Common use of Additional Representations and Warranties Clause in Contracts

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.. ARTICLE FOUR

Additional Representations and Warranties. The Securities Intermediary makes Upon the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and scheduled to occur on the fulfillment of the terms of, this Agreement will not Transaction Settlement Date for each Primary Portfolio: (i) conflict withthe Seller hereby represents and warrants to the Purchaser as of the applicable Transaction Settlement Date (and such representations and warranties shall survive the Transaction Settlement Date) that: (A) with respect to each Primary Portfolio Mortgage Loan, result the Seller has been duly and validly appointed as the servicer thereof under the applicable Servicing Agreement or Guide and, for the purposes of such capacity, such Servicing Agreement or Guide is in any full force and effect; (B) the Seller is not in material breach of or in default of its duties under any of the terms and provisions ofapplicable Servicing Agreement or Guide; (C) no event has occurred that, or constitute (with or without notice or lapse the passage of time time, would entitle any Person to terminate the Seller as servicer of any Primary Portfolio Mortgage Loan under any applicable Servicing Agreement or bothGuide, and the Seller has no notice or knowledge of the intention of any Person to terminate or cause the termination of the Seller’s rights and duties as servicer under any applicable Servicing Agreement or Guide; (D) a default under its charter documents the information set forth in the data tape delivered to Purchaser on the Transaction Settlement Date is true and correct in all material respects as of the date specified; (E) the Seller is the sole owner of the Servicing Rights related to each Mortgage Loan in such Primary Portfolio (subject to the terms of the related Servicing Agreement or by-lawsGuide), free and clear of any material indentureLien, mortgageclaim, deed encumbrance or ownership interest in favor or any Person other than the interests of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which Purchaser contemplated hereby; and (F) the Securities Intermediary is bound, Seller has serviced the applicable Mortgage Loans in accordance with the terms of the related Servicing Agreement and Accepted Servicing Practices. (ii) result in the creation or imposition of any Lien upon any Purchaser hereby represents and warrants to the Seller as of the Securities Intermediaryapplicable Transaction Settlement Date (and such representations and warranties shall survive the Transaction Settlement Date) that the Purchaser is a sophisticated investor and its decision to enter into such Transaction is based upon the Purchaser’s properties independent experience, knowledge and due diligence and evaluation of such Transaction without reliance on any oral or written information provided by Seller other than the representations and warranties made by Seller pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreementhereof. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.. ARTICLE FOUR MISCELLANEOUS SECTION

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.. ARTICLE FOUR MISCELLANEOUS

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations Borrower further represents and warranties warrants to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing DateLender that: (a) 4.2.1. The Securities Intermediary Borrower has all power and authority and has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority authorized to execute, deliver and perform its obligations under this AgreementAmendment, the Credit Agreement (as amended by this Amendment), and the other Loan Documents. 4.2.2. This Amendment, the Credit Agreement has been duly authorized(as amended by this Amendment), executed and delivered by the Securities Intermediary and constitutes the legal, other Loan Documents are valid and legally binding obligation obligations of the Securities IntermediaryBorrower, enforceable against the Securities Intermediary in accordance with its their respective terms, except as such enforceability may be limited by insolvency, applicable bankruptcy, reorganization insolvency or other laws relating to or affecting the enforcement of creditors’ ' rights and by general equitable principlesgenerally. 4.2.3. The execution, delivery and performance of this Amendment, the Credit Agreement (c) The consummation of the transactions contemplated byas amended by this Amendment), and the fulfillment of other Loan Documents by the terms of, this Agreement Borrower do not and will not (ia) conflict with, result in any a breach of any of the terms and terms, conditions or provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents under, or by-lawsresult in any violation of the organizational and operating agreements and documents, of the Borrower, or any material indenture, mortgage, deed of trust, loan agreement, guaranteeinstrument, lease financing agreement undertaking, judgment, decree, order, writ, injunction, statute, law, rule or similar agreement or instrument under regulation to which the Securities Intermediary Borrower is a party subject or by which the Securities Intermediary is boundassets and property of the Borrower are bound or affected, (iib) result in the creation or imposition of any Lien upon lien on any of assets or property now or hereafter owned by the Securities Intermediary’s properties Borrower pursuant to the terms provisions of any such mortgage, indenture, security agreement, contract, undertaking or other agreement or instrument (to which Borrower is a party, other than Liens contemplated by this Agreementthe obligations of the Borrower in favor of the Lender, (c) require any authorization, consent, license, approval or (iii) violate authorization of, or contravene other action by, notice or declaration to, registration with, any law governmental agency or authority or, to the Securities Intermediary’s knowledgeextent any such consent or other action may be required, any order rule it has been validly procured or regulation applicable to duly taken, or (d) result in the Securities Intermediary occurrence of an event materially adversely affecting the validity or enforceability of any Governmental Authority having jurisdiction over rights or remedies of the Securities Intermediary Lender or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s Borrower's ability to perform its obligations under this Agreementthe Credit Agreement and other Loan Documents. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association [●] under the laws of the United States[●]. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.. ARTICLE FOUR MISCELLANEOUS SECTION

Additional Representations and Warranties. The Securities Intermediary makes the following additional In addition to those representations and warranties contained in this Instrument, Borrower represents and warrants to the Initial Secured Party and the Assignee-Secured Party, that Lender as of the Closing Datefollows: (a1) The Securities Intermediary Borrower has been duly organized and is validly existing as a national banking association under the laws obtained or has caused any operator of the United StatesMortgaged Property to obtain all Licenses necessary to use, occupy or operate the Mortgaged Property for its Intended Use (such Licenses being in its own name or in the name of the operator of the Mortgaged Property or the management agent for the Mortgaged Property, if any, and in any event in the names of the persons and entities required by the applicable Governmental Authorities), and all such Licenses are in full force and effect. Borrower has provided Lender with complete and accurate copies of all Licenses. The Intended Use of the Mortgaged Property is in conformity with all certificates of occupancy and Licenses and any other restrictions or covenants affecting the Mortgaged Property. The Mortgaged Property contains all equipment, staff and supplies necessary to use and operate the Mortgaged Property for its Intended Use. (b2) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, Borrower and the fulfillment Mortgaged Property (and its operation) are in compliance with the applicable provisions of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-all laws, any material indentureregulations, mortgageordinances, deed of trust, loan agreement, guarantee, lease financing agreement orders or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary standards of any Governmental Authority having jurisdiction over the Securities Intermediary operation of the Mortgaged Property, including: (A) health care and fire safety codes; (B) laws regulating the preparation and serving of food; (C) laws regulating the handling and disposal of medical or biological waste; (D) the applicable provisions of all laws, rules, regulations and published interpretations of them to which the Borrower or the Mortgaged Property is subject by virtue of its propertiesIntended Use; and (E) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988. (3) Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any Governmental Authority and neither Borrower, any operator of the failure to comply with Mortgaged Property nor any management agent for the Mortgaged Property has received any notice from any Governmental Authority which may result in the imposition of a fine or interim or final sanction or would reasonably be expected to (i) have a material adverse effect on Borrower or the Securities Intermediaryoperation of the Mortgaged Property, (ii) result in the appointment of a receiver, (iii) affect Borrower’s or any operator of the Mortgaged Property’s ability to perform its obligations under this Agreementaccept and retain residents, or (iv) result in the revocation, transfer, surrender, suspension or other impairment of any License. (d4) There are Neither the execution and delivery of the Note, this Instrument or any other Loan Document, Borrower’s performance under the Loan Documents, the recordation of this Instrument, nor the exercise of any remedies by Lender, will adversely affect the Licenses. (5) Borrower is not a participant in any federal program under which any Governmental Authority may have the right to recover funds by reason of the advance of federal funds. (6) Borrower has received no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenednotice of, and to is not aware of, any violation of applicable antitrust laws. (7) If any existing management agreement or operating lease is terminated or Lender acquires the Securities Intermediary’s knowledge there are no investigations pending Mortgaged Property through foreclosure or threatenedotherwise, against none of the Borrower, Lender, any subsequent operator or affecting the Securities Intermediary management agent, or its property before any subsequent purchaser (through foreclosure or otherwise) must obtain a certificate of need from any Governmental Authority (other than giving of any notice required under the applicable state law or regulation) prior to applying for any License, so long as neither the type of service nor any unit compliment is changed. (8) Exhibit C attached to this Instrument lists all Material Contracts now in effect. (9) With regard to each Material Contract listed in Exhibit C: (i) asserting the invalidity Material Contract is assignable without the consent of the other party thereto or unenforceability Borrower and any operator of this Agreement, the Mortgaged Property has obtained express written consent to the assignment from the other party thereto; (ii) seeking no previous assignment of Borrower’s or any operator of the Mortgaged Property’s interest in the Material Contract has been made; (iii) the Material Contract is in full force and effect in accordance with its respective terms; and (iv) there is no default under the Material Contract. (10) Each Material Contract listed in Exhibit C provides that it is terminable upon not more than 30 days notice without the necessity of establishing cause and without payment of a penalty or termination fee by Borrower or its successors. (11) Except for termination statements and continuation statements, during the 45-day period prior to prevent the consummation date of this Instrument, there have been no UCC financing statements filed with respect to any of the transactions contemplated by this Agreement or (iii) seeking UCC Collateral listing as debtor the Borrower, any determination or ruling that would reasonably be expected to have a material adverse effect on the ability operator of the Securities Intermediary to perform its obligations under this AgreementMortgaged Property, any management agent for the Mortgaged Property or the Mortgaged Property’s common name.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations (a) MBFS USA, as Titling Trust Administrator and warranties to the Initial Secured Party Servicer, hereby represents and the Assignee-Secured Partywarrants that, that as in accordance with Section 5.07 of the Closing DateCollateral Agency Agreement: (ai) The Securities Intermediary has been duly MBVT (A) is organized and is validly existing as a national banking association under the laws of Delaware and (B) has assumed, by this Assumption Agreement, (1) the United States.due and punctual payment of principal of, and interest on, the Revolving Facility Balance and the Exchange Note Balance and (2) compliance by the Borrower with the provisions of the Collateral Agency Agreement and the performance or observance of every agreement and covenant of the Collateral Agency Agreement to be performed or observed by the Borrower, all as provided in the Collateral Agency Agreement; (ii) immediately after giving effect to the Merger Agreement and this Assumption Agreement, no Potential Facility Default, Facility Default, Potential Exchange Note Default or Exchange Note Default will have occurred and be continuing; (iii) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that the Merger Agreement will not cause (A) any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code and (B) the Borrower to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (iv) any action that is necessary to maintain the security interest granted under the Collateral Agency Agreement has been taken upon the filing in the office of the Secretary of State of the State of Delaware of the UCC Financing Statement attached hereto as Exhibit 2; (v) the Merger complies with Section 5.07 of the Collateral Agency Agreement and all conditions precedent provided for in the Collateral Agency Agreement relating to the Merger have been complied with (including, upon the filing of a report on Form 8-K in the form set forth as Exhibit 3 (which the Servicer will cause to be timely filed), any filing required by the Securities Exchange Act of 1934) and the Borrower has delivered to the Administrative Agent an Officer’s Certificate of MBFS USA and an Opinion of Counsel, each to that effect; and (b) The Securities Intermediary has the power MBFS USA, as Titling Trust Administrator, hereby further represents and authority to executewarrants that, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cSection 2.11(a)(v) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not DT Trust Agreement: (i) conflict withpursuant to this Assumption Agreement, result MBVT has assumed all of DT’s obligations under the DT Trust Agreement, and all Titling Trust Notes and all Titling Trust Note Indentures (as defined in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, DT Trust Agreement); (ii) result in the creation or imposition of any Lien upon any MBVT Trust Agreement contains provisions substantially identical to Section 2.3 and Section 2.11 of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this DT Trust Agreement) or ; (iii) violate or contravene any law or, the rating agencies and the trustees with respect to the outstanding Securities Intermediary’s knowledge, any order rule or regulation applicable (as complete listing of which is set forth on Exhibit 1) have received at least 5 days' prior notice of the Merger, (iv) the Merger does not conflict with the Certificate of Trust of DT Trust; and (v) immediately after giving effect to the Securities Intermediary Merger no default or event of any Governmental Authority having jurisdiction over the Securities Intermediary default by or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, relating to the Securities Intermediary’s knowledgeTitling Trust will have occurred and be continuing under any material agreement to which the Titling Trust is a party, threatenedincluding any Titling Trust Note Indenture, and or any agreement or other document pursuant to the Securities Intermediary’s knowledge there are no investigations pending which any Titling Trust Note or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.Security has been issued

