STANLEY"), SELLERS HAVE NOT EMPLOYED, AND ARE NOT SUBJECT
TO ANY VALID CLAIM OF, ANY BROKER, FINDER, INVESTMENT BANKER, CONSULTANT OR
OTHER INTERMEDIARY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT WHO WILL BE ENTITLED TO A FEE OR COMMISSION IN CONNECTION WITH SUCH
TRANSACTIONS.
SELLERS ARE SOLELY RESPONSIBLE FOR ANY PAYMENT, FEE OR COMMISSION
THAT MAY BE DUE TO MORGAN STANLEY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.8.
INTEREST IN PARTNERSHIPS.
THE REPRESENTATIONS
OF SELLERS IN SCHEDULE 4.8 AS TO (I) "TOTAL COMMITMENT," (II) "FUNDED LEVEL" AND
(III) "UNFUNDED LEVEL" FOR EACH PARTNERSHIP ARE TRUE, COMPLETE AND CORRECT AS OF
JUNE 30, 2004.
SCHEDULE 1.1 SETS FORTH THE NET ASSET VALUE AS OF JUNE 30, 2004
AS PROVIDED TO SELLERS BY THE RESPECTIVE PARTNERSHIPS.
THE CERTIFICATES
DELIVERED BY SELLERS TO BUYER IN ACCORDANCE WITH (I) SECTION 2.2(B) FOR THE
PERIOD JULY 1, 2004 THROUGH AND
9
INCLUDING THE DATE WHICH IS TWO BUSINESS DAYS PRIOR TO EACH CLOSING DATE AND
(II) SECTION 2.2(C), EACH WILL BE TRUE, COMPLETE AND CORRECT.
4.9.
NO OPT OUTS/WAIVER.
NEITHER SELLER HAS OPTED
OUT OF OR OTHERWISE BEEN EXCUSED FROM ANY PORTFOLIO INVESTMENT MADE BY ANY
PARTNERSHIP, AND WITH RESPECT TO THEIR RESPECTIVE PARTNERSHIP INTERESTS, EACH
SELLER HAS PARTICIPATED IN ITS PRO RATA SHARE OF EACH PORTFOLIO INVESTMENT MADE
BY SUCH PARTNERSHIP.
NEITHER SELLER HAS TAKEN ANY ACTION WITH RESPECT TO THE
PARTNERSHIPS OTHER THAN AS A LIMITED PARTNER OR MEMBER OF THE PARTNERSHIP IN
ACCORDANCE WITH THE PARTNERSHIP AGREEMENT AND OTHER OPERATIVE DOCUMENTS OR
WAIVED ANY OF ITS RIGHTS UNDER SUCH PARTNERSHIP AGREEMENT OR OTHER DOCUMENTS
THAT HAS OR WOULD ADVERSELY AFFECT THE PARTNERSHIP INTERESTS.
4.10.
ERISA PLAN ASSET MATTERS.
NEITHER SELLER IS, NOR
IS EITHER SELLER ACTING ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF ERISA AND/OR SECTION 4975 OF THE CODE.
4.11.
AGREEMENTS AND COMMITMENTS.
SCHEDULE 4.11 SETS
FORTH A LIST OF ALL MATERIAL CONTRACTS, AGREEMENTS AND COMMITMENTS (OTHER THAN
THE PARTNERSHIP AGREEMENTS) TO WHICH A SELLER IS A PARTY WITH RESPECT TO THE
PARTNERSHIP INTERESTS.
4.12.
RETURN OF DISTRIBUTIONS.
NEITHER SELLER HAS
RECEIVED WRITTEN NOTICE OF ANY OUTSTANDING OBLIGATION TO RETURN TO A PARTNERSHIP
DISTRIBUTIONS OR PORTIONS OF DISTRIBUTIONS, IF ANY, PREVIOUSLY RECEIVED FROM
SUCH PARTNERSHIP.
4.13.
LITIGATION.
EXCEPT AS PROVIDED ON SCHEDULE 4.13,
THERE IS NOT PENDING OR, TO EITHER SELLER'S KNOWLEDGE, THREATENED AGAINST OR
AFFECTING EITHER SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES ANY ACTION, SUIT
OR PROCEEDING AT LAW OR IN EQUITY BEFORE ANY COURT, TRIBUNAL, GOVERNMENTAL BODY,
AGENCY OR OFFICIAL OR ANY ARBITRATOR RELATING TO EITHER SELLER'S PARTNERSHIP
INTERESTS OR THAT MIGHT AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY AGAINST
EITHER SELLER OF THIS AGREEMENT AND THE RELATED ASSIGNMENT AND ASSUMPTION
AGREEMENTS OR EITHER SELLER'S ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER AND
THEREUNDER.
EXCEPT AS PROVIDED ON SCHEDULE 4.13, NEITHER SELLERS NOR THEIR
AFFILIATES HAVE RECEIVED WRITTEN NOTIFICATION OF ANY LAWSUIT, PROCEEDING OR
INVESTIGATION PENDING OR THREATENED AGAINST EITHER SELLER THAT WOULD, IF
ADVERSELY DETERMINED, PREVENT OR MATERIALLY DELAY CONSUMMATION