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

Representations, Warranties and Agreements of Purchaser. Purchaser hereby represents, warrants and agrees to and with Seller, as of the date hereof and as of the Closing Date, that: (a) Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the state of its organization; (b) Purchaser has the full power, right and authority to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement; (c) Each individual and/or entity signing this Agreement on behalf of Purchaser has been duly authorized by Purchaser to execute and deliver this Agreement on behalf of Purchaser, and Purchaser has duly authorized, executed and delivered this Agreement; (d) This Agreement and the other instruments and documents required to be delivered by Purchaser hereunder, when duly executed and delivered by Purchaser, shall constitute legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms; (e) 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; (f) With respect to the litigation involving the Property that has been filed by HCM Solutions, Inc. (“HCM”) against certain parties including the prior owners of the Property and Seller, in its capacity as lender and holder of the deed of trust, on which lender has since foreclosed (Case No. CIVDS1001489 in the Superior Court of the State of California for the County of San Bernardino, “HCM Litigation”), Purchaser agrees that, provided the Closing hereunder occurs, (A) Seller shall have no duties, obligations or liabilities to Purchaser or any other party arising out of or in connection with the HCM Litigation following Closing hereunder, and (B) that Purchaser Indemnitors shall indemnify, defend and save Seller harmless of, from and against any and all claims, loss, cost, damage, liability or expense, arising out of or in connection with the HCM litigation, and Seller may call upon Purchaser to defend any such claim or cause of action brought or asserted against Seller arising out of the HCM Litigation at the expense of Purchaser, with counsel designated by such Seller in its sole discretion; (g) PURCHASER ACKNOWLEDGES, REPRESENTS AND AGREES THAT IT HAS MADE ANY AND ALL INQUIRY, INVESTIGATION AND ANLYSIS DESIRED BY PURCHASER WITH RESPECT TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, AND HAS MADE ITS OWN DECISION TO ENTER INTO THIS AGREEMENT. EXCEPT FOR SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 8 OF THIS AGREEMENT AND/OR IN ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING, (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, CONCERNING THE PROPERTY, AND (II) ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR CORRESPONDENCE, IF ANY, WHICH IS OR MAY BE SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER WITH RESPECT TO THE PROPERTY IS SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS; (h) Purchaser (A) is a sophisticated entity with respect to the purchase of the Property and the assumption of the obligations thereunder, (B) is able to bear the economic risk associated with the purchase of the Property and the assumption of the obligations thereunder, (C) has adequate information to make an informed decision regarding the purchase of the Property and the assumption of the obligations thereunder, and (D) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the purchase of rights and assumption of liabilities of the type contemplated in this Agreement; (i) Neither Purchaser nor any of its affiliates has dealt or negotiated with, or engaged on its own behalf or for its benefit, any person or entity as an agent, broker, dealer or otherwise who is entitled to a commission or fee arising from the purchase of the Property by Purchaser pursuant to this Agreement; (j) No petition has been filed by or against Purchaser under the Federal Bankruptcy Code or any similar State or Federal Law; (k) To Purchaser’s knowledge, neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly for, or on behalf of, is 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 is otherwise a banned or blocked person, group, entity, or nation pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control, and Purchaser is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation. Purchaser is not engaging in this transaction, directly or indirectly, in violation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by Law or that the transaction or this Agreement is or will be in violation of Law. Purchaser has and will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to Closing; and (l) Purchaser represents and warrants that none of Purchaser’s assets constitute “plan assets” subject to Title I of the Employee Retirement Income Security Act of 1974, as amended and/or Section 4975 of the Internal Revenue Code. Purchaser’s representations and warranties in this Section 9 shall survive the Closing and not be merged herein.