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties In addition to the Initial Secured Party above, the Borrower and the Assignee-Secured Party, that Collateral Owner hereby represent and warrant to the Lender as at the date of this Agreement that: a. each of the Closing Date: (a) The Securities Intermediary has been Security Parties is duly organized and formed, is validly existing as a national banking association and in good standing under the laws of the United States. (b) The Securities Intermediary place of its incorporation and has the full power to carry on its business as it is now being conducted and authority to execute, deliver enter into and perform its obligations under the Principal Agreement and this Agreement and has complied with all statutory and other requirements relative to its business and does not have an established place of business in any part of the United Kingdom or the USA; b. all necessary licences, consents and authorities, governmental or otherwise under this Agreement and the Principal Agreement have been obtained and, as of the date of this Agreement. This , no further consents or authorities are necessary for any of the Security Parties to enter into this Agreement has been duly authorized, executed and delivered by the Securities Intermediary and or otherwise perform its obligations hereunder; c. this Agreement constitutes the legal, valid and binding obligation obligations of the Securities Intermediary, Security Parties thereto enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting ; d. the enforcement of creditors’ rights execution and by general equitable principles. (c) The consummation of the transactions contemplated bydelivery of, and the fulfillment performance of the terms of, provisions of this Agreement do not, and will not (i) conflict withcontravene any applicable law or regulation existing at the date hereof or any contractual restriction binding on any of the Security Parties or its respective constitutional documents; e. no action, suit or proceeding is pending or threatened against the Borrower and the Collateral Owner or its assets before any court, board of arbitration or administrative agency which could or might result in any breach material adverse change in the business or condition (financial or otherwise) of any of the terms Borrower or the other Security Parties; f. none of the Security Parties is not and provisions ofat the Effective Date will not be in default under any agreement by which it is or will be at the Effective Date bound or in respect of any financial commitment, or constitute obligation; g. the Guarantor maintains Corporate Liquidity (with or without notice or lapse including any contractually but undrawn parts of time or boththe Notes) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which in an amount equal to $500,000 per Fleet Vessel and an amount equal to $500,000 for the Securities Intermediary Vessel is a party or by which the Securities Intermediary is bound, (ii) result maintained in the creation or imposition of any Lien upon any Earnings Account outside of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.waiver period as aforementioned;

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws As of the United States. (b) The Securities Intermediary has Effective Date and the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its termsTranche A Closing Date, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cset forth on Schedule 4.23(a) The consummation of the transactions contemplated byDisclosure Letter, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant after giving effect to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement on the Tranche A Closing Date, (i) there is no Indebtedness for borrowed money owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or owed by Borrower or any of its Subsidiaries, other than Permitted Indebtedness, and (ii) all Indebtedness and any and all other amounts outstanding under the Existing Credit Agreement are paid or repaid in full, no further extension of credit is available thereunder and all Liens on or security interests in any and all collateral securing the payment of any such Indebtedness and any guaranty and other obligation of Borrower or any of its Subsidiaries thereunder in favor of any Person have been terminated. (b) As of each Closing Date other than the Tranche A Closing Date, there is no Indebtedness for borrowed money (x) owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or (iiiy) seeking owed by Borrower or any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of its Subsidiaries other than Permitted Indebtedness. (c) As of the Securities Intermediary to perform Effective Date and each applicable Closing Date, there are no Hedging Agreements. (d) Except as has been disclosed in the Exchange Act Documents, there is no registration rights agreement, investors’ rights agreement or other similar agreement relating to, governing or otherwise affecting the ownership of the capital stock or other equity ownership interests of any Credit Party. 5 AFFIRMATIVE COVENANTS Each Credit Party covenants and agrees that, until payment in full of all Obligations (other than inchoate indemnity obligations), each Credit Party shall, and shall cause each of its obligations under this AgreementSubsidiaries to: 5.

Additional Representations and Warranties. The Securities Intermediary makes A. In addition to the following additional other representations and warranties made herein, Landlord hereby represents and warrants to the Initial Secured Party and the Assignee-Secured Party, Tenant that as of the Closing Effective Date: (ai) The Securities Intermediary has the execution and delivery of this Lease by the signatory hereto on behalf of Landlord and the performance of this Lease by Landlord have been duly organized authorized by Landlord and this Lease is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power binding upon Landlord and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary Landlord in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cii) The consummation Landlord is the owner of fee simple title to the transactions contemplated byLand free of all liens, encumbrances, easements, restrictions, rights and the fulfillment conditions of the terms ofrecord, this Agreement will not except those (i) conflict withas shown on that certain ALTA Owner’s Policy of Title Insurance issued by Fidelity National Title Insurance Company dated July 31, result in any breach of any of the terms and provisions of2019, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is boundPolicy Number SC251906020R, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant Date Down Endorsement to the terms of any such agreement or instrument (other than Liens contemplated Loan Policy issued by this Agreement) or Fidelity National Title Insurance Company dated April 4, 2020, attached to Policy Number SC251906020R, (iii) violate or contravene any law orthe Declaration, to (iv) the Securities Intermediary’s knowledgeFILOT Agreement, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its propertiesand (v) other additional title exceptions, the failure to comply with if any, which would reasonably be expected to do not have a material adverse effect on Tenant’s operation of business in the Securities Intermediary’s ability to perform its Premises for the Intended Use and do not diminish any of the rights nor increase the obligations of Tenant under this AgreementLease. (diii) There are no Proceedings pending, or, to the Securities Intermediary▇▇▇▇▇▇▇▇’s actual knowledge, threatenedwithout investigation or inquiry, and to the Securities Intermediary’s knowledge there are no investigations condemnation or judicial proceedings, administrative actions or examinations, claims or demands of any type which have been instituted or which are pending against Landlord with respect to the Premises or threatenedany part thereof, and as of the Effective Date Landlord has received no written notice of any threatened condemnation or judicial proceedings, administrative actions or examinations regarding same. (iv) to ▇▇▇▇▇▇▇▇’s actual knowledge, without investigation or inquiry, there are no actions or proceedings pending against or affecting Landlord with respect to the Securities Intermediary or its property Premises before any Governmental Authority court or administrative agency which would result in any material adverse change in the condition of the Premises, and as of the Effective Date Landlord has received no written notice of any threatened action or proceeding against Landlord regarding same. (v) Landlord is duly organized and validly existing under the laws of the State of Delaware and is duly authorized to transact business in the State of South Carolina. (vi) the Premises will be delivered to Tenant free of any occupants, parties in possession, tenants, rights of first refusal, or other rights to occupy all or any portion of the Premises (other than those referenced in this Lease), and free of any service contracts or management agreements that would be binding on the Tenant after the Commencement Date. (vii) Landlord has not filed any proceeding or petition in, nor received written notice that any proceeding or petition has been filed against Landlord in bankruptcy or insolvency, or for reorganization or for the appointment of a receiver, custodian or trustee, or for the arrangement of debts under any state or federal statute relating to debtor protection or insolvency, and further that Landlord is not insolvent and will not be rendered insolvent by the consummation of the transaction contemplated by this Lease. (viii) Landlord has received no written notice of and has no actual knowledge of (a) any violations of any laws, including without limitation environmental laws, or (b) any suits or judgments threatened or pending relating to violations at the Premises or any portion of the Premises of any such laws. (ix) except with respect to the FILOT Agreement, that there are no special taxes or assessments pending and/or unpaid with respect to any improvements not yet completed on the Premises. As used in this Paragraph 34.A., any and all references to “▇▇▇▇▇▇▇▇’s knowledge,” “Landlord’s actual knowledge” or phrases of similar import shall mean the conscious awareness of facts or other relevant information, without investigation or inquiry, by ▇▇▇▇▇ ▇▇▇▇▇ as Senior Vice President – Development of ▇▇▇▇▇▇▇▇ Development Company. B. In addition to the other representations and warranties made herein, Tenant hereby represents and warrants to Landlord that as of the Effective Date: (i) asserting the invalidity or unenforceability execution and delivery of this Agreement, Lease by the signatory hereto on behalf of ▇▇▇▇▇▇ and the performance of this Lease by Tenant have been duly authorized by Tenant and this Lease is binding upon Tenant and enforceable against Tenant in accordance with its terms. (ii) seeking to prevent Tenant is duly incorporated and validly existing under the consummation of any laws of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected State of Delaware, and is duly authorized to have a material adverse effect on transact business in the ability State of the Securities Intermediary to perform its obligations under this AgreementSouth Carolina.

