TO
COMPLY WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE
EFFECT; ALL OF THE GOVERNMENTAL LICENSES ARE VALID AND IN FULL FORCE AND EFFECT,
EXCEPT WHEN THE INVALIDITY OF SUCH GOVERNMENTAL LICENSES OR THE FAILURE OF SUCH
GOVERNMENTAL LICENSES TO BE IN FULL FORCE AND EFFECT WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT; AND THE MANAGER HAS NOT RECEIVED ANY NOTICE OF PROCEEDINGS
RELATING TO THE REVOCATION OR MODIFICATION OF ANY SUCH GOVERNMENTAL LICENSES
WHICH, INDIVIDUALLY OR IN THE AGGREGATE, IF THE SUBJECT OF AN UNFAVORABLE
DECISION, RULING OR FINDING, WOULD RESULT IN A MATERIAL ADVERSE EFFECT.
(8)
INVESTMENT ADVISERS ACT. THE MANAGER IS NOT PROHIBITED BY THE
INVESTMENT ADVISERS ACT OF 1940, AS AMENDED (THE "ADVISERS ACT"), OR THE
RULES AND REGULATIONS THEREUNDER, FROM PERFORMING UNDER THE MANAGEMENT AGREEMENT
AS CONTEMPLATED BY THE MANAGEMENT AGREEMENT AND AS DESCRIBED IN THE PROSPECTUS.
7. COVENANTS OF THE COMPANY. EACH OF THE COMPANY AND THE OPERATING PARTNERSHIP,
SEVERALLY, COVENANTS AND AGREES WITH ML&CO AS FOLLOWS:
(A) REGISTRATION STATEMENT AMENDMENTS. AFTER THE DATE OF THIS AGREEMENT AND
DURING ANY PERIOD IN WHICH A PROSPECTUS RELATING TO ANY PLACEMENT SHARES IS
REQUIRED TO BE DELIVERED BY ML&CO UNDER THE SECURITIES ACT (INCLUDING IN
CIRCUMSTANCES WHERE SUCH REQUIREMENT MAY BE SATISFIED PURSUANT TO RULE 172 UNDER
THE SECURITIES ACT), (I) THE COMPANY WILL NOTIFY ML&CO PROMPTLY OF THE TIME WHEN
ANY SUBSEQUENT AMENDMENT TO THE REGISTRATION STATEMENT, OTHER THAN DOCUMENTS
INCORPORATED BY REFERENCE, HAS BEEN FILED WITH THE COMMISSION AND/OR HAS BECOME
EFFECTIVE OR ANY SUBSEQUENT SUPPLEMENT TO THE PROSPECTUS HAS BEEN FILED AND OF
ANY
17
REQUEST BY THE COMMISSION FOR ANY AMENDMENT OR SUPPLEMENT TO THE REGISTRATION
STATEMENT OR PROSPECTUS OR FOR ADDITIONAL INFORMATION, (II) THE COMPANY WILL
PREPARE AND FILE WITH THE COMMISSION, PROMPTLY UPON ML&CO'S REQUEST, ANY
AMENDMENTS OR SUPPLEMENTS TO THE REGISTRATION STATEMENT, PROSPECTUS OR FREE
WRITING PROSPECTUS THAT, IN THE OPINION OF EXTERNAL COUNSEL FOR ML&CO, IS
NECESSARY IN ORDER THAT THE REGISTRATION STATEMENT OR PROSPECTUS WILL NOT
INCLUDE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN NOT MISLEADING (WITH RESPECT
TO THE PROSPECTUS ONLY, IN THE LIGHT OF THE CIRCUMSTANCES EXISTING AT THE TIME
IT IS DELIVERED TO A PURCHASER), OR IF IT SHALL BE NECESSARY, IN THE OPINION OF
SUCH COUNSEL, AT ANY SUCH TIME TO AMEND THE REGISTRATION STATEMENT OR AMEND,
SUPPLEMENT THE PROSPECTUS OR DELIVER ANY FREE WRITING PROSPECTUS IN ORDER TO
COMPLY WITH THE REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH THE
DISTRIBUTION OF THE PLACEMENT SHARES BY ML&CO (PROVIDED, HOWEVER, THAT THE
FAILURE OF ML&CO TO MAKE SUCH REQUEST SHALL NOT RELIEVE THE COMPANY OF ANY
OBLIGATION OR LIABILITY HEREUNDER, OR AFFECT ML&CO'S RIGHT TO RELY ON THE
REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN THIS AGREEMENT); (III) THE
COMPANY WILL NOT FILE ANY AMENDMENT OR SUPPLEMENT TO THE REGISTRATION STATEMENT
OR PROSPECTUS OR PREPARE ANY FREE WRITING PROSPECTUS RELATING TO THE PLACEMENT