Common use of Contributor’s Representations and Warranties as to Contributor Clause in Contracts

Contributor’s Representations and Warranties as to Contributor. As a material inducement to REIT to execute this Agreement and consummate the Closing, Contributor represents and warrants to REIT with respect to itself, and only itself except as otherwise noted, that: (a) Contributor has been duly formed or organized as a limited liability company, is validly existing and is in good standing in the State of Delaware, and is authorized to exercise all its limited liability company powers, rights and privileges. (b) Contributor has the power and authority, under its Charter Documents, to own and operate its assets, to carry on its business as now conducted, and to enter into and perform its obligations under this Agreement. (c) All manager, member, or other action on the part of Contributor necessary for Contributor’s authorization, execution and delivery of this Agreement, and the performance of all obligations of Contributor hereunder and the completion of the Closing pursuant hereto, has been taken or will be taken prior to the Closing. This Agreement constitutes a legally binding and valid obligation of Contributor, enforceable against Contributor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (d) The execution and delivery of this Agreement by Contributor and the performance by Contributor and the Companies of their respective obligations pursuant hereto will not result in any material violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (x) any provision of Contributor’s or the Companies’ Charter Documents as such documents exist immediately prior to the Closing; (y) any provision of any judgment, decree or order to which Contributor or any of the Companies is a party or by which any of them or their respective property or assets are bound; or (z) any statute, rule or governmental regulation applicable to Contributor or the Companies, or their respective property or assets. (e) The execution and delivery of this Agreement by Contributor and the performance by Contributor of its obligations pursuant hereto will not result in any material violation of, be in material conflict with, or constitute a material default under, with or without the passage of time or the giving of notice, any material contract or agreement to which Contributor is a party or by which it is bound, assuming the satisfaction of the Transaction Conditions. (f) The execution, delivery and performance by Contributor of this Agreement does not require the consent, approval, notice, clearance, waiver, order or authorization of any Person or Governmental Authority that has not been obtained or given, except as related to the satisfaction of the Transaction Conditions (or in the case of KeyBank, will be obtained prior to Closing or the need for such consent of KeyBank will be rendered moot as of Closing) (only consent required by BEMT Springhouse being excluded herefrom). (g) There is no action, suit, proceeding or investigation pending or, to the knowledge of Contributor, threatened in writing against Contributor that challenges the validity of this Agreement or the right of Contributor to enter into this Agreement, or that might result, either individually or in the aggregate, in Contributor’s inability to perform its obligations under this Agreement. There is no material judgment, decree or order of any court, arbitrator, tribunal or governmental or similar authority in effect against Contributor or any of the Companies, and neither Contributor nor any of the Companies is in material default with respect to any order or any court, arbitrator, tribunal or governmental or similar authority binding upon Contributor or any of the Companies or by which any of them or their respective property or assets are bound, that would prevent Contributor from performing its obligations under this Agreement. (h) Contributor is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any such employee benefit plan or plans. (i) Contributor is not acting, directly or to its knowledge indirectly for, or on behalf of, any person, group, entity or nation named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked person, entity, or nation pursuant to any Law that is enforced or administered by the U.S. Office of Foreign Assets Control, and is not engaging in the transactions described herein, directly or to its knowledge indirectly, on behalf of, or instigating or facilitating the transactions described herein, directly or to its knowledge indirectly, on behalf of, any such person, group, entity or nation. (j) Contributor is not insolvent and will not become insolvent by executing or performing its obligations under this Agreement or the documents to be executed in connection herewith.

Contributor’s Representations and Warranties as to Contributor. As a material inducement to REIT Operating Partnership to execute this Agreement and consummate the Closing, Contributor represents and warrants to REIT Operating Partnership with respect to itself, and only itself except as otherwise noted, that: (a) Contributor has been duly formed or organized as a limited liability company, is validly existing and is in good standing in the State of Delaware, and is authorized to exercise all its limited liability company powers, rights and privileges. (b) Contributor has the power and authority, under its Charter Documents, to own and operate its assets, to carry on its business as now conducted, and to enter into and perform its obligations under this Agreement. (c) All manager, member, or other action on the part of Contributor necessary for Contributor’s authorization, execution and delivery of this Agreement, and the performance of all obligations of Contributor hereunder and the completion of the Closing pursuant hereto, has been taken or will be taken prior to the Closing. This Agreement constitutes a legally binding and valid obligation of Contributor, enforceable against Contributor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (d) The execution and delivery of this Agreement by Contributor and the performance by Contributor and the Companies of their respective its obligations pursuant hereto will not result in any material violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (x) any provision of Contributor’s or the Companies’ Charter Documents as such documents exist immediately prior to the Closing; (y) any provision of any judgment, decree or order to which Contributor or any of the Companies is a party or by which any of them it or their respective its property or assets are bound; or (z) any statute, rule or governmental regulation applicable to Contributor or the Companies, or their respective its property or assets. (e) The execution and delivery of this Agreement by Contributor and the performance by Contributor of its obligations pursuant hereto will not result in any material violation of, be in material conflict with, or constitute a material default under, with or without the passage of time or the giving of notice, any material contract or agreement to which Contributor is a party or by which it is bound, assuming the satisfaction of the Transaction Conditions. (f) The execution, delivery and performance by Contributor of this Agreement does not require the consent, approval, notice, clearance, waiver, order or authorization of any Person or Governmental Authority that has not been obtained or given, except as related to the satisfaction of the Transaction Conditions (or in the case of KeyBank, will be obtained prior to Closing or the need for such consent of KeyBank will be rendered moot as of Closing) (only consent required by BEMT Springhouse being excluded herefrom)Conditions. (g) There is no action, suit, proceeding or investigation pending or, to the knowledge of Contributor, threatened in writing against Contributor that challenges the validity of this Agreement or the right of Contributor to enter into this Agreement, or that might result, either individually or in the aggregate, in Contributor’s inability to perform its obligations under this Agreement. There is no material judgment, decree or order of any court, arbitrator, tribunal or governmental or similar authority in effect against Contributor or any of the CompaniesContributor, and neither Contributor nor any of the Companies is not in material default with respect to any order or any court, arbitrator, tribunal or governmental or similar authority binding upon Contributor or any of the Companies or by which any of them it or their respective its property or assets are bound, that would prevent Contributor from performing its obligations under this Agreement. (h) Contributor is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended amended, or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any such employee benefit plan or plans. (i) Contributor is not acting, directly or to its knowledge indirectly for, or on behalf of, any person, group, entity or nation named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked person, entity, or nation pursuant to any Law that is enforced or administered by the U.S. Office of Foreign Assets Control, and is not engaging in the transactions described herein, directly or to its knowledge indirectly, on behalf of, or instigating or facilitating the transactions described herein, directly or to its knowledge indirectly, on behalf of, any such person, group, entity or nation. (j) Contributor is not insolvent and will not become insolvent by executing or performing its obligations under this Agreement or the documents to be executed in connection herewith. (k) Contributor is acquiring the OP Units for its own account for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof. Contributor understands that the OP Units have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available. Contributor is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act).