Representations, Warranties and Agreements of Purchaser. Purchaser hereby represents, warrants warrants, acknowledges and agrees to and with Seller, as of the date hereof which representations, warranties and acknowledgments shall be deemed restated as of the Closing Date, that: (a) Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the state State of its organizationDelaware; (b) Purchaser has the full power, right power and authority to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement; (c) Each individual and/or entity signing this Agreement on behalf of Purchaser has been duly authorized by Purchaser to execute and deliver this Agreement on behalf of Purchaser, and . Purchaser has duly authorized, executed and delivered this Agreement; (d) This Agreement and authorized the other instruments and documents required to be delivered by Purchaser hereunder, when duly executed and delivered by Purchaser, shall constitute legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms; (e) The execution, delivery and performance of this Agreement by Agreement, and has duly executed and delivered this Agreement, and Purchaser does not conflict shall furnish to Seller reasonable evidence with the organizational documents of Purchaser, or with any law, statute or regulation applicable regard to Purchasersuch power and authority; (fc) With Purchaser is acquiring the Mortgage Loan for its own account and not with a present intention of a sale or other distribution thereof; the purchase of the Mortgage Loan is a legal investment for Purchaser under applicable laws; (d) Purchaser has the opportunity under this Agreement to conduct such due diligence review and analysis of the Mortgage Loan Documents, the Property, Property leases, property management records and related information, together with such records as are generally available to the public from local, county, state and federal authorities, record keeping offices and courts, as the Purchaser deems necessary, proper or appropriate in order to make a complete informed decision with respect to the litigation involving the Property that has been filed by HCM Solutions, Inc. (“HCM”) against certain parties including the prior owners purchase and acquisition of the Property and Seller, in its capacity as lender and holder of the deed of trust, on which lender has since foreclosed (Case No. CIVDS1001489 in the Superior Court of the State of California for the County of San Bernardino, “HCM Litigation”), Purchaser agrees that, provided the Closing hereunder occurs, (A) Seller shall have no duties, obligations or liabilities to Purchaser or any other party arising out of or in connection with the HCM Litigation following Closing hereunder, and (B) that Purchaser Indemnitors shall indemnify, defend and save Seller harmless of, from and against any and all claims, loss, cost, damage, liability or expense, arising out of or in connection with the HCM litigation, and Seller may call upon Purchaser to defend any such claim or cause of action brought or asserted against Seller arising out of the HCM Litigation at the expense of Purchaser, with counsel designated by such Seller in its sole discretionMortgage Loan; (ge) PURCHASER ACKNOWLEDGES, REPRESENTS ACKNOWLEDGES AND AGREES THAT IT HAS MADE ANY AND ALL INQUIRY, INVESTIGATION AND ANLYSIS DESIRED BY PURCHASER WITH RESPECT TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, AND HAS MADE ITS OWN DECISION TO ENTER INTO THIS AGREEMENT. EXCEPT FOR THE SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 8 6 OF THIS AGREEMENT AGREEMENT, SELLER HAS NOT AND DOES NOT REPRESENT, WARRANT OR COVENANT THE NATURE, ACCURACY, COMPLETENESS, ENFORCEABILITY OR VALIDITY OF ANY OF THE MORTGAGE LOAN DOCUMENTS, MORTGAGE LOAN FILES, PROPERTY MANAGEMENT RECORDS AND/OR COLLATERAL DOCUMENTS. EXCEPT FOR THE SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSINGSECTION 6 OF THIS AGREEMENT, (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, CONCERNING THE PROPERTY, AND (II) ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR CORRESPONDENCE, IF ANY, WHICH IS OR MAY BE SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER WITH RESPECT TO THE PROPERTY MORTGAGE LOAN IS SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS; (hf) Purchaser acknowledges that the Mortgage Loan is in default and that the Enforcement Action has been initiated; (Ag) is a sophisticated entity with respect to Purchaser acknowledges that the purchase of the Property Mortgage Loan and the assumption Mortgage Loan Documents may have limited or no liquidity and Purchaser has the financial ability to own the Mortgage Loan and the Mortgage Loan Documents for an indefinite period of the obligations thereunder, (B) is able time and to bear the economic risk associated with the of an outright purchase of the Property Mortgage Loan and the assumption Mortgage Loan Documents and a total loss of the obligations