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

Representations, Warranties and Agreements of Purchaser. Purchaser represents and warrants to each Seller and the Company, as of the date hereof and as of the Closing Date, as follows: 3.1 Purchaser is a limited partnership, duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation, and has the power to carry on its business as it is now being conducted and to consummate the transactions contemplated by this Agreement. 3.2 The authorization, execution, delivery, and performance by Purchaser of this Agreement and the consummation of the transactions contemplated hereby are within the power and authority of Purchaser and have been duly authorized by all necessary action on the part of Purchaser. The execution, delivery, and performance by Purchaser of this Agreement and the consummation of the transactions contemplated hereby, require no approval of, filing with, or other 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 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 expected to prevent or materially delay or materially impair the ability of the Purchaser to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. 3.3 This Agreement has been (a) duly executed and delivered by Purchaser and (b) constitutes a legal, valid, and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to applicable Law. 3.4 Neither the execution and the delivery 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 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 of its management’s, business and financial experience, Purchaser has the capacity to evaluate the merits and risks of its investment in the Purchased Shares and to protect its own interests in connection with the transactions 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 (b) 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 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 provide 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), and in any other document filed with the SEC in connection with the transactions contemplated hereby, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

Representations, Warranties and Agreements of Purchaser. Purchaser represents hereby represents, warrants, acknowledges and warrants agrees to each Seller and the Companywith Seller, as of the date hereof which representations, warranties and acknowledgments shall be deemed restated as of the Closing Date, as followsthat: 3.1 (a) Purchaser is a limited partnership, liability company duly formedorganized, validly existing, existing and in good standing under the laws of its jurisdiction the State of formationDelaware; (b) Purchaser has the full power and authority to execute, deliver and perform, and has the power to carry on its business as it is now being conducted enter into and to consummate the all transactions contemplated by this Agreement. 3.2 The authorization, . Purchaser has duly authorized the execution, deliverydelivery and performance of this Agreement, and performance has duly executed and delivered this Agreement, and Purchaser shall furnish to Seller reasonable evidence with regard to such power and authority; (c) 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 purchase and acquisition of the Mortgage Loan; (e) PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE SELLER’S WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 6 OF THIS 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 SECTION 6 OF THIS AGREEMENT, 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 MORTGAGE LOAN IS SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO PURCHASER ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS; (f) Purchaser acknowledges that the Mortgage Loan is in default and that the Enforcement Action has been initiated; (g) Purchaser acknowledges that the Mortgage Loan and the 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 time and to bear the economic risk of an outright purchase of the Mortgage Loan and the Mortgage Loan Documents and a total loss of the Purchase Price for the Mortgage Loan; (h) Purchaser acknowledges the existence of the Mezzanine Loan and the Intercreditor Agreement; and (i) Purchaser covenants, agrees, warrants and represents that Purchaser shall not institute any enforcement or legal action or proceeding in the name of Seller, or imply that Seller still owns the Mortgage Loan or is in anyway involved in such enforcement or legal action. Purchaser also represents, warrants and covenants that Purchaser shall not knowingly misrepresent, mislead, deceive, or otherwise fail to adequately disclose to the Borrower the identity of Purchaser. Purchaser further represents, warrants and covenants not to use, adopt, exploit, or allude to Seller, or any name derived therefrom or confusingly similar therewith to promote Purchaser’s sale, enforcement, collection, or management of the Mortgage Loan. Purchaser agrees, acknowledges, confirms and understands that there may be no adequate remedy at law for a violation of the terms, provisions, conditions and limitations set forth in this Section 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 consummation Closing for a period of the transactions contemplated hereby are within the power and authority of Purchaser and have been duly authorized by all necessary action on the part of Purchaser. The execution, delivery, and performance by Purchaser of this Agreement and the consummation of the transactions contemplated hereby, require no approval of, filing with, or other action by Purchaser, by or in respect of, any Governmental Authority or any other person, other than six (i6) 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 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 expected to prevent or materially delay or materially impair the ability of the Purchaser to consummate the transactions contemplated by this Agreement and to perform its obligations hereundermonths. 3.3 This Agreement has been (a) duly executed and delivered by Purchaser and (b) constitutes a legal, valid, and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to applicable Law. 3.4 Neither the execution and the delivery 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 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 of its management’s, business and financial experience, Purchaser has the capacity to evaluate the merits and risks of its investment in the Purchased Shares and to protect its own interests in connection with the transactions 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 (b) 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 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 provide 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), and in any other document filed with the SEC in connection with the transactions contemplated hereby, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

