Common use of Representations, Warranties and Agreements of the Purchaser Clause in Contracts

Representations, Warranties and Agreements of the Purchaser. The Purchaser, without conceding that the Loan is a security as defined in the Securities Act (as hereinafter defined), hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the Closing Date: (a) The Purchaser is acquiring the Loan for its own account only and not for any other person. (b) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Loan and is in the business of acquiring commercial real estate loans for investment and other purposes. (c) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Loan, any interest in the Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Loan, any interest in the Loan or any other similar security from, or otherwise approached or negotiated with respect to the Loan, any interest in the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Loan under the Securities Act of 1933, as amended (the “Securities Act”), or that would render the disposition of the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Loan. (d) Purchaser acknowledges and agrees that, except as expressly set forth in this Agreement, the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forth. (e) Purchaser expressly agrees and acknowledges that Purchaser’s obligations hereunder are not in any way conditional upon, or qualified by, Purchaser’s ability to obtain financing of any type or nature whatsoever (i.e., whether by way of debt, financing or equity investment or otherwise) to consummate the transactions contemplated hereby. (f) Purchaser represents that it has full power and authority and has taken all action necessary to authorize it to enter into and perform its obligations under this Agreement and all other documents or instruments contemplated hereby. Purchaser represents and warrants that this Agreement has been duly authorized, executed and delivered by Purchaser. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms. Purchaser represents and warrants that the execution, delivery and performance of this Agreement by Purchaser does not conflict with the organizational documents of Purchaser, or with any law, statute or regulation applicable to Purchaser, or any mortgage, indenture or other Agreement or agreement to which Purchaser is a party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on the transactions contemplated by this Agreement.

Representations, Warranties and Agreements of the Purchaser. The PurchaserPurchaser represents and warrants to, without conceding that and agrees with, the Loan is a security Corporation that, as defined in of the Securities Act (as hereinafter defined)date hereof, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the Closing Date: (a) The Purchaser is acquiring has full power and authority to enter into this Agreement and, assuming the Loan for due execution and delivery of this Agreement by the Corporation, this Agreement constitutes a valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its own account only terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and not for any other personsimilar laws relating to or affecting creditor’s rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). (b) The Purchaser considers itself (i) is duly organized, validly existing and in good standing in its jurisdiction of incorporation or organization and has all the requisite power and authority to purchase the Funded Shares, as provided herein, and (ii) its purchase of the Funded Shares has been duly authorized by all necessary action on behalf of the Purchaser. (c) The Purchaser is purchasing the Funded Shares for the Purchaser’s own account and not with a substantialview to or for sale in connection with any distribution thereof in a transaction that would violate or cause a violation of the 1933 Act or the securities laws of any state or any other applicable jurisdiction. (d) The Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the 1933 Act and understands and acknowledges that the offer and sale of the Funded Shares to the Purchaser hereunder have not been registered under the 1933 Act or any state securities law in reliance on the availability of an exemption from such registration requirements of the 1933 Act based in part on the accuracy of the Purchaser’s representations in this Section. (e) In the normal course of the Purchaser’s business or affairs, sophisticated institutional investor having the Purchaser invests in or purchases securities similar to the Common Stock and has such knowledge and experience in financial and business matters that it is as to be capable of evaluating the merits and risks of investment in purchasing the Loan and is in the business of acquiring commercial real estate loans for investment Funded Shares. The Purchaser has had access to such financial and other purposes. (c) Neither information concerning the Corporation and its Subsidiaries as the Purchaser nor anyone acting on its behalf deemed necessary or desirable in making a decision to purchase the Funded Shares , and has offered, transferred, pledged, sold or otherwise disposed had an opportunity to ask questions and receive answers from officers of the Loan, any interest in the Loan or any other similar security to, or solicited any offer Corporation and to buy or accept a transfer, pledge or other disposition of