thereunder, Purchase Price for the Mortgage Loan; (Ch) has adequate information to make an informed decision regarding Purchaser acknowledges the purchase existence of the Property Mezzanine Loan and the assumption of the obligations thereunder, and (D) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the purchase of rights and assumption of liabilities of the type contemplated in this Intercreditor Agreement;; and (i) Neither Purchaser nor covenants, agrees, warrants and represents that Purchaser shall not institute any enforcement or legal action or proceeding in the name of its affiliates has dealt or negotiated withSeller, or engaged on its own behalf imply that Seller still owns the Mortgage Loan or for its benefitis in anyway involved in such enforcement or legal action. Purchaser also represents, any person or entity as an agentwarrants and covenants that Purchaser shall not knowingly misrepresent, brokermislead, dealer deceive, or otherwise who is entitled fail to a commission adequately disclose to the Borrower the identity of Purchaser. Purchaser further represents, warrants and covenants not to use, adopt, exploit, or fee arising from the purchase allude to Seller, or any name derived therefrom or confusingly similar therewith to promote Purchaser’s sale, enforcement, collection, or management of the Property by Purchaser pursuant to this Agreement; (j) No petition has been filed by or against Purchaser under the Federal Bankruptcy Code or any similar State or Federal Law; (k) To Purchaser’s knowledge, neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly for, or on behalf of, is 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 is otherwise a banned or blocked person, group, entity, or nation pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control, and Purchaser is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nationMortgage Loan. Purchaser is not engaging in this transactionagrees, directly or indirectlyacknowledges, in confirms and understands that there may be no adequate remedy at law for a violation of any Laws relating to drug traffickingthe terms, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by Law or that the transaction or this Agreement is or will be in violation of Law. Purchaser has provisions, conditions and will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to Closing; and (l) Purchaser represents and warrants that none of Purchaser’s assets constitute “plan assets” subject to Title I of the Employee Retirement Income Security Act of 1974, as amended and/or Section 4975 of the Internal Revenue Code. Purchaser’s representations and warranties limitations set forth in this Section 9 and Seller shall have the right to seek the entry of an order by a court of competent jurisdiction enjoining any violation hereof. The foregoing representations, warranties and agreements of Purchaser shall survive the execution of this Agreement and the Closing and not be merged hereinfor a period of six (6) months.

Representations, Warranties and Agreements of Purchaser. Purchaser hereby represents, warrants and agrees to and with Seller, as of the date hereof and as of the Closing Date, that: (a) Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws Foreign Sale of the state Shares by the Purchaser. Purchaser acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering material in connection with the issue of the Shares, in any country or jurisdiction outside the United States where action for that purpose is required. If outside the United States, Purchaser agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its organization;possession or distributes any offering material, in all cases at its own expense. (b) The Purchase Agreement. Purchaser has the full right, power, right authority and authority to execute, deliver and perform, and capacity to enter into this Agreement and to consummate all the transactions contemplated by this Agreement; (c) Each individual and/or entity signing this Agreement on behalf of Purchaser hereby and has been duly authorized by Purchaser taken all necessary action to execute and deliver this Agreement on behalf of Purchaser, and Purchaser has duly authorized, executed and delivered this Agreement; (d) This Agreement and authorize the other instruments and documents required to be delivered by Purchaser hereunder, when duly executed and delivered by Purchaser, shall constitute legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms; (e) The execution, delivery and performance of this Agreement. Upon the execution and delivery of this Agreement, this Agreement shall constitute a valid and binding obligation of Purchaser enforceable against the Purchaser in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Purchaser does not conflict with herein may be legally unenforceable. (c) Documents Received by Purchaser. Purchaser hereby acknowledges receipt of the organizational documents