Additional Representations and Warranties. The Securities Intermediary makes the following additional In addition to those representations and warranties contained in this Instrument, Borrower represents and warrants to the Initial Secured Party and the Assignee-Secured Party, that Lender as of the Closing Datefollows: (a1) The Securities Intermediary Borrower has been duly organized and is validly existing as a national banking association under the laws obtained or has caused any operator of the United StatesMortgaged Property to obtain all Licenses necessary to use, occupy or operate the Mortgaged Property for its Intended Use (such Licenses being in its own name or in the name of the operator of the Mortgaged Property or the management agent for the Mortgaged Property, if any, and in any event in the names of the persons and entities required by the applicable Governmental Authorities), and all such Licenses are in full force and effect. Borrower has provided Lender with complete and accurate copies of all Licenses. The Intended Use of the Mortgaged Property is in conformity with all certificates of occupancy and Licenses and any other restrictions or covenants affecting the Mortgaged Property. The Mortgaged Property contains all equipment, staff and supplies necessary to use and operate the Mortgaged Property for its Intended Use. (b2) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, Borrower and the fulfillment Mortgaged Property (and its operation) are in compliance with the applicable provisions of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-all laws, any material indentureregulations, mortgageordinances, deed of trust, loan agreement, guarantee, lease financing agreement orders or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary standards of any Governmental Authority having jurisdiction over the Securities Intermediary operation of the Mortgaged Property, including: (A) health care and fire safety codes; (B) laws regulating the preparation and serving of food; (C) laws regulating the handling and disposal of medical or biological waste; (D) the applicable provisions of all laws, rules, regulations and published interpretations of them to which the Borrower or the Mortgaged Property is subject by virtue of its propertiesIntended Use; and (E) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988. (3) Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any Governmental Authority and neither Borrower, any operator of the failure to comply with Mortgaged Property nor any management agent for the Mortgaged Property has received any notice from any Governmental Authority which may result in the imposition of a fine or interim or final sanction or would reasonably be expected to (i) have a material adverse effect on Borrower or the Securities Intermediaryoperation of the Mortgaged Property, (ii) result in the appointment of a receiver, (iii) affect B▇▇▇▇▇▇▇’s or any operator of the Mortgaged Property’s ability to perform its obligations under this Agreementaccept and retain residents, or (iv) result in the revocation, transfer, surrender, suspension or other impairment of any License. (d4) There are Neither the execution and delivery of the Note, this Instrument or any other Loan Document, B▇▇▇▇▇▇▇’s performance under the Loan Documents, the recordation of this Instrument, nor the exercise of any remedies by L▇▇▇▇▇, will adversely affect the Licenses. (5) Borrower is not a participant in any federal program under which any Governmental Authority may have the right to recover funds by reason of the advance of federal funds. (6) B▇▇▇▇▇▇▇ has received no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenednotice of, and to is not aware of, any violation of applicable antitrust laws. (7) If any existing management agreement or operating lease is terminated or Lender acquires the Securities Intermediary’s knowledge there are no investigations pending Mortgaged Property through foreclosure or threatenedotherwise, against none of the Borrower, Lender, any subsequent operator or affecting the Securities Intermediary management agent, or its property before any subsequent purchaser (through foreclosure or otherwise) must obtain a certificate of need from any Governmental Authority (other than giving of any notice required under the applicable state law or regulation) prior to applying for any License, so long as neither the type of service nor any unit compliment is changed. (8) Exhibit C attached to this Instrument lists all Material Contracts now in effect. (9) With regard to each Material Contract listed in Exhibit C: (i) asserting the invalidity Material Contract is assignable without the consent of the other party thereto or unenforceability Borrower and any operator of this Agreement, the Mortgaged Property has obtained express written consent to the assignment from the other party thereto; (ii) seeking no previous assignment of Borrower’s or any operator of the Mortgaged Property’s interest in the Material Contract has been made; (iii) the Material Contract is in full force and effect in accordance with its respective terms; and (iv) there is no default under the Material Contract. (10) Each Material Contract listed in Exhibit C provides that it is terminable upon not more than 30 days notice without the necessity of establishing cause and without payment of a penalty or termination fee by Borrower or its successors. (11) Except for termination statements and continuation statements, during the 45-day period prior to prevent the consummation date of this Instrument, there have been no UCC financing statements filed with respect to any of the transactions contemplated by this Agreement or (iii) seeking UCC Collateral listing as debtor the Borrower, any determination or ruling that would reasonably be expected to have a material adverse effect on the ability operator of the Securities Intermediary to perform its obligations under this AgreementMortgaged Property, any management agent for the Mortgaged Property or the Mortgaged Property’s common name.

Additional Representations and Warranties. The Securities Intermediary makes Borrower, and as applicable, the following additional representations Guarantors, hereby reaffirm, restate and incorporate by this reference all of their respective representations, warranties and covenants made in the Loan Agreement (including as amended hereby), as if the same were made as of this date and with reference to the Initial Secured Party Loan Agreement as amended hereby. In addition, Borrower and, as applicable, the Guarantors, jointly and the Assignee-Secured Partyseverally, that represent, warrant and covenant as of the Closing Datefollows: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered authorized by the Securities Intermediary Borrower and constitutes is the legal, valid and binding obligation of the Securities IntermediaryBorrower, enforceable against the Securities Intermediary it in accordance with its terms; and, except with respect to Section 8 of this Agreement and as such enforceability may be limited by insolvencyotherwise applicable with respect to the Guarantors, bankruptcythis Agreement is the legal, reorganization or other laws relating to or affecting valid and binding obligation of the enforcement of creditors’ rights Guarantors, enforceable against them, jointly and by general equitable principles.severally, in accordance with its terms; (cb) The consummation execution, delivery and performance of this Agreement and the documents, instruments and materials to be delivered in connection herewith and the transactions contemplated by, hereby do not and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents under, or by-lawsresult in the creation of any lien, charge or encumbrance upon the Collateral or the Resort (except in favor of Lender) pursuant to, any material provision of law, or any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under to which the Securities Intermediary Borrower or the Guarantors is a party or by which the Securities Intermediary is boundBorrower or the Guarantors may be bound or affected, including, without limitation, with respect to the Heller Loan or the Colonial Ba▇▇ ▇▇▇n. (iic) result in Borrower and the creation Guarantors hereby represent, warrant and confirm that there are no Defaults or imposition Events of any Lien upon any of the Securities Intermediary’s properties Default pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform Loan Documents; that Lender has fully performed its obligations under this Agreementthe Loan Documents, and that neither the Borrower nor the Guarantors have any defenses, set-offs, claims, counterclaims or recoupments against Lender or with respect to the Loan. (d) There are has been no Proceedings pending, or, to material adverse change in the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation financial condition of any of the transactions contemplated by this Agreement Resort, the Borrower or the Guarantors, respectively, since the Closing Date. (iiie) seeking The collateral security for the Heller Loan does not and will ▇▇▇ ▇▇cumber any determination properties, rights, interests or ruling benefits included among the Collateral. (f) The escrow accounts established under the Sales Escrow Agreements for use in connection with TFC Financed Escrow Sales are, as to VBSI I and VBSI II, SunTrust Account No. 0417-006224530, and as to VBSI III, SunTrust Account No. 0417-006232395, each established and maintained at SunTrust Bank, N.A. in Orlando, Florida (such accounts, respectively, are sometimes called, individually or collectively, the "TFC Escrow Sales Accounts"). The TFC Escrow Sales Accounts will be used for Purchaser deposits and payments in escrow in respect of all TFC Financed Escrow Sales, and such Accounts will not be closed or changed without the prior written consent of Lender. At Lender's request, Borrower will provide Lender with evidence reflecting that would the records pertaining to the TFC Escrow Sales Accounts reasonably be expected identify them as relating to have a material adverse effect on TFC Financed Escrow Sales. (g) Borrower and the ability Guarantors hereby reaffirm their respective obligations, agreements and undertakings as set forth in the Loan Documents, and acknowledge that the Obligations, or with respect to the Guarantors, the Guaranteed Obligations def-med in the Guaranty, are the valid, legally binding and enforceable obligations of the Securities Intermediary to perform its obligations under this AgreementBorrower, and the Guarantors, respectively.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws As of the United States. (b) The Securities Intermediary has Effective Date and the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its termsTranche A Closing Date, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cset forth on Schedule 4.24(a) The consummation of the transactions contemplated byDisclosure Letter, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant after giving effect to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (i) there is no Indebtedness for borrowed money owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or owed by Borrower or any of its Subsidiaries, other than Permitted Indebtedness, and (ii) all Indebtedness and any and all other amounts outstanding under the Existing Credit Agreement are paid or repaid in full, no further extension of credit is available thereunder and all Liens on or security interests in any and all collateral securing the payment of any such Indebtedness and any guaranty and other obligation of Borrower or any of its Subsidiaries thereunder in favor of any Person have been terminated. (b) As of each Closing Date other than the Tranche A Closing Date, there is no Indebtedness for borrowed money (x) owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or (iiiy) seeking owed by Borrower or any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of its Subsidiaries other than Permitted Indebtedness. (c) As of the Securities Intermediary to perform Effective Date and Tranche A Closing Date, except as set forth on Schedule 4.23(c) of the Disclosure Letter, neither Borrower nor any of its obligations under Subsidiaries are party to, or otherwise bound by, any Hedging Agreements. (d) As of any Closing Date other than the Tranche A Closing Date, neither Borrower nor any of its Subsidiaries are party to, or otherwise bound by, any Hedging Agreements, except for Hedging Agreements expressly permitted by this Agreement. (e) Except as has been disclosed in the Exchange Act Documents, as of each Closing Date, there is no registration rights agreement, investors’ rights agreement or other similar agreement relating to, governing or otherwise affecting the ownership of any Equity Interest that is required to be pledged pursuant to the Collateral Documents.

