REPRESENTATIONS AND WARRANTIES OF PURCHASER AND ADVISOR. Purchaser and Advisor represent and warrant to and agree with EPR as follows with respect to Shares owned by Purchaser and under the Advisor’s management on behalf of certain funds and client accounts:
2.1 No 9.8% Individual (with Attribution). In connection with, and as a condition to, the grant by the Board of an exemption from the Ownership Limit to permit the Purchaser and Advisor, on behalf of certain funds or client accounts, to hold up to an aggregate of 15% (but not more than 15%), as determined by reference to liquidation value, of the issued and outstanding Series C Shares, Purchaser and Advisor represent and warrant to EPR and covenant that to their actual knowledge that no person or entity who would be considered to be an “individual” for purposes of Section 542(a)(2) of the Code, and who beneficially owns Waiver Shares through Purchaser and discretionary accounts or funds managed by the Advisor, would be considered to be, after taking into account the ownership attribution rules under Section 544 of the Code (as modified by Sections 856(h)(1)(B) and 856(h)(3) of the Code), the beneficial owner of more than 9.8% of the issued and outstanding Series C Shares in number or measured value (not liquidation value), whichever is more restrictive.
2.2 No 9.8% Owner (with Attribution). Purchaser and Advisor further represent and warrant to EPR and covenant that to their actual knowledge at this time, and at all future dates while this waiver is outstanding, the Purchaser’s ownership of any of EPR’s Shares and ownership of any of EPR’s Shares by certain funds or client accounts under Advisor’s discretionary authority together with any person or entity whose ownership of EPR’s Shares would be attributed to the Purchaser or the Advisor’s client(s) under Section 318(a) of the Code (as modified by Section 856(d)(5) of the Code) does not, and shall not exceed 9.8% (by number of Shares, voting or value, whichever is most restrictive) of the total issued and outstanding Shares of EPR (whether or not such ownership causes EPR to be “closely held” under the REIT rules).
