WITH
RESPECT TO THE PROJECT OUTSTANDING AS OF THE CLOSING DATE.
(K)
NO RIGHTS.
NO PERSON OR ENTITY HAS THE RIGHT TO ACQUIRE THE
PROJECT EXCEPT THAT THE LESSOR UNDER THE GROUND LEASE HAS THE RIGHT TO THE
SURRENDER OF THE PROJECT BY THE LESSEE UNDER THE GROUND LEASE UPON THE
TERMINATION OF THE GROUND LEASE.
2.10
CONDUCT OF BUSINESS.
(A)
CHANGES.
SINCE THEIR DATE OF FORMATION NEITHER OF THE PROJECT
OWNER NOR TRANSFERORS HAVE (I) AUTHORIZED OR ISSUED ANY EQUITY SECURITIES;
GRANTED ANY OPTION OR RIGHT TO PURCHASE ANY EQUITY SECURITIES; ISSUED ANY
SECURITY CONVERTIBLE INTO EQUITY SECURITIES; GRANTED ANY REGISTRATION RIGHTS; OR
PURCHASED, REDEEMED, RETIRED, OR OTHERWISE ACQUIRED ANY EQUITY SECURITIES; (II)
AMENDED ITS ORGANIZATIONAL DOCUMENTS OTHER THAN TO CHANGE ITS NAME; (III) SOLD
OR TRANSFERRED ANY ASSETS EXCEPT IN THE ORDINARY COURSE OF BUSINESS CONSISTENT
WITH THE CONSTRUCTION AND OPERATION OF THE PROJECT; (IV) MORTGAGED OR PLEDGED
ANY ASSETS OR BEEN
15
SUBJECTED TO ANY LIEN OR OTHER ENCUMBRANCE OTHER THAN PURSUANT TO THE
CONSTRUCTION LOAN, THE MEZZANINE LOAN AND THE PERMITTED EXCEPTIONS; (V) INCURRED
OR BECOME SUBJECT TO ANY DEBT, LIABILITY OR LEASE OBLIGATION, OTHER THAN
PURSUANT TO THE CONSTRUCTION LOAN OR THE MEZZANINE LOAN, OR, WITH RESPECT TO THE
PROJECT OWNER, THE PERMITTED OBLIGATIONS; (VI) INCURRED OBLIGATIONS OR ENTERED
INTO CONTRACTS OTHER THAN THE CONSTRUCTION LOAN, THE MEZZANINE LOAN OR THE
PERMITTED OBLIGATIONS OR CONSTRUCTION CONTRACTS FOR THE PROJECT; (VII) SUFFERED
ANY DAMAGE, DESTRUCTION OR LOSS OF ANY ASSETS THAT WOULD ADVERSELY IMPACT THE
OPERATION OR USE OF THE PROJECT; (VIII) WAIVED OR RELINQUISHED ANY MATERIAL
RIGHTS OR CANCELED OR COMPROMISED ANY MATERIAL DEBT OR CLAIM OWING TO IT, IN
EITHER CASE, WITHOUT ADEQUATE CONSIDERATION OR NOT IN THE ORDINARY COURSE OF
BUSINESS CONSISTENT WITH THE CONSTRUCTION AND OPERATION OF THE PROJECT; OR
(IX) AGREED TO DO ANY OF THE FOREGOING.
(B)
NO ADVERSE CHANGE.
SINCE THE DATE OF FORMATION OF THE PROJECT
OWNER, THE PROJECT OWNER HAS CONDUCTED ITS BUSINESS ONLY IN THE ORDINARY COURSE
FOR THE ACQUISITION OF THE LAND AND THE CONSTRUCTION AND OPERATION OF THE
PROJECT CONSISTENT WITH PREVAILING INDUSTRY PRACTICES.
2.11
BOOKS AND RECORDS.
The Project Owner's books and records, including without limitation all
financial records, business records, minute books and equity transfer records,
(a) are complete and correct in all material respects and all transactions to
which the Project Owner is or has been a party are accurately reflected therein,
(b) have been maintained in accordance with customary and sound business
practices in the Project Owner's industry, and (c) accurately reflect the
assets, liabilities, financial position and results of operations of the Project
Owner in all material respects.
All computer-generated reports and other
computer data included in such books and records are complete and correct in all
material respects and were prepared in accordance with sound business practices
based upon authentic data.
2.12
COMPLIANCE WITH LAWS.
None of the Project Owner or the Transferors with respect to the Project Owner
or the Project has violated any judgment, writ,