CONTAINED HEREIN OR THEREIN NOT MISLEADING
IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE.
(XX)
FINANCIAL INFORMATION.
ALL FINANCIAL DATA CONCERNING THE
PURCHASED SECURITIES THAT HAS BEEN DELIVERED BY OR ON BEHALF OF SELLER TO BUYER
WAS, AT THE TIME SO DELIVERED, ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS.
ALL CONSOLIDATED FINANCIAL STATEMENTS OF SPONSOR THAT HAVE BEEN DELIVERED BY OR
ON BEHALF OF SPONSOR TO BUYER WERE PREPARED IN CONFORMITY WITH GAAP, EXCEPT AS
SET FORTH THEREIN.
ALL PROJECTIONS AND PRO FORMA FINANCIAL INFORMATION SO
DELIVERED WERE BASED ON GOOD FAITH ESTIMATES AND ASSUMPTIONS BELIEVED BY SELLER
TO BE REASONABLE AT THE TIME WHEN MADE.
SINCE MARCH 31, 2004, EXCEPT AS
OTHERWISE DISCLOSED IN SUBSEQUENT PRESS RELEASES OR FILINGS WITH THE SEC, THERE
HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE OPERATIONS OR FINANCIAL CONDITION OF
SPONSOR FROM THAT SET FORTH IN THE MOST RECENT CONSOLIDATED FINANCIAL STATEMENTS
FILED BY SPONSOR.
(XXI)
JURISDICTION OF ORGANIZATION.
SELLER'S JURISDICTION OF
ORGANIZATION IS MARYLAND.
(C)
IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES IN SUBSECTION
(A) ABOVE, BUYER REPRESENTS AND WARRANTS TO SELLER THAT AS OF THE PURCHASE DATE
FOR THE PURCHASE OF ANY PURCHASED SECURITIES BY BUYER FROM SELLER AND ANY
TRANSACTION THEREUNDER AND AS OF THE DATE OF THIS AGREEMENT:
(I)
DUE EXECUTION; ENFORCEABILITY.
THE TRANSACTION DOCUMENTS HAVE
BEEN OR WILL BE DULY EXECUTED AND DELIVERED BY BUYER, FOR GOOD AND VALUABLE
CONSIDERATION.
THE TRANSACTION DOCUMENTS CONSTITUTE THE LEGAL, VALID AND
BINDING OBLIGATIONS OF BUYER, ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS SUBJECT TO BANKRUPTCY, INSOLVENCY, AND OTHER LIMITATIONS
ON CREDITORS' RIGHTS GENERALLY AND TO EQUITABLE PRINCIPLES.
(II)
REQUIREMENTS OF LAW.
BUYER IS IN COMPLIANCE IN ALL MATERIAL
RESPECTS WITH ALL REQUIREMENTS OF LAW.
11.
NEGATIVE COVENANTS OF SELLER
On and as of the date hereof and each Purchase Date and until this Agreement is
no longer in force with respect to any Transaction, Seller shall not without the
prior written consent of the Buyer:
(A)
TAKE ANY ACTION WHICH WOULD DIRECTLY OR INDIRECTLY IMPAIR OR
ADVERSELY AFFECT BUYER'S TITLE TO THE PURCHASED SECURITIES;
27
(B)
TRANSFER, ASSIGN, CONVEY, GRANT, BARGAIN, SELL, SET OVER, DELIVER
OR OTHERWISE DISPOSE OF, OR PLEDGE OR HYPOTHECATE, DIRECTLY OR INDIRECTLY, ANY
INTEREST IN THE PURCHASED SECURITIES (OR ANY OF THEM) TO ANY PERSON OTHER THAN
BUYER, OR ENGAGE IN REPURCHASE TRANSACTIONS OR SIMILAR TRANSACTIONS WITH RESPECT
TO THE PURCHASED SECURITIES (OR ANY OF THEM) WITH ANY PERSON OTHER THAN BUYER;
(C)
PERMIT A CHANGE OF CONTROL TO OCCUR;
(D)
CREATE, INCUR OR PERMIT TO EXIST ANY LIEN, ENCUMBRANCE OR SECURITY
INTEREST IN OR ON THE PURCHASED SECURITIES, EXCEPT AS DESCRIBED IN PARAGRAPH 6
OF THIS AGREEMENT;
(E)
CREATE, INCUR OR PERMIT TO EXIST ANY LIEN, ENCUMBRANCE OR SECURITY
INTEREST IN OR ON ANY OF THE OTHER COLLATERAL SUBJECT TO THE SECURITY INTEREST
GRANTED BY SELLER PURSUANT TO PARAGRAPH 6 OF THIS AGREEMENT;
(F)
MODIFY IN ANY MATERIAL RESPECT OR TERMINATE ANY OF THE
ORGANIZATIONAL DOCUMENTS OF SELLER;
(G)
CONSENT OR