Additional Representations and Warranties. The Securities Intermediary makes Each of the following additional Company and the Subsidiary Guarantor jointly and severally represents and warrants (each of which such representations and warranties to shall be deemed repeated upon the Initial Secured Party making of a request for a Revolving Credit Advance and the Assignee-Secured Party, that made as of the Closing Datetime of each Revolving Credit Advance made hereunder), as applicable, as follows: (a) The Securities Intermediary has been Each of the Company and the Subsidiary Guarantor is a corporation duly organized incorporated and is validly existing as a national banking association under the laws of the United Statesjurisdiction of its incorporation and duly qualified and in good standing in every other state or jurisdiction in which the nature of the Company’s or the Subsidiary Guarantor’s business requires such qualification. (b) The Securities Intermediary has execution, delivery and performance of this Agreement and the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has Ancillary Agreements (i) have been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation (ii) are not in contravention of the Securities IntermediaryCompany’s nor the Subsidiary Guarantor’s certificate of incorporation, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization by-laws or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under undertaking to which the Securities Intermediary Company or the Subsidiary Guarantor is a party or by which the Securities Intermediary Company or the Subsidiary Guarantor is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or bound and (iii) violate or contravene any law orare within the Company’s and the Subsidiary Guarantor’s corporate powers. (c) This Agreement and the Ancillary Agreements executed and delivered by the Company and the Subsidiary Guarantor are the Company’s and the Subsidiary Guarantor’s legal, to the Securities Intermediary’s knowledgevalid and binding obligations, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply enforceable in accordance with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreementtheir terms. (d) There Exhibit 12(d) sets forth both the Company’s name and the Subsidiary Guarantor’s name as it appears in official filing in the state of its incorporation, the type of entity of each, the organizational identification number issued by the Company’s and the the Subsidiary Guarantor’s state of incorporation or a statement that no such number has been issued, the Company’s and the Subsidiary Guarantor’s state of incorporation, and the location of the Company’s the Subsidiary Guarantor’s chief executive office, corporate offices, warehouses, other locations of Collateral and locations where records with respect to Collateral are kept (including in each case the county of such locations) and, except as set forth in such Exhibit 12(d), such locations have not changed during the preceding twelve months. As of the Closing Date, during the prior two years, except as set forth in Exhibit 12(d), neither the Company nor the Subsidiary Guarantor has been known as or conducted business in any other name (including trade names). The Company has only one state of incorporation. (e) Based upon the Employee Retirement Income Security Act of 1974 (“ERISA”), and the regulations and published interpretations thereunder: (i) the Company has not engaged in any Prohibited Transactions as defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code, as amended; (ii) the Company has met all applicable minimum funding requirements under Section 302 of ERISA in respect of its plans; (iii) the Company has no Proceedings pendingknowledge of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any employee benefit plan(s); (iv) the Company has no fiduciary responsibility for investments with respect to any plan existing for the benefit of persons other than the Company’s employees; and (v) the Company has not withdrawn, orcompletely or partially, from any multi-employer pension plan so as to incur liability under the Multiemployer Pension Plan Amendments Act of 1980. (g) To the best of its knowledge, there is no pending or threatened litigation, action or proceeding which involves the possibility of having a Material Adverse Effect. (h) As of the date of issuance, all balance sheets and income statements which have been delivered to Laurus fairly, accurately and properly state the Company’s and the Subsidiary Guarantor’s financial condition on a basis consistent with that of previous financial statements and there has been no material adverse change in the Company’s or the Subsidiary Guarantor’s financial condition as reflected in such statements since the balance sheet date of the statements last delivered to Laurus and such statements do not fail to disclose any fact or facts which might have a Material Adverse Effect on the Company’s or the Subsidiary Guarantor’s financial condition. (i) Each of the Company and the Subsidiary Guarantor possesses all of the Intellectual Property necessary to conduct its business. To the best of its knowledge, there has been no assertion or claim of violation or infringement with respect to any Intellectual Property. Exhibit 12(i) sets forth all Intellectual Property of the Company. (j) Neither this Agreement, the exhibits and schedules hereto, the Ancillary Agreements nor any other document delivered by the Company or Guarantor Subsidiary to Laurus or its attorneys or agents in connection herewith or therewith or with the transactions contemplated hereby or thereby, contain, on the date when made, any untrue statement of a material fact nor omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances in which they are made, not misleading. Any financial projections and other estimates provided to Laurus by the Company were based on the Company’s experience in the industry and on assumptions of fact and opinion as to future events which the Company, at the date of the issuance of such projections or estimates, believed to be reasonable. As of the date hereof no facts have come to the attention of the Company that would, in its opinion, require the Company to revise or amplify in any material respect the assumptions underlying such projections and other estimates or the conclusions derived there from. (k) The issuance of the Note will be exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Securities. (l) The common stock of the Company is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company has timely filed all proxy statements, reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act. The Company has furnished Laurus with copies of (i) its Annual Report on Form 10-K for the fiscal year ended December 31, 2002 and (ii) its Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2003, (the “SEC Reports”). Each SEC Report was, at the time of its filing, in substantial compliance with the requirements of its respective form and none of the SEC Reports, nor the financial statements (and the notes thereto) included in the SEC Reports, as of their respective filing dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the Securities Intermediaryextent they may not include footnotes or may be condensed) and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments) Notwithstanding the immediately foregoing, Laurus acknowledges and understands that the Company has engaged Squar ▇▇▇▇▇▇ to be its independent auditor to conduct a re-auditing of its 2001 financial statements (the “Re-Audit”). The Re-Audit is being conducted because KPMG, the Company’s previous independent auditors, would not consent to the inclusion of its audit report on the Company’s 2001 annual report on Form 10-K. With this acknowledgement, Laurus agrees that, if the Re-Audit is completed by September 30, 2003 and the 2001 Form 10-K is filed promptly thereafter, the Re-Audit will not give rise to a breach of any representation or warranty hereunder. (m) The Company’s common stock is listed for trading on the OTC Bulletin Board and satisfies all requirements for the continuation of such listing. The Company has not received any notice that its common stock will be delisted from the OTC Bulletin Board or that its common stock does not meet all requirements for the continuation of such listing. (n) Neither the Company, nor any of its affiliates, nor, to the best of its knowledge, threatenedany person acting on its or their behalf, and has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would cause the offering of the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Intermediary Act which would prevent the Company from selling the Securities pursuant to Rule 506 under the Securities Act, or any applicable exchange-related stockholder approval provisions. Nor will the Company or any of its property before affiliates or subsidiaries take any Governmental Authority action or steps that would cause the offering of the Securities to be integrated with other offerings. (io) asserting The Securities are restricted securities as of the invalidity or unenforceability date of this Agreement, (ii) seeking to prevent . The Company will not issue any stop transfer order or other order impeding the consummation sale and delivery of any of the transactions contemplated Securities at such time as the Securities are registered for public sale or an exemption from registration is available, except as required by this Agreement federal securities laws. (p) The Company understands the nature of the Securities being issued hereunder and recognizes that they may have a potential dilutive effect. The Company specifically acknowledges that its obligation to issue the shares of Common Stock upon conversion of the Note is binding upon the Company and enforceable regardless of the dilution such issuance may have on the ownership interests of other shareholders of the Company. (q) There is no agreement that has not been filed with the SEC as an exhibit to a registration statement or (iii) seeking any determination or ruling that would reasonably be expected to other applicable form the breach of which could have a material and adverse effect on as to the Company and its subsidiaries, or would prohibit or otherwise interfere with the ability of the Securities Intermediary Company to enter into and perform any of its obligations under this AgreementAgreement or the Registration Rights Agreement executed by the Company in favor of Laurus in any material respect.

Additional Representations and Warranties. The Securities Intermediary makes 7.3.1 Archemix represents and warrants to Ophthotech that Archemix has the following additional representations right to grant the license granted to Ophthotech on the terms set forth herein; 7.3.2 Archemix represents and warranties warrants to the Initial Secured Party and the Assignee-Secured PartyOphthotech that, that except as previously disclosed to Ophthotech, as of the Closing Date:Restatement Date and with no further duty to update (except as otherwise stated): (a) The Securities Intermediary has been duly organized and to its Knowledge, there is validly existing as a national banking association under no litigation pending or threatened that alleges that (i) the laws practice of the United States.SELEX Process and/or the use of SELEX Technology as contemplated by this Agreement infringes the Patent Rights of any Third Party, or (ii) the Licensed Patent Rights are invalid or unenforceable; or (iii) the use of the Licensed Patent Rights or Licensed Technology as contemplated by this Agreement infringes the Patent Rights of any Third Party; and (b) The Securities Intermediary the Archemix-Gilead License Agreement, as heretofore delivered by Archemix to Ophthotech, represents the complete agreement and understanding between Gilead Sciences, Inc. and Archemix relating to the Licensed Patent Rights which are the subject of the Archemix-Gilead License Agreement; the Archemix-Gilead License Agreement has not been modified, supplemented or amended, other than by amendments thereto provided to Ophthotech prior to the power Original Agreement Date; the Archemix-Gilead License Agreement is in full force and authority effect, all payments to executedate required to be made thereunder by Archemix have been made, deliver and perform Archemix is in compliance in all material respects with its obligations under this Agreement. This Agreement has been duly authorized, executed thereunder. 7.3.3 Archemix represents and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its termswarrants to Ophthotech that, except as such enforceability may be limited by insolvencywith respect to Patent Rights that have been cancelled, bankruptcywithdrawn, reorganization abandoned or other laws relating to rejected, revoked, held invalid or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions ofdeclared or rendered unpatentable or unenforceable through disclaimer or otherwise, or constitute lost through an interference proceeding, all Patent Rights and technology licensed to Ophthotech under the Original Agreement are Controlled (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result as defined in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any by Archemix as of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementRestatement Date.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized All financial statements and is validly existing as a national banking association under related financial information heretofore and hereafter delivered to any Lender or the laws Administrative Agent by Upper Tier Borrower, including, without limitation, information relating to the financial condition of Upper Tier Borrower fairly and accurately represent the financial condition of the United Statessubject thereof and have been prepared (except as noted therein) in accordance with generally accepted accounting principles consistently applied. (b) The Securities Intermediary Upper Tier Borrower is in compliance in all material respects with, or exempt from, all applicable laws, rules, regulations and orders applicable to it, including without limitation all applicable labor, environmental, tax and employment laws, and has the power obtained all licenses and authority to execute, deliver and perform its obligations permits required under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as any such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principleslaws. (c) The consummation Upper Tier Borrower has paid and discharged before the same has become delinquent all applicable taxes for which Upper Tier Borrower is liable or to which its income or property is subject, except any taxes the validity or amount of which is being contested in good faith by Upper Tier Borrower in appropriate proceedings with provision having been made to the transactions contemplated bysatisfaction of Administrative Agent for the payment thereof in the event the contest is determined adversely to Upper Tier Borrower. Upper Tier Borrower is not subject to, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-lawsnor are there pending, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreementtax audits. (d) There are no Proceedings Upper Tier Borrower is not the subject of any pending, or, or to the Securities IntermediaryUpper Tier Borrower’s knowledge, knowledge threatened, bankruptcy, receivership, insolvency or creditors’ rights Proceedings, whether voluntary or involuntary. (e) Upper Tier Borrower is not an “investment company” as that term is defined in, and is not otherwise subject to regulation under, the Securities Intermediary’s knowledge there are no investigations pending or threatenedInvestment Company Act of 1940, against or affecting as amended, and Upper Tier Borrower is not a “holding company” as that term is defined in, and is not otherwise subject to regulation under, the Securities Intermediary or its property before any Governmental Authority Public Utility Holding Company Act of 1935, as amended. (if) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of Neither Upper Tier Borrower nor any of the transactions contemplated by this Agreement Upper Tier Borrower’s Affiliates has any outstanding publicly-traded Debt or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreementequity.