the Loan, any interest in the Loan or any other similar security from, or otherwise approached or negotiated with respect obtain additional information (to the Loan, extent the Corporation possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any interest in the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Loan under the Securities Act of 1933, as amended (the “Securities Act”), or that would render the disposition of the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect information furnished to the Loan. (d) Purchaser acknowledges and agrees that, except as expressly set forth in this Agreement, or to which the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forth. (e) Purchaser expressly agrees and acknowledges that Purchaser’s obligations hereunder are not in any way conditional upon, or qualified by, Purchaser’s ability to obtain financing of any type or nature whatsoever (i.e., whether by way of debt, financing or equity investment or otherwise) to consummate the transactions contemplated herebyhad access. (f) The Purchaser represents is not relying on the Corporation or any of its affiliates with respect to an analysis or consideration of the terms of or economic considerations relating to an investment in the Common Stock. In regard to such considerations and analysis, the Purchaser has relied on the advice of, or has consulted with, its own advisors. Nothing herein shall limit the Corporation’s representations and warranties set forth in Section 3.1. (g) The Purchaser acknowledges and is aware that there are substantial restrictions on the transferability of the shares of Common Stock purchased hereunder. The Purchaser understands that such shares have not been registered under the 1933 Act and are “restricted securities” within the meaning of Rule 144 of the 1933 Act, and may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom. Furthermore, the Purchaser acknowledges that the shares of Common Stock purchased hereunder will bear a legend to the effect set forth below, and the Purchaser covenants that, except to the extent such restrictions are waived by the Corporation, the Purchaser shall not transfer the shares of Common Stock purchased hereunder without complying with the restrictions on transfer described in the legend endorsed on such certificate: THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. The Purchaser may transfer the shares of Common Stock purchased hereunder to any affiliate or affiliates of the Purchaser provided such transfer is not prohibited by any federal or state securities laws or any applicable banking law or regulation. (h) The execution, delivery and performance by the Purchaser of this Agreement, purchase of the Funded Shares in the manner contemplated hereby, and the consummation of the transactions contemplated herein, will not (i) conflict with or constitute a material violation of, or material default (with the passage of time or the delivery of notice) under any law, administrative regulation, ordinance or judgment, order or decree of any court or other Governmental Authority binding upon the Purchaser or any of its property, or (ii) violate any of the provisions of the charter documents of the Purchaser; and no material consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is required for the consummation of the Transactions by the Purchaser, except such as may be required under Regulation D under the 1933 Act or for a Rule 506 “federal covered security” under state securities laws and for the Required Approvals. (i) The offer to purchase the Common Stock to be purchased hereunder was directly communicated to the Purchaser by the Corporation. At no time was the Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio, television, internet or email advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer. (j) The Purchaser neither is nor will be obligated for any finder’s or broker’s fee or commission in connection with Transactions for which the Corporation would be responsible. (k) The Purchaser has valid commitments and arrangements so that by the Closing it has full power and authority and has taken all action necessary will have sufficient funds to authorize enable the Purchaser to pay the sums required to be paid by it to enter into the Corporation or, if applicable, the escrow agent, pursuant to this Agreement, and otherwise to perform its obligations under this Agreement and all other documents or instruments contemplated hereby. Agreement. (l) The Purchaser represents and warrants that this Agreement has been duly authorizedis organized, executed and delivered by Purchaser. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms. Purchaser represents and warrants that the execution, delivery and performance of this Agreement by Purchaser does not conflict with the organizational documents of Purchaserformed, or with any law, statute incorporated under (i) the laws of one of the states or regulation applicable to Purchaser, territories of the United States of America or any mortgage, indenture the District of Columbia or other Agreement or agreement to which (ii) the federal laws of the United States of America; and the Purchaser is a party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on domiciled in one of the transactions contemplated by this Agreementstates or territories of the United States of America or the District of Columbia.