Representations, Warranties and Agreements of Purchaser. (a) Foreign Sale of the Shares by the Purchaser. Purchaser acknowledges, represents and warrants to each Seller and agrees that no action has been or will be taken in any jurisdiction outside the Company, as United States by the Company that would permit an offering of the date hereof and as Shares, or possession or distribution of offering material in connection with the issue of the Closing DateShares, as follows: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 possession or distributes any offering material, in all cases at its own expense. 3.1 (b) The Purchase Agreement. Purchaser is a limited partnershiphas full right, duly formedpower, validly existing, authority and in good standing under the laws of its jurisdiction of formation, and has the power capacity to carry on its business as it is now being conducted enter into this Agreement and to consummate the transactions contemplated by this Agreement. 3.2 The authorization, execution, delivery, hereby and performance by Purchaser of this Agreement and the consummation of the transactions contemplated hereby are within the power and authority of Purchaser and have been duly authorized by has taken all necessary action on to authorize the part of Purchaser. The execution, delivery, delivery and performance by Purchaser of this Agreement Agreement. Upon the execution and the consummation delivery of the transactions contemplated hereby, require no approval of, filing with, or other 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 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 expected to prevent or materially delay or materially impair the ability of the Purchaser to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. 3.3 This Agreement has been (a) duly executed and delivered by Purchaser and (b) constitutes shall constitute a legal, valid, valid and binding obligation of Purchaser, Purchaser enforceable against the Purchaser in accordance with its terms, subject to applicable Law. 3.4 Neither the execution and the delivery 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 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 of its management’s, business and financial experience, Purchaser has the capacity to evaluate the merits and risks of its investment in the Purchased Shares and to protect its own interests in connection with the transactions 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 (b) 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 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 applicable bankruptcy, insolvency, reorganization, moratorium or other similar applicable Laws laws relating to or affecting the enforcement of creditors’ ' and contracting parties' rights in general generally and by the except as enforceability may be subject to general principles of equity and the discretion of courts in granting equitable remedies (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law or in equity)law) and except as the indemnification agreements of the Purchaser herein may be legally unenforceable. (c) Documents Received by Purchaser. Purchaser hereby acknowledges receipt of the following documents: (i) The Equity Commitment Letter provides that each Seller is a thirdCompany's Annual Report on Form 10-party beneficiary thereof 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 is entitled to enforce such agreementSeptember 30, in each case2001, to and its Proxy Statement for the extent Annual Meeting of Stockholders held on June 15, 2001; (ii) All other documents, if any, filed by the Company with the Securities and subject to Exchange Commission (the terms and conditions thereof. The cash equity committed "SEC") since the filing of the Quarterly Report on Form 10-Q for the three-month period ended September 30, 2001 pursuant to the Equity Commitment Letter is collectively referred to in this Agreement as the “Equity Financing.” The proceeds reporting requirements of the Equity Financing, if funded in accordance with Exchange Act; and (iii) The Basic Prospectus and the Equity Commitment Letter at the Closing, shall provide Purchaser with the funds necessary at the Closing to purchase the Purchased Shares on the terms and conditions contemplated by this AgreementRegistration Statement. 3.9 The information relating to Purchaser and its Affiliates that (d) No Consents, Approvals or Authorizations Required. No consent, approval, authorization, filing with or order of any court or governmental agency or regulatory body is or will be supplied in writing by Purchaser or its Affiliates for inclusion in the Information Statement (or any supplement thereto), and in any other document filed with the SEC required in connection with the transactions performance by Purchaser of its obligations under this Agreement, except such as have been obtained or made or are contemplated hereby, will not contain any untrue statement of a material fact by Section 3 to be obtained or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

