Common use of Borrower Acknowledgments Clause in Contracts

Borrower Acknowledgments. Borrower hereby represents and warrants that the obligations evidenced by the Replacement Debentures, including, without limitation, all obligations for the Assigned Debt and the Remaining Debt, are valid and enforceable obligations of the Borrower subject to no defenses, setoffs, counterclaims, cross-actions or equities in favor of the Borrower, and to the extent the Borrower has any defenses, setoffs, counterclaims, cross-actions or equities against Assignor and/or against the enforceability of any such obligations, the Borrower acknowledges and agrees that same are hereby fully and unconditionally waived by the Borrower. The Borrower further acknowledges its obligations under Section 2(c) above, and agrees to timely and promptly deliver replacement debentures to Lender as required by this Agreement. The Borrower further acknowledges that the Assigned Debt may only represent a portion of the obligations due or owing under the Replacement Debentures, and that the Assigned Debt is only being assigned hereunder in Purchase Tranches as contemplated above. In that regard, the Borrower further acknowledges that the Remaining Debt, and any portion of the Assigned Debt for which the Applicable Purchase Price therefor has not been received by Lender, are and remain valid and enforceable obligations of the Borrower. Borrower agrees and acknowledges that it is and shall remain liable to pay the Remaining Debt, and any portion of the Assigned Debt for which the Applicable Purchase Price therefor has not been received by Lender, as same becomes due in accordance with the terms of the Purchase Agreement and the Replacement Debentures, or any replacement debentures issued in replacement thereof as hereby contemplated, and nothing contained herein shall be deemed or construed any waiver or to otherwise excuse performance by Borrower under its obligations to Lender. In addition, Borrower acknowledges that the First Amendment contemplates the sale of the “Outstanding Claims” (as defined in the First Amendment) to Assignee; provided, however, Borrower agrees and understands that Lender may, from time to time, elect to sell such Outstanding Claims, or portions thereof, to Assignee, or any other Person from time to time as Lender shall elect, and such Assignee or other Person shall be deemed a “Purchaser” under the First Amendment and the “Exchange Agreements” (as defined in the First Amendment), shall mean such agreements related to the sale of Outstanding Claims to Assignee or any such other Person, as the case may be from time to time.

Borrower Acknowledgments. Borrower hereby represents and warrants that the obligations evidenced by the Second Replacement DebenturesNote, including, without limitation, all obligations for the Assigned Debt and the Remaining Debt, are valid and enforceable obligations of the Borrower subject to no defenses, setoffs, counterclaims, cross-actions or equities in favor of the Borrower, and to the extent the Borrower has any defenses, setoffs, counterclaims, cross-actions or equities against Assignor and/or against the enforceability of any such obligations, the Borrower acknowledges and agrees that same are hereby fully and unconditionally waived by the Borrower. The Borrower further acknowledges its obligations under Section 2(c) above, and agrees to timely and promptly deliver replacement debentures notes to Lender as required by this Agreement. The Borrower further acknowledges that the Assigned Debt may only represent represents a portion of the obligations due or owing under the Second Replacement DebenturesNote, and that the Assigned Debt is only being assigned hereunder in Purchase Tranches as contemplated above. In that regard, the Borrower further acknowledges that the Remaining Debt, and any portion of the Assigned Debt for which the Applicable Purchase Price therefor has not been received by Lender, are and remain valid and enforceable obligations of the Borrower. Borrower agrees and acknowledges that it is and shall remain liable to pay the Remaining Debt, and any portion of the Assigned Debt for which the Applicable Purchase Price therefor has not been received by Lender, as same becomes due in accordance with the terms of the Purchase Credit Agreement and the Second Replacement DebenturesNote, or any replacement debentures notes issued in replacement thereof as hereby contemplated, and nothing contained herein shall be deemed or construed any waiver or to otherwise excuse performance by Borrower under its obligations to Lender. In addition, Borrower acknowledges that the First Amendment contemplates the sale of the “Outstanding Claims” (as defined in the First Amendment) to Assignee; provided, however, Borrower agrees and understands that Lender may, from time to time, elect to sell such Outstanding Claims, or portions thereof, to Assignee, or any other Person from time to time as Lender shall elect, and such Assignee or other Person shall be deemed a “Purchaser” under the First Amendment and the “Exchange Agreements” (as defined in the First Amendment), shall mean such agreements related to the sale of Outstanding Claims to Assignee or any such other Person, as the case may be from time to time.