Representations, Warranties and Agreements of the Purchaser. The PurchaserPurchaser represents, without conceding that the Loan is a security as defined in the Securities Act (as hereinafter defined), hereby makes the following representations, warranties warrants and agreements, which shall have been deemed to have been made as of the Closing Date:agrees that (a) The Purchaser is acquiring a limited partnership, partnership or corporation, as the Loan for its own account only and not for any other person. (b) case may be. The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating has the merits and risks of investment in the Loan and is in the business of acquiring commercial real estate loans for investment and other purposes. (c) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Loan, any interest in the Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Loan, any interest in the Loan or any other similar security from, or otherwise approached or negotiated with respect to the Loan, any interest in the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Loan under the Securities Act of 1933, as amended (the “Securities Act”), or that would render the disposition of the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Loan. (d) Purchaser acknowledges and agrees that, except as expressly set forth in this Agreement, the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forth. (e) Purchaser expressly agrees and acknowledges that Purchaser’s obligations hereunder are not in any way conditional upon, or qualified by, Purchaser’s ability to obtain financing of any type or nature whatsoever (i.e., whether by way of debt, financing or equity investment or otherwise) to consummate the transactions contemplated hereby. (f) Purchaser represents that it has full requisite power and authority and has taken all action necessary to authorize it to enter into and perform its obligations under this Agreement and all other documents or instruments contemplated hereby. Purchaser represents and warrants that this Agreement has been duly authorized, executed and delivered to purchase the Shares to be purchased by Purchaser. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable it in accordance with its termsthe terms hereof. Purchaser represents and warrants that the The execution, delivery and performance of this Agreement by the Purchaser does not conflict with and the organizational documents consummation by it of Purchaser, or with any law, statute or regulation applicable to Purchaser, or any mortgage, indenture or other Agreement or agreement to which Purchaser is a party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on the transactions contemplated hereby have been duly and validly authorized by all necessary action. This Agreement has been duly executed and delivered on behalf of the Purchaser by a duly authorized officer. This Agreement constitutes, or shall constitute, when executed and delivered by the Company, a valid and binding obligation of the Purchaser enforceable against that Purchaser in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies or by other principles or general application. (b) All information contained in the written materials furnished by the Purchaser to the Company for use in the Prospectus Supplement (as defined below), is true and correct in all material respects. “Prospectus Supplement” means the final prospectus supplement, in the form first filed after the date of this AgreementAgreement pursuant to Rule 424 under the Securities Act. The Purchaser shall comply with all applicable laws, rules, regulations and orders.

Representations, Warranties and Agreements of the Purchaser. The PurchaserPurchaser represents, without conceding that the Loan is a security as defined in the Securities Act (as hereinafter defined), hereby makes the following representations, warranties warrants and agreements, which shall have been deemed to have been made as of the Closing Date:agrees that (a) The Purchaser is acquiring a corporation duly incorporated, validly existing and in good standing under the Loan for its own account only and not for any other person. (b) laws of Delaware. The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating has the merits and risks of investment in the Loan and is in the business of acquiring commercial real estate loans for investment and other purposes. (c) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Loan, any interest in the Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Loan, any interest in the Loan or any other similar security from, or otherwise approached or negotiated with respect to the Loan, any interest in the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Loan under the Securities Act of 1933, as amended (the “Securities Act”), or that would render the disposition of the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Loan. (d) Purchaser acknowledges and agrees that, except as expressly set forth in this Agreement, the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forth. (e) Purchaser expressly agrees and acknowledges that Purchaser’s obligations hereunder are not in any way conditional upon, or qualified by, Purchaser’s ability to obtain financing of any type or nature whatsoever (i.e., whether by way of debt, financing or equity investment or otherwise) to consummate the transactions contemplated hereby. (f) Purchaser represents that it has full requisite power and authority and has taken all action necessary to authorize it to enter into and perform its obligations under this Agreement and all other documents or instruments contemplated hereby. Purchaser represents and warrants that this Agreement has been duly authorized, executed and delivered to purchase the Shares to be purchased by Purchaser. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable it in accordance with its termsthe terms hereof. Purchaser represents and warrants that the The execution, delivery and performance of this Agreement by the Purchaser does not conflict with and the organizational documents consummation by it of Purchaser, or with any law, statute or regulation applicable to Purchaser, or any mortgage, indenture or other Agreement or agreement to which Purchaser is a party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on the transactions contemplated hereby have been duly and validly authorized by all necessary action. This Agreement has been duly executed and delivered on behalf of the Purchaser by a duly authorized officer. This Agreement constitutes, or shall constitute, when executed and delivered by the Company, a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally, the enforcement of creditors' rights and remedies or by other principles or general application. (b) All information about the Purchaser in the Prospectus Supplement (as defined below), is true and correct in all material respects. “Prospectus Supplement” means the final prospectus supplement, in the form first filed after the date of this AgreementAgreement pursuant to Rule 424 under the Securities Act. The Purchaser shall comply with all applicable laws, rules, regulations and orders. The Purchaser is an “accredited investor” as such term is defined in Rule 501(a) of the Securities Act. The Purchaser is acquiring the Shares for its own account and has no present intention of selling or distributing any of the Shares in any transaction that would violate the Securities Act.

