Common use of Representations, Warranties and Agreements of Company Clause in Contracts

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 of the Underwriting Agreement (the “Underwriting Agreement”), dated as of May 17, 2017, among Company and Xxxxxx Xxxxxxx & Co. LLC, BNP Paribas Securities Corp. and Citigroup Global Markets Inc., as managers for the Underwriters (the “Underwriters”) party thereto, is true and correct and is hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment Date, that: (i) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (ii) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of (i) the Certificate of Incorporation or the Amended and Restated By-Laws of Company, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. (iii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (iv) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (v) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended. (vi) Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amended. (vii) Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares. (viii) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) Shares, except for the reporting requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. (ix) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (x) Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. (xi) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no provision in the Certificate of Incorporation of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.

Representations, Warranties and Agreements of Company. (a) The Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 of the Underwriting Agreement (the “Underwriting Agreement”)Mortgage Loan Seller, dated as of May 17, 2017, among Company and Xxxxxx Xxxxxxx & Co. LLC, BNP Paribas Securities Corp. and Citigroup Global Markets Inc., as managers for the Underwriters (the “Underwriters”) party thereto, is true and correct and is hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment Datedate hereof (or such other date as is specified in the related representation or warranty), thatas follows: (i) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Company to perform its obligations hereunder, and the Company has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform its obligations in respect of this Agreement and all the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation transactions contemplated hereby; (ii) This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes its a valid and binding obligationobligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable except as such enforcement may be limited by bankruptcy, reorganization, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ ' rights generally and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.law); (iiiii) Neither the The execution and delivery of this Confirmation nor Agreement by the incurrence or Company and the performance of its obligations of Company hereunder will not conflict with any provision of any law or regulation to which the Company is subject, or conflict with, result in a breach of (i) or constitute a default under any of the Certificate terms, conditions or provisions of Incorporation any of the Company's organizational documents or any agreement or instrument to which the Amended and Restated By-Laws of Company, (ii) any applicable law Company is a party or regulationby which it is bound, or any orderlaw, rule, regulation, judgment, writ, injunction injunction, order or decree applicable to the Company, or result in the creation or imposition of any lien on any of the Company's assets or property, in each case which would materially and adversely affect the ability of the Company to carry out the transactions contemplated by this Agreement; (iv) There is no action, suit, proceeding or investigation pending or to the knowledge of the Company, threatened against the Company in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Company contemplated herein, or which would be likely to impair materially the ability of the Company to perform under the terms of this Agreement; (v) The Company is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental authority or agency, which default might have consequences that would materially and adversely affect the condition (financial or (iiiother) any agreement or instrument to which operations of the Company or any of its subsidiaries is a party properties or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien might have consequences that would not, individually or in the aggregate, have a material adverse effect on Company materially and adversely affect its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations performance hereunder.; (iiivi) No consent, approval, authorization, authorization or order of, of any court or filing with, any governmental agency or body or any court is required in connection with for the execution, delivery or and performance by the Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (iv) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated compliance by the terms of Company with this Agreement or the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (v) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended. (vi) Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, by this Agreement other than a person those that is an eligible contract participant under Section 1a(18)(C) of have been obtained by the Commodity Exchange Act, as amended.Company; and (vii) Under GAAP and for federal income tax purposes, the Company and each will report the transfer of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or Mortgage Loans by the Shares. (viii) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable Mortgage Loan Seller to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates Company as a result of Dealer or its affiliates owning or holding (however defined) Shares, except for the reporting requirements sale of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. (ix) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (x) Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. (xi) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no provision in the Certificate of Incorporation of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable Mortgage Loans to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesCompany.