following documents: (i) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, its Quarterly Reports on Form 10-Q for the three-month periods ended March 31, 2001, June 30, 2001 and September 30, 2001, and its Proxy Statement for the Annual Meeting of PurchaserStockholders held on June 15, or with any law, statute or regulation applicable to Purchaser2001; (fii) With respect All other documents, if any, filed by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the Quarterly Report on Form 10-Q for the three-month period ended September 30, 2001 pursuant to the litigation involving the Property that has been filed by HCM Solutions, Inc. (“HCM”) against certain parties including the prior owners reporting requirements of the Property Exchange Act; and (iii) The Basic Prospectus and Sellerthe Registration Statement. (d) No Consents, in its capacity as lender and holder Approvals or Authorizations Required. No consent, approval, authorization, filing with or order of the deed of trust, on which lender has since foreclosed (Case No. CIVDS1001489 in the Superior Court of the State of California for the County of San Bernardino, “HCM Litigation”), Purchaser agrees that, provided the Closing hereunder occurs, (A) Seller shall have no duties, obligations any court or liabilities to Purchaser governmental agency or any other party arising out of or regulatory body is required in connection with the HCM Litigation following Closing hereunderperformance by Purchaser of its obligations under this Agreement, and (B) that Purchaser Indemnitors shall indemnify, defend and save Seller harmless of, from and against any and all claims, loss, cost, damage, liability except such as have been obtained or expense, arising out of made or in connection with the HCM litigation, and Seller may call upon Purchaser to defend any such claim or cause of action brought or asserted against Seller arising out of the HCM Litigation at the expense of Purchaser, with counsel designated are contemplated by such Seller in its sole discretion; (g) PURCHASER ACKNOWLEDGES, REPRESENTS AND AGREES THAT IT HAS MADE ANY AND ALL INQUIRY, INVESTIGATION AND ANLYSIS DESIRED BY PURCHASER WITH RESPECT TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, AND HAS MADE ITS OWN DECISION TO ENTER INTO THIS AGREEMENT. EXCEPT FOR SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 8 OF THIS AGREEMENT AND/OR IN ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING, (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, CONCERNING THE PROPERTY, AND (II) ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR CORRESPONDENCE, IF ANY, WHICH IS OR MAY BE SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER WITH RESPECT TO THE PROPERTY IS SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS; (h) Purchaser (A) is a sophisticated entity with respect to the purchase of the Property and the assumption of the obligations thereunder, (B) is able to bear the economic risk associated with the purchase of the Property and the assumption of the obligations thereunder, (C) has adequate information to make an informed decision regarding the purchase of the Property and the assumption of the obligations thereunder, and (D) has such knowledge and experience, and has made investments of a similar nature, so as Section 3 to be aware of the risks and uncertainties inherent in the purchase of rights and assumption of liabilities of the type contemplated in this Agreement; (i) Neither Purchaser nor any of its affiliates has dealt obtained or negotiated with, or engaged on its own behalf or for its benefit, any person or entity as an agent, broker, dealer or otherwise who is entitled to a commission or fee arising from the purchase of the Property by Purchaser pursuant to this Agreement; (j) No petition has been filed by or against Purchaser under the Federal Bankruptcy Code or any similar State or Federal Law; (k) To Purchaser’s knowledge, neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly for, or on behalf of, is 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 is otherwise a banned or blocked person, group, entity, or nation pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control, and Purchaser is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation. Purchaser is not engaging in this transaction, directly or indirectly, in violation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by Law or that the transaction or this Agreement is or will be in violation of Law. Purchaser has and will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to Closing; and (l) Purchaser represents and warrants that none of Purchaser’s assets constitute “plan assets” subject to Title I of the Employee Retirement Income Security Act of 1974, as amended and/or Section 4975 of the Internal Revenue Code. Purchaser’s representations and warranties in this Section 9 shall survive the Closing and not be merged hereinmade.

