Common use of Representations, Warranties and Covenants of Sellers Clause in Contracts

Representations, Warranties and Covenants of Sellers. (a) Each Seller covenants to the Financing Party as of the date that any Mortgage File documents are released to a Seller pursuant to a Request for Release that: (i) if the Request for Release has been submitted for the release of a Mortgage Asset that has been paid in full, all amounts received in connection with the payment in full of the related Mortgage Asset have been credited to the related Financing Party as provided for in the agreements relating to the applicable Transaction, prior to or simultaneously with the release of such files; (ii) if item No. 3 has been checked on the Request for Release, the appropriate amount of funds has been credited to the Financing Party as provided for in the agreements relating to the applicable Transaction; and (iii) if item No. 4 has been checked on the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable Transaction. (b) Each Seller further represents and warrants that this Agreement has been duly authorized, executed and delivered by such Seller and constitutes a legal, valid and binding obligation of such Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law). (c) Each Seller further represents and warrants that the information contained on each Loan Schedule is the same data that was provided on a Loan Data Transmission delivered by the related Seller to the Custodian and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered by the related Seller to the Custodian. (d) On and after August 7, 2009, each Seller hereby covenants and agrees with the Financing Party that within 30 Business Days of any Mortgage Asset becoming “Collateral” as defined in the Loan Agreement, that it will deliver the related Mortgage File to the Custodian in accordance with the terms hereof.

Representations, Warranties and Covenants of Sellers. (aA) Each Seller covenants represents and warrants to Buyer that the Financing Party following matters are true and correct as to such Seller and such Seller's Properties as of the date that any Mortgage File documents are released to a Seller pursuant to a Request for Release thatEffective Date and as of the Closing: (I) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. (II) This Agreement is, and all the documents executed by Seller which are to be delivered to Buyer at the Closing will be, duly authorized, executed, and delivered by Seller, and is and will be legal, valid, and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally). (III) Except as set forth in the materials delivered or made available to Buyer (whether or not the same are reviewed by Buyer) pursuant to Section 5 above or as otherwise disclosed in writing to Buyer prior to the end of the Due Diligence Period, to Seller's actual knowledge, there are no pending legal proceedings or administrative actions of any kind or character materially and adversely affecting the Properties. (IV) Except as set forth in the materials delivered or made available to Buyer (whether or not the same are reviewed by Buyer) pursuant to Section 5 above or as otherwise disclosed in writing to Buyer prior to the end of the Due Diligence Period, to Seller's actual knowledge, and except as set forth in the tenant estoppel certificate delivered to Buyer pursuant to Section 8(a) below, (i) if each Lease and each Lease Guaranty are in full force and effect, (ii) no concessions, abatements or adjustments have been granted to Tenant except as specified in the Request for Release applicable Leases and (iii) there is no current default in the performance of the obligations of any party under any of the applicable Leases or Lease Guaranties. (V) Seller is not a party to any property management or leasing commission agreements with respect to the Properties. (VI) Seller has been submitted not entered into any mortgages or consensual liens encumbering the Properties, except for the indebtedness ("Existing Indebtedness") secured by the mortgages shown on the Title Reports. At Closing, Seller shall cause the Properties to be released from any liens, claims or encumbrances of any nature related to such indebtedness (or shall cause the applicable lender to have delivered to Escrow Holder a payoff letter promising to so release of a Mortgage Asset that such indebtedness promptly following the Closing). (VII) Seller has been paid not collected any prepaid rent (more than one month in full, all amounts received in connection advance) under the Leases with the payment in full respect to any of the related Mortgage Asset Properties. As used in this Agreement, the phrase "to Seller's actual knowledge" or words of similar import shall mean the actual (and not constructive or imputed) knowledge, without independent investigation or inquiry, of Scott Tracy and Howard Sands (and each Seller represents that Scott Txxxx xxx Xxward Xxxxx xxx xxe individuals with primary responsxxxxxxx xxx the xxxx xxx xxx management of Sellers' interest in the Properties). Buyer acknowledges that the primary obligation for physical management of the Real Properties resides with Tenant. Notwithstanding any other provision in this Agreement, neither Mr. Sands nor Mr. Tracy shall have been credited any personal liability in connectixx xxxx, or arxxxxx xxx of, any representation made by the Sellers in this Agreement or any failure to disclose by Sellers. Any action, suit or proceeding with respect to the related Financing Party as provided for in truth, accuracy or completeness of such representations and warranties shall be commenced, if at all, on or before the agreements relating date which is six months after the date of the Closing and, if not commenced on or before such date, thereafter