OR TERMINATED, WRITTEN OR UNWRITTEN), OR ANY TRUST, ESCROW OR OTHER
AGREEMENT RELATED THERETO. "SELLER/ERISA AFFILIATE BENEFIT PLAN" MEANS ANY
EMPLOYEE BENEFIT PLAN WHICH ANY TRADE OR BUSINESS (WHETHER OR NOT INCORPORATED)
WHICH IS OR AT ANY TIME WITHIN THE SIX (6) YEAR PERIOD PRECEDING THE DATE OF
THIS AGREEMENT WOULD HAVE BEEN TREATED AS A "SINGLE EMPLOYER" WITH THE PROJECT
OWNER UNDER SECTION 414(B), (C), (M), OR (O) OF THE CODE ("ERISA AFFILIATE")
MAINTAINS, SPONSORS, PARTICIPATES IN, CONTRIBUTES TO, OR IS REQUIRED TO
CONTRIBUTE TO, OR WITH RESPECT TO WHICH THE PROJECT OWNER, 128VOSS OR ANY ERISA
AFFILIATE HAS ANY OBLIGATION OR LIABILITY (CONTINGENT OR OTHERWISE).
2.15
CONDUCT OF BUSINESS.
(A)
CHANGES.
SINCE THEIR DATE OF FORMATION
NEITHER OF THE PROJECT OWNER NOR 128VOSS HAS (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 SUBJECTED TO ANY LIEN OR OTHER
ENCUMBRANCE OTHER THAN PURSUANT TO THE CONSTRUCTION LOAN, THE MEZZANINE LOANS
AND THE PERMITTED EXCEPTIONS; (V) INCURRED
17
OR BECOME SUBJECT TO ANY DEBT, LIABILITY OR LEASE OBLIGATION, OTHER THAN
PURSUANT TO THE CONSTRUCTION LOAN OR THE MEZZANINE LOANS, OR, WITH RESPECT TO
THE PROJECT OWNER, THE PERMITTED OBLIGATIONS; (VI) INCURRED OBLIGATIONS OR
ENTERED INTO CONTRACTS OTHER THAN THE CONSTRUCTION LOAN, THE MEZZANINE LOANS OR
THE PERMITTED OBLIGATIONS OR CONSTRUCTION CONTRACTS FOR THE PROJECT;
(VII) SUFFERED ANY DAMAGE, DESTRUCTION OR LOSS OF ANY ASSETS; (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.
SINCE THE DATE OF FORMATION OF 128VOSS, 128VOSS HAS CONDUCTED ITS BUSINESS ONLY
IN THE ORDINARY COURSE.
2.16
BOOKS AND RECORDS.
THE PROJECT OWNER'S AND
128VOSS'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