Representations, Warranties and Agreements of Purchaser. Purchaser hereby represents, represents and warrants to each Seller and agrees to and with Sellerthe Company, as of the date hereof and as of the Closing Date, thatas follows: (a) 3.1 Purchaser is a limited liability company partnership, duly organizedformed, validly existing existing, and in good standing under the laws of the state its jurisdiction of its organization; (b) Purchaser formation, and has the full power, right and authority power to execute, deliver and perform, carry on its business as it is now being conducted and to enter into and consummate all the transactions contemplated by this Agreement;. (c) Each individual and/or entity signing 3.2 The authorization, execution, delivery, and performance by Purchaser of this Agreement on behalf and the consummation of the transactions contemplated hereby are within the power and authority of Purchaser has and have been duly authorized by Purchaser to execute and deliver this Agreement all necessary action on behalf the part of Purchaser. The execution, delivery, and performance by Purchaser has duly authorized, executed and delivered of this Agreement; (d) This Agreement and the consummation of the transactions contemplated hereby, require no approval of, filing with, or other instruments action by Purchaser, by or in respect of, any Governmental Authority or any other person, other than (i) the expiration or termination of any applicable waiting periods (together with any extensions thereof) under the HSR Act, (ii) a filing of a Schedule 13D or 13G by the parties hereto, (iii) the filing with the SEC of such reports under the Exchange Act or the Securities Act as may be required in connection with this Agreement and documents required the transactions contemplated by this Agreement, (iv) such as has been previously obtained, made, or taken prior to the Closing Date or (v) such consents, approvals, orders, authorizations, registrations, qualifications, declarations and filings the failure of which to make or obtain would not, individually or in the aggregate, reasonably be delivered expected to prevent or materially delay or materially impair the ability of the Purchaser to consummate the transactions contemplated by Purchaser this Agreement and to perform its obligations hereunder, when . 3.3 This Agreement has been (a) duly executed and delivered by Purchaser, shall constitute Purchaser and (b) constitutes a legal, valid valid, and binding obligations obligation of Purchaser, enforceable against Purchaser in accordance with their its terms;, subject to applicable Law. (e) The execution, 3.4 Neither the execution and the delivery and performance of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority to which Purchaser is subject, or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which Purchaser is bound or to which any of the assets of Purchaser is subject, other than as would not reasonably be expected to have a Material Adverse Effect on Purchaser. 3.5 No broker or finder has acted for Purchaser in connection with this Agreement or the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such transactions based upon agreements, arrangements, or understandings made by Purchaser does not conflict with the organizational documents or on behalf of Purchaser. 3.6 Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the transactions contemplated under this Agreement. Purchaser is acquiring the Purchased Shares for its own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that such Purchaser has no present intention of selling, granting any participation in or otherwise distributing the same in any manner that violates the Securities Act. Purchaser represents that by reason of its, or with any lawof its management’s, statute or regulation applicable business and financial experience, Purchaser has the capacity to Purchaser; (f) With respect to evaluate the litigation involving the Property that has been filed by HCM Solutions, Inc. (“HCM”) against certain parties including the prior owners merits and risks of the Property and Seller, in its capacity as lender and holder of the deed of trust, on which lender has since foreclosed (Case No. CIVDS1001489 investment in the Superior Court of the State of California for the County of San Bernardino, “HCM Litigation”), Purchaser agrees that, provided the Closing hereunder occurs, (A) Seller shall have no duties, obligations or liabilities Purchased Shares and to Purchaser or any other party arising out of or protect its own interests in connection with the HCM Litigation following Closing hereundertransactions contemplated in this Agreement. Purchaser’s financial condition is such that it is able to bear all economic risks of investment in the Purchased Shares, including a complete loss of its investment. 3.7 Purchaser has received and reviewed information about the Company and has had an opportunity to discuss the Company’s business, management, and financial affairs with the Company’s management and to review the Company’s facilities. Purchaser believes it has received all the information it considers necessary or appropriate to decide whether to purchase the Purchased Shares. Purchaser understands and acknowledges that such discussions, as well as any written information issued with respect to the Company, (a) were intended to describe the aspects of the Company’s business and prospects that the Company believes to be material, but were not necessarily an exhaustive description, and (Bb) may have contained forward-looking statements involving known and unknown risks and uncertainties that may cause the Company’s actual results in future periods or plans for future periods to differ materially from what was anticipated, and that no representations or warranties were or are being made by the Sellers or the Company except as set forth in ARTICLE II and ARTICLE VII of this Agreement, respectively. The foregoing, however, does not limit or modify the representations and warranties of the Seller in ARTICLE II or the Company in ARTICLE VII of this Agreement or the right of Purchaser Indemnitors to rely thereon, or in any way restrict or otherwise limit Purchaser’s right to bring any action or proceeding based upon fraud. 