shall be void and of no force or effect. No Seller shall have any liability with respect to any of the applicable Transactionforegoing representations and warranties if, prior to the Closing, Buyer discovers or simultaneously with the release learns of such files; information (ii) if item No. 3 has been checked on the Request for Releasefrom whatever source, including, without limitation, the appropriate amount tenant estoppel certificates delivered pursuant to Section 8(a) below, as a result of funds has been credited to Buyer's due diligence tests, investigations and inspections of the Financing Party as provided for in Properties, or written disclosure by a Seller or its agents and employees) that contradicts any of the agreements relating to foregoing representations and warranties, or renders any of the applicable Transaction; and (iii) if item No. 4 has been checked on foregoing representations and warranties untrue or incorrect, and Buyer nevertheless consummates the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable Transactiontransaction contemplated by this Agreement. (bB) Each Seller further represents Sellers covenant with Buyer that after the Effective Date and warrants that until either this Agreement has been duly authorizedterminated (as to the applicable Property) or there has been a default under this Agreement by Buyer or the Closing occurs, executed and delivered by such Seller and constitutes a legalSellers shall not enter into any new lease, valid and binding obligation service or management agreements, or other similar agreements, or amend, modify or extend any Lease or any service or management agreements, or other similar agreements without the prior written consent of such Seller enforceable in accordance with its terms, except as enforceability may Buyer (which consent shall not be limited by bankruptcy, insolvency, reorganization, moratorium unreasonably withheld or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at lawdelayed). (c) Each Seller further represents and warrants that the information contained on each Loan Schedule is the same data that was provided on a Loan Data Transmission delivered by the related Seller to the Custodian and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered by the related Seller to the Custodian. (d) On and after August 7, 2009, each Seller hereby covenants and agrees with the Financing Party that within 30 Business Days of any Mortgage Asset becoming “Collateral” as defined in the Loan Agreement, that it will deliver the related Mortgage File to the Custodian in accordance with the terms hereof.

Representations, Warranties and Covenants of Sellers. In connection with the sale of the Shares, each Seller hereby represents, severally and not jointly, on behalf of itself or himself, to Purchaser as follows: (a) Each Seller covenants is the record and beneficial owner of the Shares and has good and valid title to the Financing Party as Shares, free and clear of all liens, claims and encumbrances. Except for this Agreement, there are no outstanding agreements, commitments, options, encumbrances, liens or other obligations of any character to which Seller is a party, or by which it is bound, affecting the sale and transfer of the date that any Mortgage File documents are released to a Shares. Seller pursuant to a Request for Release that: (i) if the Request for Release has been submitted for the release of a Mortgage Asset that has been paid in full, all amounts received in connection with the payment in full made no public offering of the related Mortgage Asset have been credited to the related Financing Party as provided for in the agreements relating to the applicable Transaction, prior to or simultaneously with the release of such files; (ii) if item No. 3 has been checked on the Request for Release, the appropriate amount of funds has been credited to the Financing Party as provided for in the agreements relating to the applicable Transaction; and (iii) if item No. 4 has been checked on the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable TransactionShares. (b) Each All action on the part of Seller further represents necessary for the authorization, execution and warrants that delivery of this Agreement and necessary to authorize the performance of all of Seller’s obligations hereunder, has been taken or will be taken prior to the Closing. Seller has full power and authority to enter into this Agreement. (c) This Agreement has been duly authorized, validly executed and delivered by such Seller and constitutes a the legal, valid and binding obligation agreement of such Seller enforceable against the Seller in accordance with its terms, except as to the extent (i) such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ and contracting parties’ rights generally and by (ii) such enforceability may be subject to general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law). (cd) Each The execution and delivery of this Agreement, the sale of the Shares under this Agreement, the fulfillment of the terms of this Agreement and the consummation of the transactions contemplated hereby will not result in a conflict with or constitute a violation of, or default (with the passage of time or otherwise) under any law, administrative regulation, ordinance or order of any court or governmental agency, arbitration panel or authority binding upon the Seller further represents or his properties. No consent, approval, authorization or other order of, or registration, qualification or filing with, any regulatory body, administrative agency, or other governmental body is required for the execution and warrants that the information contained on each Loan Schedule is the same data that was provided on a Loan Data Transmission delivered delivery of this Agreement by the related Seller to and the Custodian and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered sale of the Shares by the related Seller pursuant to the Custodianthis Agreement, other than such as have been made or obtained, and except for any filings required to be made under federal or state securities laws. (de) On No brokerage or finder’s fees or commissions are or will be payable by Seller to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions contemplated by this Agreement, and after August 7, 2009, each Seller hereby covenants and agrees has not taken any action that would cause the Purchaser to be liable for any such fees or commissions. