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 CF&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 CF&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 CF&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 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 CF&CO'S
REQUEST, ANY AMENDMENTS OR SUPPLEMENTS TO THE REGISTRATION STATEMENT, PROSPECTUS
OR FREE WRITING PROSPECTUS THAT, IN THE OPINION OF EXTERNAL COUNSEL FOR CF&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 OR
SUPPLEMENT THE PROSPECTUS IN ORDER TO COMPLY WITH THE REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH THE DISTRIBUTION OF THE PLACEMENT SHARES BY
19
CF&CO (PROVIDED, HOWEVER, THAT THE FAILURE OF CF&CO TO MAKE SUCH REQUEST SHALL
NOT RELIEVE THE COMPANY OF ANY OBLIGATION OR LIABILITY HEREUNDER, OR AFFECT
CF&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
PROSPECUTS RELATING TO THE PLACEMENT SHARES UNLESS A COPY THEREOF HAS BEEN
SUBMITTED TO