Additional Representations and Warranties. The Securities Intermediary makes Guarantor hereby makes, as of the following additional date hereof and only as to itself, each of the representations and warranties set forth in Section 5 of the Note Agreement that is applicable to the Initial Secured Party Guarantor. All payments whatsoever under this Guaranty Agreement will be made by the Guarantor free and the Assignee-Secured Partyclear of, that as and without liability for withholding or deduction for or on account of, any present or future tax (whether income, documentary, sales, stamp, registration, issue, capital, property, excise or otherwise), duty, assessment, levy, impost, fee, compulsory loan, charge or withholding (a “Tax”) of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States. States (bor any political subdivision or taxing authority of or in such jurisdiction) The Securities Intermediary has (a “Taxing Jurisdiction”), unless the power and authority withholding or deduction of such Tax is compelled by law. If any deduction or withholding for any Tax of a Taxing Jurisdiction shall at any time be required in respect of any amounts to execute, deliver and perform its obligations be paid by the Guarantor under this Guaranty Agreement. This Agreement has been duly authorized, executed the Guarantor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except pay to each holder such additional amounts as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating necessary in order that the net amounts paid to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties such holder pursuant to the terms of this Guaranty Agreement after such deduction, withholding or payment (including, without limitation, any required deduction or withholding of Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Guaranty Agreement before the assessment of such Tax, provided that no payment of any additional amounts shall be required to be made for or on account of: any Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof, including, without limitation, such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a Tax that would not have been imposed but for the Guarantor, after the date of this Guaranty Agreement, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Guaranty Agreement are made to, the Taxing Jurisdiction imposing the relevant Tax; any Tax that would not have been imposed but for the delay or failure by such holder (following a written request by the Guarantor) in the filing with the Guarantor or the relevant Taxing Jurisdiction of Forms (as defined below) that are required to be filed by such holder to 3 To be included if the Guarantor is domiciled in a non-U.S. jurisdiction. avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b) upon the good faith completion and submission of such Forms (including refilings or renewals of filings) as may be specified in a written request of the Guarantor no later than 60 days after receipt by such holder of such written request (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); any Tax that would not have been so imposed but for the presentation of a Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or after the date on which payment thereof is duly provided for, whichever is later; or any combination of clauses (a), (b) and (c) above; and provided further that in no event shall the Guarantor be obligated to pay such additional amounts (i) to any holder not resident in the United States of America or any other jurisdiction in which a holder is resident for tax purposes on the date of this Guaranty Agreement in excess of the amounts that the Guarantor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) to any holder of a Note registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant Tax and the Guarantor shall have given timely notice of such law or interpretation to such holder. By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and deliver to or as reasonably directed by the Guarantor all such forms, certificates, documents and returns provided to such holder by the Guarantor (collectively, together with instructions for completing the same, “Forms”) required to be filed by or on behalf of such holder in order to avoid or reduce any Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the United States and such Taxing Jurisdiction and (y) provide the Guarantor with such information with respect to such holder as the Guarantor may reasonably request in order to complete any such agreement Forms, provided that nothing in this Section 9 shall require any holder to provide information with respect to any such Form or instrument otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of tax return or other information that is confidential or proprietary to such holder, and provided, further, that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Guarantor or mailed to the appropriate taxing authority (which in the case of any Form which requires that it be submitted to the United States Internal Revenue Service as a condition to its effectiveness in the Taxing Jurisdiction shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Guarantor (which request shall be accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to the relevant interest payment date. On or before the date of this Guaranty Agreement the Guarantor shall have furnished each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in [ ] pursuant to clause (b) of the second paragraph of this Section 9, if any, and in connection with the transfer of any Note the Guarantor will furnish the transferee of such Note with copies of any Form and English translation then required. If any payment is made by the Guarantor to or for the account of the holder of any Note after deduction for or on account of any Taxes, and increased payments are made by the Guarantor pursuant to this Section 9, then, if such holder at its sole discretion determines that it has received or been granted a refund of such Taxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Guarantor such amount as such holder shall, in its sole discretion, determine to be attributable to the relevant Taxes or deduction or withholding. Nothing herein contained shall interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Tax in priority to any other claims, reliefs, credits or deductions available to it or (other than Liens contemplated as set forth in clause (b) above) oblige any holder of any Note to disclose any information relating to its tax affairs or any computations in respect thereof. The Guarantor will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Guarantor of any Tax in respect of any amounts paid under this Guaranty Agreement, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Guarantor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note. If the Guarantor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Tax in respect of which the Guarantor would be required to pay any additional amount under this Section 9, but for any reason does not make such deduction or withholding with the result that a liability in respect of such Tax is assessed directly against the holder of any Note, and such holder pays such liability, then the Guarantor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Guarantor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction. If the Guarantor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (iiiother than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Guarantor (which shall specify in reasonable detail and supply the refund forms to be filed) violate use reasonable efforts to complete and deliver such refund forms to or contravene any law oras directed by the Guarantor, subject, however, to the Securities Intermediary’s knowledge, any order rule same limitations with respect to Forms as are set forth above. The obligations of the Guarantor under this Section 9 shall survive the payment or regulation applicable to the Securities Intermediary transfer of any Governmental Authority having jurisdiction over Note and the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability provisions of this Agreement, (ii) seeking Section 9 shall also apply to prevent the consummation of any successive transferees of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementNotes.]

Additional Representations and Warranties. The Securities Intermediary makes Originator and the following additional Seller hereby represent and warrant, as of the SLP Closing Date, that (i) the SLP Loan List and the information contained in the Borrowing Notice delivered pursuant to Section 2.2 is an accurate and complete listing in all material respects of all Assets purchased from the SLP Financing Originator in the Asset Pool as of the Cut-Off Date and the information contained therein with respect to the identity of such Assets and the amounts owing thereunder is true and correct in all material respects as of the related Cut-Off Date, (ii) each such Loan that is part of the Borrowing Base is an Eligible Loan as of such date, (iii) each such Asset is free and clear of any Lien of any Person (other than Permitted Liens) and in compliance with all Applicable Laws, (iv) with respect to each such Asset, all consents, licenses, approvals, votes, authorizations, registrations or declarations of any Governmental Authority or any Person (including, without limitation, any indenture trustee or noteholder) required to be obtained, effected or given by or to the Financing Originator, the Originator and the Seller in connection with the transfer of an ownership interest in such Assets from the SLP Financing Originator to the Originator, from the Originator to the Seller and from the Seller to the Administrative Agent, as agent for the Secured Parties, have been duly obtained, effected or given and are in full force and effect, (v) the representations and warranties set forth in Section 4.2(a) are true and correct with respect to each such Asset, and (vi) the Initial Secured Party SLP Acquisition Agreement (x) was duly authorized and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and parties thereto, (y) constitutes the legal, valid and binding obligation of the Securities Intermediaryparties thereto, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cz) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will does not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation Contractual Obligation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this AgreementSLP Financing Originator. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes In addition to the following additional continuing representations and warranties heretofore or hereafter made by Borrower to Congress pursuant to the Initial Secured Party Financing Agreements, Borrower hereby represents and warrants and covenants to Congress as follows (which representations, warranties and covenants are continuing and shall survive the Assignee-Secured Party, that as execution and delivery hereof and shall be incorporated into and made a part of the Closing Date:Financing Agreements): (a) The Securities Intermediary Purchase Agreements and the transactions contemplated thereunder have been duly executed, delivered and performed in accordance with their terms by the respective parties thereto in all respects, including the fulfillment (not merely the waiver) of all conditions precedent set forth therein. After giving effect to the terms of the Purchase Agreements, Transcrypt has good title to all of the issued and outstanding shares of the Capital Stock of Borrower. All of the Indebtedness of Borrower to NorAm and Securicor has been duly organized cancelled and is validly existing as a national banking association under the laws of the United StatesBorrower has no other or further obligations or liabilities to NorAm or Securicor. (b) The Securities Intermediary has All actions and proceedings required by the power Purchase Agreements, applicable law or regulation (including, but not limited to, compliance with the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇i-Trust Improvements Act of 1976, as amended) have been taken and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has the transactions required thereunder have been duly authorized, executed and delivered by the Securities Intermediary validly taken and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principlesconsummated. (c) The No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Purchase Agreements and no governmental or other action or proceeding has been threatened or commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Purchase Agreements. (d) Borrower has delivered, or caused to be delivered, to Congress, true, correct and complete copies of the Purchase Agreements. Set forth in Exhibit C hereto is a correct and complete list of the Purchase Agreements and all other agreements, documents and instruments existing as of the date hereto between Borrower, any of its Affiliates, Transcrypt and any of its Affiliates or NorAm or Securicor. (e) All of the issued and outstanding shares of Capital Stock of Borrower are directly and beneficially owned and held by Transcrypt and all of such shares have been duly authorized and are fully paid and non-assessable, free and clear of all claims, liens, pledges and encumbrances of any kind. (f) Transcrypt has, on or before the date hereof, made a cash equity contribution to Borrower in the amount of $2,000,000 as consideration for shares of Capital Stock of Borrower, the proceeds of which have been delivered to Congress for application to the obligations in such order and manner as Congress shall determine. (g) Neither the execution and delivery of the Purchase Agreements, nor the consummation of the transactions contemplated byby the Purchase Agreements, and nor compliance with the fulfillment of the terms ofprovisions thereof, this Agreement will not (i) conflict with, shall result in the creation nor imposition of any breach of lien, charge or encumbrance upon any of the terms Collateral. (h) Neither the execution and delivery of the Purchase Agreements nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof, has violated or shall violate any law or regulation or any order or decree of any court or governmental instrumentality in any respect or does or shall conflict with or result in the breach of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-lawsin any respect under, any material indenture, mortgage, deed of trust, loan security agreement, guarantee, lease financing agreement or similar agreement or instrument under to which the Securities Intermediary Borrower is a party or by which the Securities Intermediary is may be bound, or violate any provision of the Certificate of Incorporation or By-Laws of Borrower. (iii) result in the creation Borrower and EFJ Partners have obtained or imposition received all required consents and approvals of any Lien upon any persons other than Congress in connection with the transfer of the Securities Intermediary’s properties shares of Capital Stock of Borrower by EFJ Partners to Transcrypt pursuant to the terms Transcrypt Purchase Agreements, the purchase and cancellation of any such agreement or instrument (the Indebtedness of Borrower to NorAm and Securicor and the other than Liens transactions contemplated by this Agreementthe Amendment. (j) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary The failure of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure Borrower to comply with which would reasonably be expected the covenants, conditions and agreements contained herein or in any other agreement, document or instrument at any time executed and/or delivered by Borrower with, to have a material adverse effect on or in favor of Congress shall constitute an Event of Default under the Securities Intermediary’s ability to perform its obligations under this AgreementFinancing Agreements. (dk) There are no Proceedings pending, or, to This Amendment has been duly executed and delivered by Borrower and is in full force and effect as of the Securities Intermediary’s knowledge, threateneddate hereof, and to the Securities Intermediary’s knowledge there are no investigations pending or threatenedagreements and obligations of Borrower contained herein constitute legal, valid and binding obligations of Borrower enforceable against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementBorrower in accordance with their respective terms.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations Senior Tier Mezzanine Borrower hereby represents and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Datewarrants that: (a) The Securities Intermediary has been duly organized Existing Loan Documents are listed on Exhibit A and is validly existing as a national banking association under there are no other agreements between Senior Tier Mezzanine Lender and Senior Tier Mezzanine Borrower, any guarantor, manager, franchisor or any of their respective affiliates evidencing or securing the laws of the United States.Mezzanine Loan. The Existing Loan Documents are unmodified and in full force and effect (b) Since the Closing Date, no Default or Event of Default under any of the Existing Loan Documents has occurred. (c) The Securities Intermediary Existing Mezzanine Loan has not, since the power and authority to executedate of its origination, deliver and perform its obligations under this Agreement. This Agreement been 30 days or more past due in respect of any debt service payments required in any of the Existing Loan Documents. (d) Senior Tier Mezzanine Borrower has not been a debtor in any state or federal bankruptcy or insolvency proceeding. (e) No taking has been duly authorizedcommenced or, to Senior Tier Mezzanine Borrower's knowledge, is contemplated with respect to all or any portion of any Property or for the relocation of roadways providing access to any Property. (f) The Existing Loan Documents, as hereby amended (and as amended by that certain First Amendment to Loan and Security Agreement and Other Loan Documents, dated as of the date hereof, entered into by and between BRE/Park Place L.L.C., a Delaware limited liability company, and German American Capital Corporation), executed and delivered by Senior Tier Mezzanine Borrower and, as applicable, Guarantor, in connection with the Securities Intermediary and constitutes Senior Tier Mezzanine Loan, including, without limitation, the Senior Tier Mezzanine Note, are the legal, valid and binding obligation obligations of the Securities IntermediarySenior Tier Mezzanine Borrower and, as applicable, Guarantor, enforceable against the Securities Intermediary Senior Tier Mezzanine Borrower and, as applicable, Guarantor, in accordance with its their terms, except as such enforceability may be limited by insolvency, subject only to bankruptcy, reorganization or insolvency and other laws relating limitations on creditor=s rights generally and to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation . Such Existing Loan Documents are not subject to any right of rescission, setoff, counterclaim or defense by the transactions contemplated bySenior Tier Mezzanine Borrower, and including the fulfillment defense of usury, nor will the terms of, this Agreement will not (i) conflict with, result in any breach operation of any of the terms and provisions ofof the Senior Tier Mezzanine Note or such other Existing Loan Documents, as hereby amended, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition exercise of any Lien upon rights thereunder, render same unenforceable against Senior Tier Mezzanine Borrower, in whole or in part, or subject to any right of rescission, setoff, counterclaim, or defense by Senior Tier Mezzanine Borrower, including the Securities Intermediary’s properties pursuant to the terms defense of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenedusury, and to the Securities Intermediary’s knowledge there are no investigations pending Senior Tier Mezzanine Borrower has not asserted any right of rescission, setoff, counterclaim or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreementdefense with respect thereto.