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 of the Underwriting Agreement (the “Underwriting Agreement”), dated as of May 1728, 20172015, among Company and Xxxxxx Xxxxxxx & Co. LLC, LLC and BNP Paribas Securities Corp. and Citigroup Global Markets Inc.Corp., as managers for the Underwriters (the “Underwriters”) party thereto, is true and correct and is hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment Date, that: (i) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (ii) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of (i) the Certificate of Incorporation or the Amended and Restated By-Laws of Company, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. (iii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (iv) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (v) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended. (vi) Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amended. (vii) Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares. (viii) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) Shares, except for the reporting requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. (ix) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (x) Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. (xi) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no provision in the Certificate of Incorporation of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each Each of the representations and warranties of Company set forth in Section 1 of the Underwriting Purchase Agreement (the “Underwriting Purchase Agreement”), dated as of May 17October 10, 20172013, among between Company and Xxxxxx Xxxxxxx & Co. LLC, BNP Paribas Securities Corp. and Citigroup Global Markets Inc.Inc. and X.X. Xxxxxx Securities LLC, as managers for representatives of the Underwriters Initial Purchasers party thereto (the “UnderwritersInitial Purchasers”) party thereto), is was true and correct and is hereby deemed to be repeated to Dealer as if set forth hereinof the Trade Date. Company hereby further represents and warrants to to, and agrees with, Dealer on as of the date hereof, Trade Date and on and as of the Premium Payment DateDate and the Amendment and Restatement Date and, in the case of the representations in Section ‎8(d), at all times until termination of the Transaction, that: (ia) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Amended and Restated Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (iib) Neither the execution and delivery of this Amended and Restated Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (ior any equivalent documents) the Certificate of Incorporation or the Amended and Restated By-Laws of Company, (ii) or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. (iiic) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Amended and Restated Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (ivd) A number of Shares comprising the Basket equal to the each applicable Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (ve) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, ” as such term is defined in the Investment Company Act of 1940, as amended. (vif) Company is an “eligible contract participant”, ” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, and CFTC regulations (17 CFR § 1.3)), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amendedbecause it is a corporation, partnership, organization, trust, or other entity (other than a commodity pool or a proprietorship) that has total assets exceeding $10,000,000. (viig) Company and each of its controlled affiliates is not, on the date hereofof this representation, in possession of any material non-public information with respect to Company or the any Shares. (viiih) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the any Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) such Shares, except for ; provided that Company makes no representation or warranty regarding any such requirement that is applicable generally to the reporting requirements ownership of the Securities and Exchange Act equity securities by Dealer or its affiliates solely as a result of 1934, as amended (the “Exchange Act”) and the rules promulgated thereundertheir being a financial institution or broker-dealer. (ixi) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million. (xj) Without limiting the generality of Section 13.1 of the Equity Definitions, Company acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project. (A) The assets of Company at their fair valuation exceed the liabilities of Company, including contingent liabilities, (B) the capital of Company is adequate to conduct the business of Company and (C) Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature. (l) Company understands no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that notwithstanding such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency. (m) On each day during the period starting on the First Expiration Date and ending on the last Expiration Date, neither Company nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other relationship between derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer. (n) Company has not and Dealer will not directly or indirectly violate any applicable law (including, without limitation, the Securities Act and its affiliates, the Exchange Act) in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereofTransaction. (xio) Assuming compliance by Prior to the Amendment and Restatement Date, Company shall deliver to Dealer a resolution of Company’s board of directors or an authorized committee thereof authorizing the amendment and its affiliates with restatement of the covenant set forth in Section 9(dd)Transaction and such other certificate or certificates as Dealer shall reasonably request including but not limited to an incumbency certificate, no provision in dated as of the Certificate of Incorporation Amendment and Restatement Date, of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Sharesin customary form.

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each Each of the representations and warranties of Company set forth in Section 1 of the Underwriting Purchase Agreement (the “Underwriting Purchase Agreement”), dated as of May 17October 10, 20172013, among between Company and Xxxxxx Xxxxxxx & Co. LLC, BNP Paribas Securities Corp. and Citigroup Global Markets Inc.Inc. and X.X. Xxxxxx Securities LLC, as managers for representatives of the Underwriters Initial Purchasers party thereto (the “UnderwritersInitial Purchasers”) party thereto), is was true and correct and is hereby deemed to be repeated to Dealer as if set forth hereinof the Trade Date. Company hereby further represents and warrants to to, and agrees with, Dealer on as of the date hereof, Trade Date and on and as of the Premium Payment DateDate and the Amendment and Restatement Date and, in the case of the representations in Section 8(d), at all times until termination of the Transaction, that: (ia) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Amended and Restated Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (iib) Neither the execution and delivery of this Amended and Restated Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of the certificate of incorporation or by‑laws (ior any equivalent documents) the Certificate of Incorporation or the Amended and Restated By-Laws of Company, (ii) or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. (iiic) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Amended and Restated Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (ivd) A number of Shares comprising the Basket equal to the each applicable Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully fully-paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (ve) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, ” as such term is defined in the Investment Company Act of 1940, as amended. (vif) Company is an “eligible contract participant”, ” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, and CFTC regulations (17 CFR § 1.3)), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amendedbecause it is a corporation, partnership, organization, trust, or other entity (other than a commodity pool or a proprietorship) that has total assets exceeding $10,000,000. (viig) Company and each of its controlled affiliates is not, on the date hereofof this representation, in possession of any material non-public information with respect to Company or the any Shares. (viiih) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the any Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) such Shares, except for ; provided that Company makes no representation or warranty regarding any such requirement that is applicable generally to the reporting requirements ownership of the Securities and Exchange Act equity securities by Dealer or its affiliates solely as a result of 1934, as amended (the “Exchange Act”) and the rules promulgated thereundertheir being a financial institution or broker-dealer. (ixi) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million. (xj) Without limiting the generality of Section 13.1 of the Equity Definitions, Company acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project. (A) The assets of Company at their fair valuation exceed the liabilities of Company, including contingent liabilities, (B) the capital of Company is adequate to conduct the business of Company and (C) Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature. (l) Company understands no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that notwithstanding such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency. (m) On each day during the period starting on the First Expiration Date and ending on the last Expiration Date, neither Company nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other relationship between derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer. (n) Company has not and Dealer will not directly or indirectly violate any applicable law (including, without limitation, the Securities Act and its affiliates, the Exchange Act) in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereofTransaction. (xio) Assuming compliance by Prior to the Amendment and Restatement Date, Company shall deliver to Dealer a resolution of Company’s board of directors or an authorized committee thereof authorizing the amendment and its affiliates with restatement of the covenant set forth in Section 9(dd)Transaction and such other certificate or certificates as Dealer shall reasonably request including but not limited to an incumbency certificate, no provision in dated as of the Certificate of Incorporation Amendment and Restatement Date, of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Sharesin customary form.

