PARTIES PENDING CLOSING.
(A)
REASONABLE BEST EFFORTS.
EACH OF THE
PARTIES WILL USE THEIR REASONABLE BEST EFFORTS TO OBTAIN ALL NECESSARY CONSENTS
AND APPROVALS AND TO CAUSE THE CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
HEREUNDER TO BE SATISFIED AND, UPON EXERCISE OF THE PURCHASE OPTION OR THE PUT
OPTION, TO CAUSE THE CLOSING TO BE CONSUMMATED AS PROMPTLY AS PRACTICABLE, AND
WILL COOPERATE WITH ONE ANOTHER IN CONNECTION WITH THE FOREGOING.
(B)
CONDUCT OF BUSINESS.
THE SELLER SHALL, AT
ITS EXPENSE (TAKING INTO ACCOUNT THE USE BY THE PROJECT OWNER OF THE PROCEEDS OF
THE CONSTRUCTION LOAN TO FUND SUCH CONSTRUCTION), CAUSE THE PROJECT OWNER TO
CONSTRUCT THE PROJECT ON THE LAND, IN SUBSTANTIAL ACCORDANCE WITH THE PLANS AND
IN ACCORDANCE WITH THE REQUIREMENTS OF THE MEZZANINE LOANS.
FROM THE EXECUTION
OF THIS AGREEMENT UNTIL THE CLOSING, SELLER WILL CAUSE THE PROJECT OWNER AND 128
VOSS TO OPERATE IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH THE PRUDENT
CONSTRUCTION AND OPERATION OF THE PROJECT AND IN ACCORDANCE THE REQUIREMENTS OF
THE MEZZANINE LOANS. WITHOUT LIMITATION, NEITHER THE PROJECT OWNER NOR 128VOSS
SHALL TAKE ANY ACTION, OR FAIL TO TAKE ANY ACTION, AS A RESULT OF WHICH ANY OF
THE CHANGES OR EVENTS LISTED IN SECTION 2.15(A) (CHANGES) WOULD OCCUR.
SELLER
SHALL MAINTAIN AND PRESERVE THE PROJECT OWNER AND 128VOSS AND THEIR RESPECTIVE
BUSINESS, FRANCHISES AND AUTHORIZATIONS, AND USE COMMERCIALLY REASONABLE EFFORTS
TO MAINTAIN AND PRESERVE THEIR RESPECTIVE PROSPECTS, GOODWILL AND ADVANTAGEOUS
BUSINESS RELATIONSHIPS.
SELLER WILL CAUSE PROJECT OWNER TO (I) MAINTAIN AND
OPERATE THE PROPERTY IN ACCORDANCE WITH TRAMMELL CROW RESIDENTIAL'S CUSTOMARY
MANNER, REASONABLE WEAR AND TEAR AND DAMAGE FROM CASUALTY EXCEPTED, (II)
CONTINUE ALL INSURANCE POLICIES RELATIVE TO THE PROPERTY (OR IF SUCH INSURANCE
IS CANCELED OR EXPIRES, COMPARABLE INSURANCE CONSISTENT WITH SIMILAR PROJECTS IN
THE HOUSTON METROPOLITAN AREA) IN FULL FORCE AND EFFECT, (III) AFTER THE
COMPLETION DATE NOT REMOVE
7
ANY ITEM OF PERSONAL PROPERTY FROM THE LAND OR IMPROVEMENTS UNLESS REPLACED BY A
COMPARABLE ITEM OF PERSONAL PROPERTY, (IV) MAINTAIN ALL PERMITS, LICENSES AND
OCCUPANCY CERTIFICATES, INCLUDING, WITHOUT LIMITATION, ALL DEVELOPMENT, BUILDING
AND USE PERMITS AND CERTIFICATES OF OCCUPANCY AND (V) PERFORM, WHEN DUE, ALL
MATERIAL OBLIGATIONS UNDER ANY AND ALL MATERIAL AGREEMENTS RELATING TO THE
PROPERTY AND OTHERWISE IN ACCORDANCE WITH APPLICABLE LAWS, ORDINANCES, RULES,
AND REGULATIONS; AND (VI) PROMPTLY FORWARD TO PURCHASER ANY MATERIAL NOTICES OF
VIOLATIONS GOVERNMENTAL REQUIREMENTS OR RESTRICTIONS WHICH SELLER RECEIVES OR
BECOMES AWARE.
SELLER WILL NOT PERMIT EITHER PROJECT OWNER OR 128VOSS TO HAVE
ANY EMPLOYEES.
IN ADDITION, SELLER WILL NOT PERMIT 128VOSS TO ENGAGE IN ANY
TRADE OR BUSINESS ACTIVITY OTHER THAN THE OWNERSHIP OF THE 127 MEMBERSHIP
INTEREST AND ANCILLARY ACTIVITIES.
IN ADDITION, SELLER WILL CAUSE 128VOSS AND
129VOSS TO COMPLY WITH ALL TERMS AND PROVISIONS OF THE MEZZANINE LOANS.
(C)
ACQUISITION OF HART TRACT.
SELLER SHALL
CAUSE THE PROJECT OWNER TO USE COMMERCIALLY REASONABLE EFFORTS TO ACQUIRE THE
HART TRACT PRIOR TO THE HART OUTSIDE ACQUISITION DATE IN ACCORDANCE WITH THE
TERMS AND PROVISIONS OF