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of any person for fees of the type contemplated by this Section 5(e) with the Financing Party that within 30 Business Days transactions contemplated by this Agreement. (f) Seller has received all the information it considers necessary or appropriate for deciding whether to sell the Shares. Seller has made its own decision to consummate the transaction contemplated hereby based on its own independent review and consultations with such investment, legal, accounting and other advisers as it deems necessary. Seller has made its decision without reliance on any representation or warranty of, or advice from, Purchaser. (g) Assuming the accuracy of any Mortgage Asset becoming “Collateral” the representations and warranties of Purchaser set forth in Section 4, the offer and sale of the Shares to Purchaser as defined in contemplated hereby are exempt from the Loan Agreement, that it will deliver registration requirements of the related Mortgage File to the Custodian in accordance with the terms hereofSecurities Act.

Representations, Warranties and Covenants of Sellers. (aA) Each Seller covenants represents and warrants to Buyer that the Financing Party following matters are true and correct as to such Seller and such Seller's Properties as of the date that any Mortgage File documents are released to a Seller pursuant to a Request for Release thatEffective Date and as of the Closing: (I) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. (II) This Agreement is, and all the documents executed by Seller which are to be delivered to Buyer at the Closing will be, duly authorized, executed, and delivered by Seller, and is and will be legal, valid, and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally). (III) Except as set forth in the materials delivered or made available to Buyer (whether or not the same are reviewed by Buyer) pursuant to Section 5 above or as otherwise disclosed in writing to Buyer prior to the end of the Due Diligence Period, to Seller's actual knowledge, there are no pending legal proceedings or administrative actions of any kind or character materially and adversely affecting the Properties. (IV) Except as set forth in the materials delivered or made available to Buyer (whether or not the same are reviewed by Buyer) pursuant to Section 5 above or as otherwise disclosed in writing to Buyer prior to the end of the Due Diligence Period, to Seller's actual knowledge, and except as set forth in the tenant estoppel certificate delivered to Buyer pursuant to Section 8(a) below, (i) if each Lease and each Lease Guaranty are in full force and effect, (ii) no concessions, abatements or adjustments have been granted to Tenant except as specified in the Request for Release applicable Leases and (iii) there is no current default in the performance of the obligations of any party under any of the applicable Leases or Lease Guaranties. (V) Seller is not a party to any property management or leasing commission agreements with respect to the Properties. (VI) Seller has been submitted not entered into any mortgages or consensual liens encumbering the Properties, except for the indebtedness ("Existing Indebtedness") secured by the mortgages shown on the Title Reports. At Closing, Seller shall cause the Properties to be released from any liens, claims or encumbrances of any nature related to such indebtedness (or shall cause the applicable lender to have delivered to Escrow Holder a payoff letter promising to so release of a Mortgage Asset that such indebtedness promptly following the Closing). (VII) Seller has been paid not collected any prepaid rent (more than one month in full, all amounts received in connection advance) under the Leases with the payment in full respect to any of the related Mortgage Asset Properties. As used in this Agreement, the phrase "to Seller's actual knowledge" or words of similar import shall mean the actual (and not constructive or imputed) knowledge, without independent investigation or inquiry, of Scott Tracy and Howard Sands (and each Seller represents that Scott Xxxxx xxx Howarx Xxxxx xxx the individuals with primary respoxxxxxxxxx xor thx xxxx xxx xhe management of Sellers' interest in the Properties). Buyer acknowledges that the primary obligation for physical management of the Real Properties resides with Tenant. Notwithstanding any other provision in this Agreement, neither Mr. Sands nor Mr. Tracy shall have been credited any personal liability in connecxxxx xxxx, or xxxxxxx xut of, any representation made by the Sellers in this Agreement or any failure to disclose by Sellers. Any action, suit or proceeding with respect to the related Financing Party as provided for in truth, accuracy or completeness of such representations and warranties shall be commenced, if at all, on or before the agreements relating date which is six months after the date of the Closing and, if not commenced on or before such date, thereafter shall be void and of no force or effect. No Seller shall have any liability with respect to any of the