or Principal Place of
Business.
No Borrower Entity shall change its name (including its trade name or names)
without first giving Lender fifteen (15) days' prior written notice. Except as
otherwise expressly permitted under Section 5.2.10 hereof, no Borrower Entity
shall change its limited liability company, partnership or other structure, or
the place of its organization as set forth in Section 4.1.34, without, in each
case, the consent of Lender. Upon Lender's request, Borrower shall execute and
deliver additional financing statements, security agreements and other
instruments which may be necessary to effectively evidence or perfect Lender's
security interest in the Collateral as a result of such change of principal
place of business or place of organization.
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5.2.8
ERISA.
(A)
DURING THE TERM OF THE LOAN OR OF ANY
OBLIGATION, OR RIGHT HEREUNDER, NO LOAN PARTY SHALL BE A PLAN AND NONE OF THE
ASSETS OF ANY LOAN PARTY SHALL CONSTITUTE PLAN ASSETS.
(B)
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 MAY BE REQUESTED BY LENDER, AND REPRESENTS
AND COVENANTS THAT (A) NO LOAN PARTY IS 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) NO LOAN PARTY IS 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:
(I)
EQUITY INTERESTS SUCH LOAN PARTY 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 SUCH LOAN PARTY ARE HELD BY "BENEFIT
PLAN INVESTORS" WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(F)(2); OR
(III)
SUCH LOAN PARTY 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).
5.2.9
Affiliate Transactions.
(A)
BORROWER SHALL NOT ENTER INTO, OR BE A
PARTY TO, ANY TRANSACTION WITH AN AFFILIATE OF BORROWER, PRINCIPAL OR ANY OF THE
PARTNERS OF BORROWER OR PRINCIPAL EXCEPT IN THE ORDINARY COURSE OF BUSINESS AND
ON TERMS WHICH ARE FULLY DISCLOSED TO LENDER IN ADVANCE AND ARE SUBSTANTIALLY
SIMILAR TO THOSE THAT WOULD BE OBTAINED IN A COMPARABLE ARM'S-LENGTH TRANSACTION
(TAKING INTO ACCOUNT THE RELATIVE STANDARDS FOR QUALITY AND REPUTATION OF THE
PARTY RENDERING THE SERVICE) WITH AN UNRELATED THIRD PARTY. LENDER ACKNOWLEDGES
THAT IT HAS APPROVED THE MANAGEMENT AGREEMENT.
(B)