Additional Representations and Warranties. The Securities Intermediary makes Guarantor hereby makes, as of the following additional date hereof and only as to itself, each of the representations and warranties set forth in Section 5 of the Note Agreement that is applicable to the Initial Secured Party Guarantor. All payments whatsoever under this Guaranty Agreement will be made by the Guarantor free and the Assignee-Secured Partyclear of, that as and without liability for withholding or deduction for or on account of, any present or future tax (whether income, documentary, sales, stamp, registration, issue, capital, property, excise or otherwise), duty, assessment, levy, impost, fee, compulsory loan, charge or withholding (a “Tax”) of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States. States (bor any political subdivision or taxing authority of or in such jurisdiction) The Securities Intermediary has (a “Taxing Jurisdiction”), unless the power and authority withholding or deduction of such Tax is compelled by law. If any deduction or withholding for any Tax of a Taxing Jurisdiction shall at any time be required in respect of any amounts to execute, deliver and perform its obligations be paid by the Guarantor under this Guaranty Agreement. This Agreement has been duly authorized, executed the Guarantor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except pay to each holder such additional amounts as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating necessary in order that the net amounts paid to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties such holder pursuant to the terms of this Guaranty Agreement after such deduction, withholding or payment (including, without limitation, any required deduction or withholding of Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Guaranty Agreement before the assessment of such Tax, provided that no payment of any additional amounts shall be required to be made for or on account of: any Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof, including, without limitation, such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a Tax that would not have been imposed but for the Guarantor, after the date of this Guaranty Agreement, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Guaranty Agreement are made to, the Taxing Jurisdiction imposing the relevant Tax; any Tax that would not have been imposed but for the delay or failure by such holder (following a written request by the Guarantor) in the filing with the Guarantor or the relevant Taxing Jurisdiction of Forms (as defined below) that are required to be filed by such holder to 3 To be included if the Guarantor is domiciled in a non-U.S. jurisdiction. avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b) upon the good faith completion and submission of such Forms (including refilings or renewals of filings) as may be specified in a written request of the Guarantor no later than 60 days after receipt by such holder of such written request (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); any Tax that would not have been so imposed but for the presentation of a Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or after the date on which payment thereof is duly provided for, whichever is later; or any combination of clauses (a), (b) and (c) above; and provided further that in no event shall the Guarantor be obligated to pay such additional amounts (i) to any holder not resident in the United States of America or any other jurisdiction in which a holder is resident for tax purposes on the date of this Guaranty Agreement in excess of the amounts that the Guarantor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) to any holder of a Note registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant Tax and the Guarantor shall have given timely notice of such law or interpretation to such holder. By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and deliver to or as reasonably directed by the Guarantor all such forms, certificates, documents and returns provided to such holder by the Guarantor (collectively, together with instructions for completing the same, “Forms”) required to be filed by or on behalf of such holder in order to avoid or reduce any Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the United States and such Taxing Jurisdiction and (y) provide the Guarantor with such information with respect to such holder as the Guarantor may reasonably request in order to complete any such agreement Forms, provided that nothing in this Section 9 shall require any holder to provide information with respect to any such Form or instrument otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of tax return or other information that is confidential or proprietary to such holder, and provided, further, that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Guarantor or mailed to the appropriate taxing authority (which in the case of any Form which requires that it be submitted to the United States Internal Revenue Service as a condition to its effectiveness in the Taxing Jurisdiction shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Guarantor (which request shall be accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to the relevant interest payment date. On or before the date of this Guaranty Agreement the Guarantor shall have furnished each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in [__________] pursuant to clause (b) of the second paragraph of this Section 9, if any, and in connection with the transfer of any Note the Guarantor will furnish the transferee of such Note with copies of any Form and English translation then required. If any payment is made by the Guarantor to or for the account of the holder of any Note after deduction for or on account of any Taxes, and increased payments are made by the Guarantor pursuant to this Section 9, then, if such holder at its sole discretion determines that it has received or been granted a refund of such Taxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Guarantor such amount as such holder shall, in its sole discretion, determine to be attributable to the relevant Taxes or deduction or withholding. Nothing herein contained shall interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Tax in priority to any other claims, reliefs, credits or deductions available to it or (other than Liens contemplated as set forth in clause (b) above) oblige any holder of any Note to disclose any information relating to its tax affairs or any computations in respect thereof. The Guarantor will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Guarantor of any Tax in respect of any amounts paid under this Guaranty Agreement, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Guarantor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note. If the Guarantor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Tax in respect of which the Guarantor would be required to pay any additional amount under this Section 9, but for any reason does not make such deduction or withholding with the result that a liability in respect of such Tax is assessed directly against the holder of any Note, and such holder pays such liability, then the Guarantor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Guarantor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction. If the Guarantor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (iiiother than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Guarantor (which shall specify in reasonable detail and supply the refund forms to be filed) violate use reasonable efforts to complete and deliver such refund forms to or contravene any law oras directed by the Guarantor, subject, however, to the Securities Intermediary’s knowledge, any order rule same limitations with respect to Forms as are set forth above. The obligations of the Guarantor under this Section 9 shall survive the payment or regulation applicable to the Securities Intermediary transfer of any Governmental Authority having jurisdiction over Note and the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability provisions of this Agreement, (ii) seeking Section 9 shall also apply to prevent the consummation of any successive transferees of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementNotes.]

Additional Representations and Warranties. The Securities Intermediary makes In addition to the representations and warranties set forth in Section 6, if the Purchaser shall elect to acquire the Interests, the Nashville LLC and its members shall be deemed to make the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that Purchaser as of the applicable Closing Date, each of which shall survive such Closing: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under Neither the laws execution, delivery or performance of the United States. (b) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legalLLC Parties, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance nor compliance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms ofand provisions hereof, this Agreement will not (i) conflict with, result in any breach of any of the terms and terms, conditions or provisions of, or constitute (conflict with or without notice or lapse of time or both) constitute a default under its charter documents under, or by-lawsresult in the creation of any lien, charge or encumbrance upon the Interests, the Nashville LLC or any material LLC Party pursuant to the terms of any indenture, mortgage, deed of trust, loan agreementnote, guarantee, lease financing agreement evidence of indebtedness or similar any other agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary LLC, the Interests or any of the LLC Parties is bound. (b) No LLC Party has received written notice of and, to the actual knowledge of each of the LLC Parties, no action or proceeding is pending or, to the actual knowledge of each of the LLC Parties, threatened and no LLC Party has received written notice of and, to the actual knowledge of each of the LLC Parties, no investigation looking toward such an action or proceeding has begun, which (i) will result in any material adverse change in the business, operation, affairs or condition the Nashville LLC or (ii) may result in the creation or imposition of any Lien upon subject any of the Securities Intermediary’s properties Interests or the Nashville LLC to a material liability. (c) Other than (x) documents recorded in the public records, (y) the documents to be assigned to the Purchaser pursuant to the terms hereof, and (z) agreements and easements with governmental bodies and utility companies which are reasonably necessary for the development and operation of any such agreement or instrument (other than Liens the Properties as contemplated by this Agreement) Agreement and the Leases, there are no material agreements, leases, licenses or (iii) violate occupancy agreements affecting the Interests or contravene any law or, the Nashville LLC which will be binding on the Purchaser or Nashville LLC subsequent to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this AgreementClosing Date. (d) There The Nashville LLC has prepared and timely filed with the appropriate governmental authorities all federal, state and local income and business tax returns and all sales and use and other tax returns; such returns are no Proceedings pendingtrue, or, correct and complete in all material respects; and any and all taxes due and payable for periods ending on or prior to the Securities Intermediary’s knowledge, threatenedapplicable Closing Date will have been paid by the Closing Date, and any and all taxes in respect of periods commencing on or prior to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting applicable Closing Date and ending after such date shall be apportioned in the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated manner prescribed by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.Article 9 and Section 11.1