applicable Transactionforegoing representations and warranties if, prior to the Closing, Buyer discovers or simultaneously with the release learns of such files; information (ii) if item No. 3 has been checked on the Request for Releasefrom whatever source, including, without limitation, the appropriate amount tenant estoppel certificates delivered pursuant to Section 8(a) below, as a result of funds has been credited to Buyer's due diligence tests, investigations and inspections of the Financing Party as provided for in Properties, or written disclosure by a Seller or its agents and employees) that contradicts any of the agreements relating to foregoing representations and warranties, or renders any of the applicable Transaction; and (iii) if item No. 4 has been checked on foregoing representations and warranties untrue or incorrect, and Buyer nevertheless consummates the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable Transactiontransaction contemplated by this Agreement. (bB) Each Seller further represents Sellers covenant with Buyer that after the Effective Date and warrants that until either this Agreement has been duly authorizedterminated (as to the applicable Property) or there has been a default under this Agreement by Buyer or the Closing occurs, executed and delivered by such Seller and constitutes a legalSellers shall not enter into any new lease, valid and binding obligation service or management agreements, or other similar agreements, or amend, modify or extend any Lease or any service or management agreements, or other similar agreements without the prior written consent of such Seller enforceable in accordance with its terms, except as enforceability may Buyer (which consent shall not be limited by bankruptcy, insolvency, reorganization, moratorium unreasonably withheld or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at lawdelayed). (c) Each Seller further represents and warrants that the information contained on each Loan Schedule is the same data that was provided on a Loan Data Transmission delivered by the related Seller to the Custodian and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered by the related Seller to the Custodian. (d) On and after August 7, 2009, each Seller hereby covenants and agrees with the Financing Party that within 30 Business Days of any Mortgage Asset becoming “Collateral” as defined in the Loan Agreement, that it will deliver the related Mortgage File to the Custodian in accordance with the terms hereof.

Representations, Warranties and Covenants of Sellers. Each Seller hereby jointly and severally represents, warrants and covenants that: (a) Each Seller covenants will not sell, contract to sell, encumber or dispose of any of the Stock Escrow Fund or any interest therein until this Amended and Restated Escrow Agreement and the obligations hereunder have been satisfied pursuant to the Financing Party as of the date that any Mortgage File documents are released to a Seller pursuant to a Request for Release that: (i) if the Request for Release has been submitted for the release of a Mortgage Asset that has been paid in full, all amounts received in connection with the payment in full of the related Mortgage Asset have been credited to the related Financing Party as provided for in the agreements relating to the applicable Transaction, prior to or simultaneously with the release of such files; (ii) if item No. 3 has been checked on the Request for Release, the appropriate amount of funds has been credited to the Financing Party as provided for in the agreements relating to the applicable Transaction; and (iii) if item No. 4 has been checked on the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable Transactionterms hereof. (b) Each Seller further represents and warrants that this Agreement The deposit of the Stock Escrow Fund has been duly authorizedauthorized by each Seller. No consent of any other party is necessary if each Seller to perform its obligations hereunder, executed and delivered by or if any such Seller and constitutes a legalconsent is required, valid and binding obligation of such Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law)consent has been received. (c) Each Seller further represents and warrants that the information contained on each Loan Schedule is the same data that was provided on a Loan Data Transmission delivered by the related Seller shall possess all voting rights pertaining to the Custodian Escrow Shares so long as no obligations of Seller under this Amended and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered by the related Seller to the CustodianRestated Escrow Agreement have occurred and are continuing. (d) On Sellers are the record and after August 7beneficial owner of the Stock Escrow Fund, 2009free and clear of all liens, each claims and encumbrances and have full right, power and authority to enter into and perform their obligations under this Amended and Restated Escrow Agreement. (e) Each Seller hereby covenants will (i) from time-to-time, promptly execute and agrees with deliver to Escrow Agent all such stock certificates representing the Financing Party that within 30 Business Days Escrow Shares, stock power, assignments, supplemental writings, and all other items, and do all other acts or things as Escrow Agent may reasonably request regarding the Stock Escrow Fund; and (ii) promptly notify Escrow Agent of any Mortgage Asset becoming “Collateral” as defined in the Loan Agreement, that it will deliver the related Mortgage File claims action or proceedings affecting title to the Custodian Stock Escrow Fund, or any part thereof, and, at the request of the Escrow Agent, appear in accordance with the terms hereofand defend, at Seller’s expense, any such action or proceeding.