3.8 Xxxx Capital Fund XI, L.P., a Cayman Islands limited partnership (“Sponsor”). has delivered to Sellers a true, complete and correct copy of an equity commitment letter dated as of the date hereof (the “Equity Commitment Letter”) from Sponsor pursuant to which Sponsor has agreed, subject to the terms and conditions thereof, to invest in Purchaser the amounts set forth therein. The Equity Commitment Letter is in full force and effect and is a legal, valid and binding obligation of the Sponsor, enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar applicable Laws affecting the enforcement of creditors’ rights in general and by the general principles of equity and the discretion of courts in granting equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity). The Equity Commitment Letter provides that each Seller is a third-party beneficiary thereof and is entitled to enforce such agreement, in each case, to the extent and subject to the terms and conditions thereof. The cash equity committed pursuant to the Equity Commitment Letter is collectively referred to in this Agreement as the “Equity Financing.” The proceeds of the Equity Financing, if funded in accordance with the Equity Commitment Letter at the Closing, shall indemnifyprovide Purchaser with the funds necessary at the Closing to purchase the Purchased Shares on the terms and conditions contemplated by this Agreement. 3.9 The information relating to Purchaser and its Affiliates that is or will be supplied in writing by Purchaser or its Affiliates for inclusion in the Information Statement (or any supplement thereto), defend and save Seller harmless of, from and against in any and all claims, loss, cost, damage, liability or expense, arising out of or other document filed with the SEC in connection with the HCM litigationtransactions contemplated hereby, and Seller may call upon Purchaser will not contain any untrue statement of a material fact or omit to defend any such claim or cause of action brought or asserted against Seller arising out state a material fact necessary in order to make the statements therein, in the light of the HCM Litigation at the expense of Purchasercircumstances under which they are made, with counsel designated by such Seller in its sole discretion; (g) PURCHASER ACKNOWLEDGES, REPRESENTS AND AGREES THAT IT HAS MADE ANY AND ALL INQUIRY, INVESTIGATION AND ANLYSIS DESIRED BY PURCHASER WITH RESPECT TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, AND HAS MADE ITS OWN DECISION TO ENTER INTO THIS AGREEMENT. EXCEPT FOR SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 8 OF THIS AGREEMENT AND/OR IN ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING, (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, CONCERNING THE PROPERTY, AND (II) ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR CORRESPONDENCE, IF ANY, WHICH IS OR MAY BE SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER WITH RESPECT TO THE PROPERTY IS SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS; (h) Purchaser (A) is a sophisticated entity with respect to the purchase of the Property and the assumption of the obligations thereunder, (B) is able to bear the economic risk associated with the purchase of the Property and the assumption of the obligations thereunder, (C) has adequate information to make an informed decision regarding the purchase of the Property and the assumption of the obligations thereunder, and (D) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the purchase of rights and assumption of liabilities of the type contemplated in this Agreement; (i) Neither Purchaser nor any of its affiliates has dealt or negotiated with, or engaged on its own behalf or for its benefit, any person or entity as an agent, broker, dealer or otherwise who is entitled to a commission or fee arising from the purchase of the Property by Purchaser pursuant to this Agreement; (j) No petition has been filed by or against Purchaser under the Federal Bankruptcy Code or any similar State or Federal Law; (k) To Purchaser’s knowledge, neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly for, or on behalf of, is 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 is otherwise a banned or blocked person, group, entity, or nation pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control, and Purchaser is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation. Purchaser is not engaging in this transaction, directly or indirectly, in violation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by Law or that the transaction or this Agreement is or will be in violation of Law. Purchaser has and will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to Closing; and (l) Purchaser represents and warrants that none of Purchaser’s assets constitute “plan assets” subject to Title I of the Employee Retirement Income Security Act of 1974, as amended and/or Section 4975 of the Internal Revenue Code. Purchaser’s representations and warranties in this Section 9 shall survive the Closing and not be merged hereinmisleading.