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 STANDING IN ANY
JURISDICTION IN WHICH IT IS ORGANIZED OR THE PROPERTY IS LOCATED OR (E) CAUSE
THE PRINCIPAL TO (I) DISSOLVE, WIND UP OR LIQUIDATE OR TAKE ANY ACTION, OR OMIT
TO TAKE AN ACTION, AS A RESULT OF WHICH THE PRINCIPAL WOULD BE DISSOLVED, WOUND
UP OR LIQUIDATED IN WHOLE OR IN PART, OR (II) AMEND, MODIFY, WAIVE OR TERMINATE
THE CERTIFICATE OF FORMATION OR OPERATING AGREEMENT OF THE PRINCIPAL, IN EACH
CASE, WITHOUT OBTAINING THE PRIOR WRITTEN CONSENT OF LENDER OR LENDER'S
DESIGNEE.
5.2.4
CHANGE IN BUSINESS.
BORROWER SHALL NOT ENTER INTO ANY
LINE OF BUSINESS OTHER THAN THE OWNERSHIP AND OPERATION OF THE PROPERTY, OR MAKE
ANY MATERIAL CHANGE IN THE SCOPE OR NATURE OF ITS BUSINESS OBJECTIVES, PURPOSES
OR OPERATIONS, OR UNDERTAKE OR 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
53
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.
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