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 [1] of the Underwriting Purchase Agreement (the “Underwriting Purchase Agreement”), dated as of May 17October 1, 20172014, among between Company and Xxxxxx Xxxxxxx & Co. LLC, BNP Paribas Securities Corp. and Citigroup Global Markets Inc., as managers for representative of the Underwriters Initial Purchasers (the “UnderwritersInitial Purchasers”) party thereto, is true and correct and is hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment DateDate and, in the case of the representations in Section 8(a)(iv), at all times until termination of the Transaction, that: (i) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (ii) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of (i) the Certificate certificate of Incorporation incorporation or the Amended and Restated Byby-Laws laws (or any equivalent documents) of Company, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended February 28, 2014, as updated by any subsequent filings, to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, exceptinstrument other than, in the case of clause (iii) above), for any such conflict, breach, default or lien that would not, individually or in the aggregate, not have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or Company’s ability of Company to execute and deliver this Confirmation or perform its obligations hereunderunder the Transaction. (iii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (iv) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (v) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended. (vi) Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amended. (vii) Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares. (viii) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) Shares, except for the reporting requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. (ix) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (xA) The assets of Company at their fair valuation exceed the liabilities of Company, including contingent liabilities, (B) the capital of Company is adequate to conduct the business of Company and (C) Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature. (xi) Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. (xib) Assuming compliance by Dealer On or prior to the Premium Payment Date, the Warrant Shares shall be approved for listing on the Exchange, subject to official notice of issuance. (c) During the period beginning on, and its affiliates with including, the covenant set forth first Expiration Date and ending on, and including, the last Expiration Date (the “Settlement Period”) and on any other Exercise Date, neither Company nor any “affiliate” or “affiliated purchaser” (each as defined in Section 9(dd), no provision in Rule 10b-18 (“Rule 10b-18”) of the Certificate Securities Exchange Act of Incorporation of Company or the Amended and Restated By-Laws of Company (each1934, as amended from time (the “Exchange Act”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to timepurchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) applicable or any security convertible into or exchangeable or exercisable for Shares, except through Dealer. (d) Company agrees that it (i) will not during the Settlement Period make, or permit to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction or potential Merger Transaction unless such public announcement is made prior to the Shares would give rise opening or after the close of the regular trading session on the Exchange for the Shares; (ii) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any reporting, consent, registration or other requirement such announcement that such announcement has been made; and (including without limitation a requirement iii) shall promptly (but in any event prior to obtain prior approval from any person or entitythe next opening of the regular trading session on the Exchange) as a result of provide Dealer or its affiliates owning or holding with written notice specifying (however definedA) Shares.Company’s average

Representations, Warranties and Agreements of Company. (a) Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 of the Underwriting Purchase Agreement (the “Underwriting Purchase Agreement”), dated as of May 17September [ ], 20172014, among between Company and Xxxxxx Xxxxxxx & Co. LLCLLC and Xxxxxxx, BNP Paribas Securities Corp. and Citigroup Global Markets Inc.Xxxxx & Co., as managers for representatives of the Underwriters Initial Purchasers (the “UnderwritersInitial Purchasers”) party thereto, is true and correct and is hereby deemed to be repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment DateDate and, in the case of the representations in Section 8(a)(iv), at all times until termination of the Transaction, that: (i) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and 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) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (ii) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (ior any equivalent documents) the Certificate of Incorporation or the Amended and Restated By-Laws of Company, (ii) or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2013, as updated by any subsequent filings, to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries, taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. (iii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. (iv) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. In addition, Company covenants and agrees that, at all times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. (v) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended. (vi) Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act, as amended. (vii) Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares. (viii) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its affiliates owning or holding (however defined) Shares, except for the reporting requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. (ix) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (x) Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. (xi) Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no provision in the Certificate of Incorporation of Company or the Amended and Restated By-Laws of Company (each, as amended from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.of