Representations, Warranties and Agreements of Purchaser. Purchaser represents hereby represents, warrants and warrants agrees to each Seller and the Companywith Seller, as of the date hereof and as of the Closing Date, as followsthat: 3.1 (a) Purchaser is a limited partnership, liability company duly formedorganized, validly existing, existing and in good standing under the laws of the state of its jurisdiction of formationorganization; (b) Purchaser has the full power, right and authority to execute, deliver and perform, and has the power to carry on its business as it is now being conducted enter into and to consummate the all transactions contemplated by this Agreement.; 3.2 The authorization, execution, delivery, and performance by Purchaser of (c) Each individual and/or entity signing this Agreement and the consummation of the transactions contemplated hereby are within the power and authority on behalf of Purchaser and have has been duly authorized by all necessary action Purchaser to execute and deliver this Agreement on the part behalf of Purchaser. The execution, delivery, and performance by Purchaser of has duly authorized, executed and delivered this Agreement; (d) This Agreement and the consummation of the transactions contemplated herebyother instruments and documents required to be delivered by Purchaser hereunder, require no approval of, filing with, or other 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 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 expected to prevent or materially delay or materially impair the ability of the Purchaser to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. 3.3 This Agreement has been (a) when duly executed and delivered by Purchaser and (b) constitutes a Purchaser, shall constitute legal, valid, valid and binding obligation obligations of Purchaser, enforceable against Purchaser in accordance with its their terms; (e) The execution, subject to applicable Law. 3.4 Neither the execution delivery and the delivery performance of this AgreementAgreement by Purchaser does not conflict with the organizational documents of Purchaser, nor or with any law, statute or regulation applicable to Purchaser; (f) With respect to the consummation litigation involving the Property that has been filed by HCM Solutions, Inc. (“HCM”) against certain parties including the prior owners of the transactions contemplated herebyProperty and Seller, will in its capacity as lender and holder of the deed of trust, on which lender has since foreclosed (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 Case No. CIVDS1001489 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 Superior Court of the assets State of California for the County of San Bernardino, “HCM Litigation”), Purchaser is subjectagrees that, provided the Closing hereunder occurs, (A) Seller shall have no duties, obligations or liabilities to Purchaser or any other than as would not reasonably be expected to have a Material Adverse Effect on Purchaser. 3.5 No broker party arising out of or finder has acted for Purchaser in connection with this Agreement or the transactions contemplated herebyHCM Litigation following Closing hereunder, and no broker (B) that Purchaser Indemnitors shall indemnify, defend and save Seller harmless of, from and against any and all claims, loss, cost, damage, liability or finder is entitled expense, arising out of or in connection with the HCM litigation, and Seller may call upon Purchaser to defend any brokerage such claim or finder’s fee cause of action brought or other commissions in respect asserted against Seller arising out of such transactions based upon agreements, arrangements, or understandings made by or on behalf the HCM Litigation at the expense of Purchaser., with counsel designated by such Seller in its sole discretion; 3.6 (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 “accredited investor” as defined in Rule 501(a) promulgated under informed decision regarding the Securities Actpurchase of the Property and the assumption of the obligations thereunder, and (D) has such knowledge and experience in financial experience, and business matters that it is capable has made investments of evaluating the merits and risks a similar nature, so as to be aware of the transactions contemplated under this Agreement. Purchaser is acquiring the Purchased Shares for its own account, not as a nominee or agent, risks 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 of its management’s, business and financial experience, Purchaser has the capacity to evaluate the merits and risks of its investment uncertainties inherent in the Purchased Shares purchase of rights and to protect its own interests in connection with assumption of liabilities of the transactions type 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 ; (i) Neither Purchaser nor any of its investment. 3.7 Purchaser affiliates 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 dealt 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 (b) 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 to rely thereonnegotiated with, or in engaged on its own behalf or for its benefit, any way restrict person or entity as an agent, broker, dealer 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 who is entitled to enforce 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 agreementperson, group, entity or nation. Purchaser is not engaging in this transaction, directly or indirectly, in each caseviolation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the extent and subject to funds of Purchaser have been or will be derived from any unlawful activity with the terms and conditions thereof. The cash result that the investment of direct or indirect equity committed pursuant to owners in Purchaser is prohibited by Law or that the Equity Commitment Letter is collectively referred to in transaction or 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 provide 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 violation of Law. Purchaser or its Affiliates for inclusion in the Information Statement (or any supplement thereto)has and will continue to implement procedures, and in any other document filed with has consistently and will continue to consistently apply those procedures, to ensure the SEC in connection with the transactions contemplated hereby, will not contain any untrue statement foregoing representations and warranties remain true and correct at all times prior to Closing; and (l) Purchaser represents and warrants that none of a material fact or omit Purchaser’s assets constitute “plan assets” subject to state a material fact necessary in order to make the statements therein, in the light Title I of the circumstances under which they are madeEmployee 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 misleadingbe merged herein.