Additional Representations and Warranties. The Securities Intermediary makes the following additional In addition to those representations and warranties contained in this Instrument, Borrower represents and warrants to the Initial Secured Party and the Assignee-Secured Party, that Lender as of the Closing Datefollows: (a1) The Securities Intermediary Borrower has been duly organized obtained all Licenses necessary to use and is validly existing as a national banking association under operate the laws Mortgaged Property for its Intended Use (such Licenses being in its own name or in the name of the United Statesmanagement agent for the Mortgaged Property, if any, and in any event in the names of the persons and entities required by the applicable Governmental Authorities), and all such Licenses are in full force and effect. Borrower has provided Lender with complete and accurate copies of all Licenses. The Intended Use of the Mortgaged Property is in conformity with all certificates of occupancy and Licenses and any other restrictions or covenants affecting the Mortgaged Property. The Mortgaged Property contains all equipment, staff and supplies necessary to use and operate the Mortgaged Property for its Intended Use. (b2) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, Borrower and the fulfillment Mortgaged Property (and its operation) are in compliance in all material respects with the applicable provisions of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-all laws, any material indentureregulations, mortgageordinances, deed of trust, loan agreement, guarantee, lease financing agreement orders or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary standards of any Governmental Authority having jurisdiction over the Securities Intermediary operation of the Mortgaged Property, including: (A) health care and fire safety codes; (B) laws regulating the preparation and serving of food; (C) laws regulating the handling and disposal of medical or biological waste; (D) the applicable provisions of all laws, rules, regulations and published interpretations of them to which the Borrower or the Mortgaged Property is subject by virtue of its propertiesIntended Use; and (E) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988. (3) Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any Governmental Authority and neither Borrower nor any management agent for the failure to comply with Mortgaged Property has received any notice from any Governmental Authority which may result in the imposition of a fine or interim or final sanction or would reasonably be expected to (i) have a material adverse effect on Borrower or the Securities Intermediaryoperation of the Mortgaged Property, (ii) result in the appointment of a receiver, (iii) affect Borrower’s ability to perform its obligations under this Agreementaccept and retain residents, or (iv) result in the revocation, transfer, surrender, suspension or other impairment of any License. (d4) There are Neither the execution and delivery of the Note, this Instrument or any other Loan Document, ▇▇▇▇▇▇▇▇'s performance under the Loan Documents, the recordation of this Instrument, nor the exercise of any remedies by ▇▇▇▇▇▇, will adversely affect the Licenses. (5) Borrower is not a participant in any federal program under which any Governmental Authority may have the right to recover funds by reason of the advance of federal funds. (6) ▇▇▇▇▇▇▇▇ has received no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenednotice of, and to is not aware of, any violation of applicable antitrust laws. (7) If any existing management agreement is terminated or Lender acquires the Securities Intermediary’s knowledge there are no investigations pending Mortgaged Property through foreclosure or threatenedotherwise, against neither Borrower, Lender, any subsequent management agent, nor any subsequent purchaser (through foreclosure or affecting the Securities Intermediary or its property before otherwise) must obtain a certificate of need from any Governmental Authority (other than giving of any notice required under the applicable state law or regulation) prior to applying for any License, so long as neither the type of service nor any unit compliment is changed. (8) Exhibit C attached to this Instrument lists all Contracts now in effect. (9) With regard to each Contract listed in Exhibit C: (i) asserting the invalidity Contract is assignable without the consent of the other party thereto or unenforceability of this Agreement, ▇▇▇▇▇▇▇▇ has obtained express written consent to the assignment from the other party thereto; (ii) seeking no previous assignment of Borrower’s interest in the Contract has been made; (iii) the Contract is in full force and effect in accordance with its respective terms; and (iv) there is no default under the Contract. (10) Each Contract listed in Exhibit C the average annual consideration for which, directly or indirectly, is at least $20,000, provides that it is terminable, at Lender's option, upon the occurrence of an Event of Default. (11) Except for termination statements and continuation statements, during the 45-day period prior to prevent the consummation date of this Instrument, there have been no UCC financing statements filed with respect to any of the transactions contemplated by this Agreement UCC Collateral (as defined in Section 3) listing as debtor the Borrower, any management agent for the Mortgaged Property or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementMortgaged Property's common name.

Additional Representations and Warranties. The Securities Intermediary makes the following additional In addition to those representations and warranties contained in this Instrument, Borrower represents and warrants to the Initial Secured Party and the Assignee-Secured Party, that Lender as of the Closing Datefollows: (a1) The Securities Intermediary Borrower has been duly organized and is validly existing as a national banking association under the laws obtained or has caused any operator of the United StatesMortgaged Property to obtain all Licenses necessary to use, occupy or operate the Mortgaged Property for its Intended Use (such Licenses being in its own name or in the name of the operator of the Mortgaged Property or the management agent for the Mortgaged Property, if any, and in any event in the names of the persons and entities required by the applicable Governmental Authorities), and all such Licenses are in full force and effect. Borrower has provided Lender with complete and accurate copies of all Licenses. The Intended Use of the Mortgaged Property is in conformity with all certificates of occupancy and Licenses and any other restrictions or covenants affecting the Mortgaged Property. The Mortgaged Property contains all equipment, staff and supplies necessary to use and operate the Mortgaged Property for its Intended Use. (b2) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, Borrower and the fulfillment Mortgaged Property (and its operation) are in compliance with the applicable provisions of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-all laws, any material indentureregulations, mortgageordinances, deed of trust, loan agreement, guarantee, lease financing agreement orders or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary standards of any Governmental Authority having jurisdiction over the Securities Intermediary operation of the Mortgaged Property, including: (A) health care and fire safety codes; (B) laws regulating the preparation and serving of food; (C) laws regulating the handling and disposal of medical or biological waste; (D) the applicable provisions of all laws, rules, regulations and published interpretations of them to which the Borrower or the Mortgaged Property is subject by virtue of its propertiesIntended Use; and (E) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988. (3) Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any Governmental Authority and neither Borrower, any operator of the failure to comply with Mortgaged Property nor any management agent for the Mortgaged Property has received any notice from any Governmental Authority which may result in the imposition of a fine or interim or final sanction or would reasonably be expected to (i) have a material adverse effect on Borrower or the Securities Intermediaryoperation of the Mortgaged Property, (ii) result in the appointment of a receiver, (iii) affect ▇▇▇▇▇▇▇▇’s or any operator of the Mortgaged Property’s ability to perform its obligations under this Agreementaccept and retain residents, or (iv) result in the revocation, transfer, surrender, suspension or other impairment of any License. (d4) There are Neither the execution and delivery of the Note, this Instrument or any other Loan Document, ▇▇▇▇▇▇▇▇’s performance under the Loan Documents, the recordation of this Instrument, nor the exercise of any remedies by ▇▇▇▇▇▇, will adversely affect the Licenses. (5) Borrower is not a participant in any federal program under which any Governmental Authority may have the right to recover funds by reason of the advance of federal funds. (6) ▇▇▇▇▇▇▇▇ has received no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenednotice of, and to is not aware of, any violation of applicable antitrust laws. (7) If any existing management agreement or operating lease is terminated or Lender acquires the Securities Intermediary’s knowledge there are no investigations pending Mortgaged Property through foreclosure or threatenedotherwise, against none of the Borrower, Lender, any subsequent operator or affecting the Securities Intermediary management agent, or its property before any subsequent purchaser (through foreclosure or otherwise) must obtain a certificate of need from any Governmental Authority (other than giving of any notice required under the applicable state law or regulation) prior to applying for any License, so long as neither the type of service nor any unit compliment is changed. (8) Exhibit C attached to this Instrument lists all Material Contracts now in effect. (9) With regard to each Material Contract listed in Exhibit C: (i) asserting the invalidity Material Contract is assignable without the consent of the other party thereto or unenforceability Borrower and any operator of this Agreement, the Mortgaged Property has obtained express written consent to the assignment from the other party thereto; (ii) seeking no previous assignment of Borrower’s or any operator of the Mortgaged Property’s interest in the Material Contract has been made; (iii) the Material Contract is in full force and effect in accordance with its respective terms; and (iv) there is no default under the Material Contract. (10) Each Material Contract listed in Exhibit C provides that it is terminable upon not more than 30 days notice without the necessity of establishing cause and without payment of a penalty or termination fee by Borrower or its successors. (11) Except for termination statements and continuation statements, during the 45-day period prior to prevent the consummation date of this Instrument, there have been no UCC financing statements filed with respect to any of the transactions contemplated by this Agreement or (iii) seeking UCC Collateral listing as debtor the Borrower, any determination or ruling that would reasonably be expected to have a material adverse effect on the ability operator of the Securities Intermediary to perform its obligations under this AgreementMortgaged Property, any management agent for the Mortgaged Property or the Mortgaged Property’s common name.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations Obligor Parties, and warranties each of them, hereby represent and warrant to the Initial Secured Party and the Assignee-Secured Party, that Administrative Agent as of the Closing Datefollows: (ai) The Securities Intermediary has been Each of the Obligor Parties is duly organized and is organized, validly existing as a national banking association and in good standing under the laws of the United StatesState or other jurisdiction of its organization, i) is duly qualified and in good standing as a foreign business entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify, and ii) has all requisite power and authority (including, without limitation, all governmental licenses, agreements and other approvals) to own and lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Obligor Parties’ principal place of business is located in the State of Colorado and the Obligor Parties have the legal capacity to enter into and perform the obligations of Obligor Parties under this Agreement. (bii) The Securities Intermediary has execution, delivery and performance by the power and authority to executeObligor Parties of this Agreement are within the Obligor Parties’ powers, deliver and perform its obligations under this Agreement. This Agreement has have been duly authorized, executed by all necessary action, and delivered by (1) do not contravene the Securities Intermediary and constitutes the legalObligor Parties’ operating agreements, valid and (2) do not contravene any law or any contractual restriction binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to on or affecting the enforcement of creditors’ rights and by general equitable principles. Obligor Parties, (c3) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any the breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-lawsrequire any payment to be made under, any material loan agreement, credit agreement, indenture, mortgage, deed of trust, loan agreementbond, guaranteenote, lease financing or other instrument or agreement binding on or similar agreement otherwise affecting the Obligor Parties or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement its or instrument (other than Liens contemplated by this Agreement) or their properties. (iii) violate No authorization or contravene any law orapproval or other action by, and no notice to the Securities Intermediary’s knowledgeor filing with, any order rule governmental authority or regulation applicable regulatory body or any other third party is required for iii) the due execution, delivery and performance by the Obligor Parties of this Agreement or any Agreement to which any of them or any of their affiliates, Members, or principals is a party, or iv) the Securities Intermediary making of any Governmental Authority having jurisdiction over the Securities Intermediary or its propertiescovenants, conditions, representations and warranties by the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations Obligor Parties under this Agreement. (div) There This Letter Agreement, the Loan Reinstatement Agreement and the other Loan Agreements to which the Obligor Parties are no Proceedings pending, or, to parties have been duly executed and delivered by the Securities Intermediary’s knowledge, threatenedObligor Parties, and to are the Securities Intermediary’s knowledge there are no investigations pending or threatenedlegal, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any valid and binding obligations of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on Obligor Parties enforceable against the ability of the Securities Intermediary to perform its obligations under this AgreementObligor Parties in accordance with their respective terms.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations Borrower further represents and warranties warrants to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing DateLender that: (a) 4.2.1. The Securities Intermediary Borrower has all power and authority and has been duly organized and is validly existing as a national banking association under the laws of the United States. (b) The Securities Intermediary has the power and authority authorized to execute, deliver and perform its obligations under this AgreementAmendment, the Credit Agreement (as amended by this Amendment), and the other Loan Documents. 4.2.2. This Amendment, the Credit Agreement has been duly authorized(as amended by this Amendment), executed and delivered by the Securities Intermediary and constitutes the legal, other Loan Documents are valid and legally binding obligation obligations of the Securities IntermediaryBorrower, enforceable against the Securities Intermediary in accordance with its their respective terms, except as such enforceability may be limited by insolvency, applicable bankruptcy, reorganization insolvency or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principlesgenerally. 4.2.3. The execution, delivery and performance of this Amendment, the Credit Agreement (c) The consummation of the transactions contemplated byas amended by this Amendment), and the fulfillment of other Loan Documents by the terms of, this Agreement Borrower do not and will not (ia) conflict with, result in any a breach of any of the terms and terms, conditions or provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents under, or by-lawsresult in any violation of the organizational and operating agreements and documents, of the Borrower, or any material indenture, mortgage, deed of trust, loan agreement, guaranteeinstrument, lease financing agreement undertaking, judgment, decree, order, writ, injunction, statute, law, rule or similar agreement or instrument under regulation to which the Securities Intermediary Borrower is a party subject or by which the Securities Intermediary is boundassets and property of the Borrower are bound or affected, (iib) result in the creation or imposition of any Lien upon lien on any of assets or property now or hereafter owned by the Securities Intermediary’s properties Borrower pursuant to the terms provisions of any such mortgage, indenture, security agreement, contract, undertaking or other agreement or instrument (to which Borrower is a party, other than Liens contemplated by this Agreementthe obligations of the Borrower in favor of the Lender, (c) require any authorization, consent, license, approval or (iii) violate authorization of, or contravene other action by, notice or declaration to, registration with, any law governmental agency or authority or, to the Securities Intermediary’s knowledgeextent any such consent or other action may be required, any order rule it has been validly procured or regulation applicable to duly taken, or (d) result in the Securities Intermediary occurrence of an event materially adversely affecting the validity or enforceability of any Governmental Authority having jurisdiction over rights or remedies of the Securities Intermediary Lender or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities IntermediaryBorrower’s ability to perform its obligations under this Agreementthe Credit Agreement and other Loan Documents. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.