Contributor’s Representations and Warranties as to Contributor. As a material inducement to REIT to execute this Agreement and consummate the Closing, Contributor represents and warrants to REIT with respect to itself, and only itself except as otherwise noted, that: (a) Contributor has been duly formed or organized as a limited liability company, is validly existing and is in good standing in the State of Delaware, and is authorized to exercise all its limited liability company powers, rights and privileges. (b) Contributor has the power and authority, under its Charter Documents, to own and operate its assets, to carry on its business as now conducted, and to enter into and perform its obligations under this Agreement. (c) All manager, member, or other action on the part of Contributor necessary for Contributor’s authorization, execution and delivery of this Agreement, and the performance of all obligations of Contributor hereunder and the completion of the Closing pursuant hereto, hereto has been taken or will be taken prior to the Closing. This Agreement constitutes a legally binding and valid obligation of Contributor, enforceable against Contributor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (d) The execution and delivery of this Agreement by Contributor and the performance by Contributor and the Companies of their respective obligations pursuant hereto will not result in any material violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (x) any provision of Contributor’s or the Companies’ Charter Documents as such documents exist immediately prior to the Closing; (y) any provision of any judgment, decree or order to which Contributor or any of the Companies is a party or by which any of them or their respective property or assets are bound; or (z) any statute, rule or governmental regulation applicable to Contributor or the Companies, or their respective property or assets. (e) The execution and delivery of this Agreement by Contributor and the performance by Contributor of its obligations pursuant hereto will not result in any material violation of, be in material conflict with, or constitute a material default under, with or without the passage of time or the giving of notice, any material contract or agreement to which Contributor is a party or by which it is bound, assuming the satisfaction of the Transaction Conditions. (f) The execution, delivery and performance by Contributor of this Agreement does not require the consent, approval, notice, clearance, waiver, order or authorization of any Person or Governmental Authority that has not been obtained or given, except as related to the satisfaction of the Transaction Conditions (or in the case of KeyBank, will be obtained prior to Closing or the need for such consent of KeyBank will be rendered moot as of Closing) (only consent required by BEMT Springhouse being excluded herefrom). (g) There is no action, suit, proceeding or investigation pending or, to the knowledge of Contributor, threatened in writing against Contributor that challenges the validity of this Agreement or the right of Contributor to enter into this Agreement, or that might result, either individually or in the aggregate, in Contributor’s inability to perform its obligations under this Agreement. There is no material judgment, decree or order of any court, arbitrator, tribunal or governmental or similar authority in effect against Contributor or any of the Companies, and neither Contributor nor any of the Companies is in material default with respect to any order or any court, arbitrator, tribunal or governmental or similar authority binding upon Contributor or any of the Companies or by which any of them or their respective property or assets are bound, that would prevent Contributor from performing its obligations under this Agreement. (h) Contributor is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any such employee benefit plan or plans. (i) Contributor is not acting, directly or or, to its knowledge knowledge, indirectly for, or on behalf of, any person, group, entity or nation named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked person, entity, or nation pursuant to any Law that is enforced or administered by the U.S. Office of Foreign Assets Control, and is not engaging in the transactions described herein, directly or to its knowledge indirectly, on behalf of, or instigating or facilitating the transactions described herein, directly or to its knowledge indirectly, on behalf of, any such person, group, entity or nation. (j) Contributor is not insolvent and will not become insolvent by executing or performing its obligations under this Agreement or the documents to be executed in connection herewith. (k) Contributor is acquiring the REIT Shares for its own account for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof. Contributor understands that the REIT Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available. Contributor is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act).