Representations, Warranties and Agreements of the Purchaser. The Purchaser, without conceding Purchaser (for itself and on behalf of the Funds) hereby represents and warrants to the Company and the Guarantors as follows (it being understood that the Loan is a security as defined in Purchaser does not make any representation, warranty, covenant or agreement to any other purchaser of the Securities Act (as hereinafter defined), hereby makes or to the following representations, warranties and agreements, which shall have been deemed to have been made as Company or the Guarantors on behalf of any other purchaser of the Closing Date:Securities): (a) The Purchaser is acquiring has full power and authority to purchase the Loan for its own account only Securities issued and not for any other personoffered hereby. (b) The Purchaser considers itself a substantialand each of the Funds (i) is knowledgeable, sophisticated institutional investor having such knowledge and experience experienced in financial making, and business matters is qualified to make, decisions with respect to investments in securities representing an investment decision like that it is capable of evaluating the merits and risks of investment involved in the Loan purchase of the Securities, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Securities; (ii) is acquiring the Securities in the ordinary course of its business of acquiring commercial real estate loans and for its own account for investment purposes only and with no present intention of distributing any of such Securities or any arrangement or understanding with any other purposespersons regarding the distribution of such Securities; and (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act and any applicable state securities laws. (c) Neither the The Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed and each of the LoanFunds is a “qualified institutional buyer” as defined in Rule 144A and/or an institutional “accredited investor” as defined in Rule 501(a), any interest in the Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Loan, any interest in the Loan or any other similar security from, or otherwise approached or negotiated with respect to the Loan, any interest in the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Loan each case as promulgated under the Securities Act of 1933, as amended (the “Securities Act”), or that would render the disposition of the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Loan. (d) The Purchaser understands and acknowledges (for itself and agrees thaton behalf of the Funds) that (i) the Securities are being offered in transactions that rely on an exemption from registration provided by Section 4(a)(2) under the Securities Act and an exemption from applicable state securities law requirements; (ii) the initial offering and issuance of the Securities has not been registered under the Securities Act or any other securities laws; (iii) if in the future it decides to resell, except as expressly set forth pledge or otherwise transfer the Securities that it purchases hereunder, those Securities, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and (iv) it will, and each subsequent holder of any of the Securities that it purchases in this Agreementoffering is required to, notify any subsequent purchaser of such Securities from it or subsequent holders, as applicable, of the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forthresale restrictions referred to in clause (iii) above. (e) The Purchaser expressly agrees understands and acknowledges that Purchaser’s obligations hereunder (i) the Company and the Guarantors are not in any way conditional uponrelying upon the truth and accuracy of the acknowledgements, representations, and agreements of the Purchaser set forth herein; (ii) none of the Company, the Guarantors, or qualified byany person acting on behalf of the foregoing has made any statement, Purchaser’s ability representation, or warranty, express or implied, to obtain financing it with respect to the Company, the Guarantors, or the offer or sale of any type or nature whatsoever (i.e.Securities, whether by way of debt, financing or equity investment or otherwise) to consummate other than the transactions contemplated herebyinformation included in the Disclosure Package. (f) The Purchaser represents that it has full power and authority and has taken all action necessary to authorize it to enter into and perform its obligations under this Agreement and all other documents or instruments contemplated hereby. Purchaser represents and warrants that this Agreement has been duly authorized, executed and delivered by Purchaser. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms. Purchaser represents and warrants understands that the executionSeries B Notes will bear a restrictive legend substantially in the following form or otherwise as required pursuant to the Amended Indenture: “THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, delivery and performance of this Agreement by Purchaser does not conflict with the organizational documents of PurchaserAS AMENDED (THE “SECURITIES ACT”), or with any lawAND MAY NOT BE OFFERED, statute or regulation applicable to PurchaserSOLD, or any mortgagePLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, indenture or other Agreement or agreement to which Purchaser is a party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on the transactions contemplated by this Agreement.THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501(a) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), OR