Additional Representations and Warranties. The Securities Intermediary makes the following additional In addition to those representations and warranties contained in this Instrument, Borrower represents and warrants to the Initial Secured Party and the Assignee-Secured Party, that Lender as of the Closing Datefollows: (a1) The Securities Intermediary Borrower has been duly organized obtained all Licenses necessary to use and is validly existing as a national banking association under operate the laws Mortgaged Property for its Intended Use (such Licenses being in its own name or in the name of the United Statesmanagement agent for the Mortgaged Property, if any, and in any event in the names of the persons and entities required by the applicable Governmental Authorities), and all such Licenses are in full force and effect. Borrower has provided Lender with complete and accurate copies of all Licenses. The Intended Use of the Mortgaged Property is in conformity with all certificates of occupancy and Licenses and any other restrictions or covenants affecting the Mortgaged Property. The Mortgaged Property contains all equipment, staff and supplies necessary to use and operate the Mortgaged Property for its Intended Use. (b2) The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, Borrower and the fulfillment Mortgaged Property (and its operation) are in compliance in all material respects with the applicable provisions of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-all laws, any material indentureregulations, mortgageordinances, deed of trust, loan agreement, guarantee, lease financing agreement orders or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary standards of any Governmental Authority having jurisdiction over the Securities Intermediary operation of the Mortgaged Property, including: (A) health care and fire safety codes; (B) laws regulating the preparation and serving of food; (C) laws regulating the handling and disposal of medical or biological waste; (D) the applicable provisions of all laws, rules, regulations and published interpretations of them to which the Borrower or the Mortgaged Property is subject by virtue of its propertiesIntended Use; and (E) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988. (3) Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any Governmental Authority and neither Borrower nor any management agent for the failure to comply with Mortgaged Property has received any notice from any Governmental Authority which may result in the imposition of a fine or interim or final sanction or would reasonably be expected to (i) have a material adverse effect on Borrower or the Securities Intermediaryoperation of the Mortgaged Property, (ii) result in the appointment of a receiver, (iii) affect Borrower’s ability to perform its obligations under this Agreementaccept and retain residents, or (iv) result in the revocation, transfer, surrender, suspension or other impairment of any License. (d4) There are Neither the execution and delivery of the Note, this Instrument or any other Loan Document, B▇▇▇▇▇▇▇’s performance under the Loan Documents, the recordation of this Instrument, nor the exercise of any remedies by L▇▇▇▇▇, will adversely affect the Licenses. (5) Borrower is not a participant in any federal program under which any Governmental Authority may have the right to recover funds by reason of the advance of federal funds. (6) B▇▇▇▇▇▇▇ has received no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatenednotice of, and to is not aware of, any violation of applicable antitrust laws. (7) If any existing management agreement is terminated or Lender acquires the Securities Intermediary’s knowledge there are no investigations pending Mortgaged Property through foreclosure or threatenedotherwise, against neither Borrower, Lender, any subsequent management agent, nor any subsequent purchaser (through foreclosure or affecting the Securities Intermediary or its property before otherwise) must obtain a certificate of need from any Governmental Authority (other than giving of any notice required under the applicable state law or regulation) prior to applying for any License, so long as neither the type of service nor any unit compliment is changed. (8) Exhibit C attached to this Instrument lists all Contracts now in effect. (9) Except as specifically identified on Exhibit C, with regard to each Contract listed in Exhibit C: (i) asserting the invalidity Contract is assignable without the consent of the other party thereto or unenforceability of this Agreement, Borrower has obtained express written consent to the assignment from the other party thereto; (ii) seeking no previous assignment of B▇▇▇▇▇▇▇’s interest in the Contract has been made; (iii) the Contract is in full force and effect in accordance with its respective terms; and (iv) there is no default under the Contract. (10) Each Material Contract listed in Exhibit C the average annual consideration for which, directly or indirectly, is at least $30,000, provides that (A) it is terminable, at Lender’s option, if an Event of Default has occurred and is continuing or (B) it is terminable upon thirty (30) days written notice. (11) Except for termination statements and continuation statements, during the 45-day period prior to prevent the consummation date of this Instrument, there have been no UCC financing statements filed with respect to any of the transactions contemplated by this Agreement UCC Collateral (as defined in Section 3) listing as debtor the Borrower, any management agent for the Mortgaged Property or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementMortgaged Property’s common name.

Additional Representations and Warranties. The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date: (a) The Securities Intermediary has been duly organized and is validly existing as a national banking association under the laws As of the United States. (b) The Securities Intermediary has Effective Date and the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its termsTranche A Closing Date, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (cset forth on Schedule 4.23(a) The consummation of the transactions contemplated byDisclosure Letter, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant after giving effect to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement Agreement, there is no Indebtedness for borrowed money owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or owed by Borrower or any of its Subsidiaries, other than Permitted Indebtedness. (b) As of each Closing Date other than the Tranche A Closing Date, there is no Indebtedness for borrowed money (x) owed to Borrower or any of its Subsidiaries other than Permitted Indebtedness or Permitted Investments, or (iiiy) seeking owed by Borrower or any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of its Subsidiaries other than Permitted Indebtedness. (c) As of the Securities Intermediary to perform Effective Date and Tranche A Closing Date, except as set forth on Schedule 4.23(c) of the Disclosure Letter, neither Borrower nor any of its obligations under Subsidiaries are party to, or otherwise bound by, any Hedging Agreements. (d) As of any Closing Date other than the Tranche A Closing Date, neither Borrower nor any of its Subsidiaries are party to, or otherwise bound by, any Hedging Agreements, except for Hedging Agreements expressly permitted by this Agreement. (e) Except as has been disclosed in the Exchange Act Documents, as of the Effective Date and each Closing Date, there is no registration rights agreement, investors’ rights agreement or other similar agreement relating to, governing or otherwise affecting the ownership of any Equity Interest that is required to be pledged pursuant to the Collateral Documents.

Additional Representations and Warranties. The Securities Intermediary makes 7.3.1 Archemix represents and warrants to Ophthotech that Archemix has the following additional representations right to grant the license granted to Ophthotech on the terms set forth herein; 7.3.2 Archemix represents and warranties warrants to the Initial Secured Party and the Assignee-Secured PartyOphthotech that, that except as previously disclosed to Ophthotech, as of the Closing Date:Restatement Date and with no further duty to update (except as otherwise stated): (a) The Securities Intermediary has been duly organized and to its Knowledge, there is validly existing as a national banking association under no litigation pending or threatened that alleges that (i) the laws practice of the United States.SELEX Process and/or the use of SELEX Technology as contemplated by this Agreement infringes the Patent Rights of any Third Party, or (ii) the Licensed Patent Rights are invalid or unenforceable; or (iii) the use of the Licensed Patent Rights or Licensed Technology as contemplated by this Agreement infringes the Patent Rights of any Third Party; and (b) The Securities Intermediary the Archemix-Gilead License Agreement, as heretofore delivered by Archemix to Ophthotech, represents the complete agreement and understanding between Gilead Sciences, Inc. and Archemix relating to the Licensed Patent Rights which are the subject of the Archemix-Gilead License Agreement; the Archemix-Gilead License Agreement has not been modified, supplemented or amended, other than by amendments thereto provided to Ophthotech prior to the power Original Agreement Date; the Archemix-Gilead License Agreement is in full force and authority effect, all payments to executedate required to be made thereunder by Archemix have been made, deliver and perform Archemix is in compliance in all material respects with its obligations under this Agreement. This Agreement has been duly authorized, executed thereunder. 7.3.3 Archemix represents and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its termswarrants to Ophthotech that, except as such enforceability may be limited by insolvencywith respect to Patent Rights that have been cancelled, bankruptcywithdrawn, reorganization abandoned or other laws relating to rejected, revoked, held invalid or affecting the enforcement of creditors’ rights and by general equitable principles. (c) The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions ofdeclared or rendered unpatentable or unenforceable through disclaimer or otherwise, or constitute lost through an interference proceeding, all Licensed Patent Rights (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii) result as defined in the creation or imposition of any Lien upon any of Amended Original Agreement) and all Licensed Technology (as defined in the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument Amended Original Agreement) are Controlled (other than Liens contemplated by as defined in this Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d) There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any by Archemix as of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this AgreementRestatement Date.