Borrower Acknowledgments. Borrower hereby represents acknowledges to and warrants agrees with Lender that (i) the obligations evidenced scope of Lender’s business is wide and includes, but is not limited to, financing, real estate financing, investment in real estate and other real estate transactions which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates; and (ii) Borrower is a knowledgeable real estate developer and/or investor, and has been represented by competent legal counsel and Borrower has consulted with such counsel prior to executing this Loan Agreement and of the other Loan Documents. Furthermore, Borrower hereby acknowledges to and agrees with Lender that (i) Lender is making the Loan in consideration of the receipt by Lender of all interest and other benefits intended to be conferred by the Replacement DebenturesLoan Documents and (ii) if payments of principal are made to Lender prior to the Maturity Date, includingfor any reason whatsoever, without limitationwhether voluntary, all obligations for the Assigned Debt and the Remaining Debt, are valid and enforceable obligations as a result of Lender’s acceleration of the Borrower subject to no defensesLoan after an Event of Default, setoffsby operation of law or otherwise, counterclaimsLender will not receive all such interest and other benefits and may, cross-actions or equities in favor of the Borroweraddition, incur other costs. For these reasons, and to induce Lender to make the extent the Loan, Borrower has any defensesagrees that, setoffsexcept as otherwise specifically set forth herein, counterclaimsall prepayments, cross-actions if any, whether voluntary or equities against Assignor and/or against the enforceability of any such obligationsinvoluntary, the Borrower acknowledges and agrees that same are hereby fully and unconditionally waived will be accompanied by the Yield Maintenance Premium applicable thereto. Such Yield Maintenance Premium shall be required whether payment is made by Borrower. The Borrower further acknowledges its obligations under Section 2(c) above, by a Person on behalf of Borrower, or by the purchaser at a foreclosure sale, and agrees to timely and promptly deliver replacement debentures to may be included in any bid by Lender as required by this Agreementat such sale. The Borrower further also acknowledges that the Assigned Debt may only represent a portion provisions of this Agreement providing for the payment of the obligations due or owing under the Replacement Debentures, Yield Maintenance Premium and that the Assigned Debt is only being assigned hereunder in Purchase Tranches as contemplated above. In that regard, the Borrower further acknowledges that the Remaining Debt, other charges specified herein were independently negotiated and any portion bargained for and constitute a specific material part of the Assigned Debt consideration given by Borrower to Lender for which the Applicable Purchase Price therefor has not been received by Lender, are and remain valid and enforceable obligations making of the Borrower. Borrower agrees and acknowledges that it is and shall remain liable to pay the Remaining Debt, and any portion of the Assigned Debt for which the Applicable Purchase Price therefor has not been received by Lender, as same becomes due in accordance with the terms of the Purchase Agreement and the Replacement Debentures, or any replacement debentures issued in replacement thereof as hereby contemplated, and nothing contained herein shall be deemed or construed any waiver or to otherwise excuse performance by Borrower under its obligations to Lender. In addition, Borrower acknowledges that the First Amendment contemplates the sale of the “Outstanding Claims” (as defined in the First Amendment) to Assignee; provided, however, Borrower agrees and understands that Lender may, from time to time, elect to sell such Outstanding Claims, or portions thereof, to Assignee, or any other Person from time to time as Lender shall elect, and such Assignee or other Person shall be deemed a “Purchaser” under the First Amendment and the “Exchange Agreements” (as defined in the First Amendment), shall mean such agreements related to the sale of Outstanding Claims to Assignee or any such other Person, as the case may be from time to timeLoan.