Code/regulations. The Plan Administrator will make the determination of who is a Key Employee in accordance with Code §416(i)(1) and the applicable Treasury regulations.
Code/regulations. The parties hereto acknowledge that Lender intends to treat the Loan as real property within the meaning of Section 856(c)(4)(A) and 856(c)(5)(B) of the Internal Revenue Code of 1986, as amended (the “Code”), and to treat interest on the Loan as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c)(3)(B) of the Code, all as consistent with Internal Revenue Service Revenue Procedure 2003-65. In furtherance of the foregoing, after the date hereof Borrower shall, at Lender’s expense, take any action at the reasonable request of the Lender, or omit taking any action, in each case, as necessary in order to cause the Loan to constitute real property as described in the preceding sentence or cause any amounts received pursuant to the Loan to be considered as income qualifying under Section 856(c)(2) and 856(c)(3); provided, however, that Borrower shall not be required to take any action under this Section 6.39 that would materially increase Borrower’s obligations or materially decrease Borrower’s rights under the Loan Documents. For the avoidance of doubt, the Loan Documents as drafted as of the date hereof shall not cause the Loan to be in violation of the foregoing provisions.