Representations, Warranties and Covenants of Sellers. Each Seller represents and warrants to Purchaser as follows: (a) Each The Contingent Production Payments are owned beneficially, entirely and completely by Seller covenants in the amounts set forth opposite his, her or its name on Schedule A hereto, free and clear of any and all Liens. Seller has not granted any rights, warrants, options, subscriptions, agreements or commitments to sell or acquire the Contingent Production Payments, any part thereof, or any right or benefit related thereto to any party other than Purchaser pursuant to this Agreement. Seller agrees to the Financing Party as Deposit to be paid and the Shares to be issued in exchange for the Contingent Production Payments provided for in Section 2 and acknowledges and agrees that the Deposit and Share Consideration are fair and reasonable to Sellers and represent the sole amounts to be received by Sellers in the proportions set forth on Schedule A hereto, in respect of the date that any Mortgage File documents are released to a Seller pursuant to a Request for Release that: (i) if the Request for Release has been submitted for the release of a Mortgage Asset that has been paid in fullContingent Production Payments, all amounts received and in connection with the payment in full of the related Mortgage Asset have been credited to the related Financing Party as provided for in the agreements relating to the applicable Transaction, prior to or simultaneously with the release of such files; (ii) if item No. 3 has been checked on the Request for Release, the appropriate amount of funds has been credited to the Financing Party as provided for in the agreements relating to the applicable Transaction; and (iii) if item No. 4 has been checked on the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Financing Party as provided for in the agreements relating to the applicable Transactiontransactions contemplated by this Agreement. (b) Each Seller further represents has the full and warrants that complete power, authority and legal capacity to enter into and consummate the transactions contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered (and in the case of JTWI Corporation and Pebcor Enterprises, LLC, duly approved and authorized) by such Seller and (assuming due authorization, execution and delivery by Purchaser) constitutes a legal, the valid and binding obligation agreement of such Seller Seller, enforceable in accordance with its terms. Seller’s execution and delivery of this Agreement and the consummation of the transactions contemplated herein do not violate, except as enforceability may and are not restricted by, any agreement or obligation of Seller, nor will they result in any violation of or be limited by bankruptcyin conflict with any document, insolvencyinstrument, reorganizationjudgment, moratorium decree, order, statute, rule or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law)regulation applicable to Seller. (c) Each No consents, approvals or filings, other than such as have heretofore been obtained or made, are required to authorize or consummate the execution and delivery of this Agreement by Seller or the sale of the Contingent Production Payments as herein contemplated. Seller agrees to furnish to Purchaser such further represents information, to execute and warrants that deliver to Purchaser such other documents, and to do such other acts and things as Purchaser may reasonably request for the information contained on each Loan Schedule is purpose of carrying out the same data that was provided on a Loan Data Transmission delivered by the related Seller to the Custodian and each Mortgage Asset contained on each Loan Schedule is contained on a Loan Data Transmission delivered by the related Seller to the Custodianintent of this Agreement. (d) On and after August 7No suit, 2009action, each or legal, administrative, arbitration or other proceeding or governmental investigation is pending or, to Seller’s knowledge, threatened against Seller hereby covenants and agrees with or related to the Financing Party that within 30 Business Days Contingent Production Payments where such action would reasonably be expected to have an adverse effect on the transactions contemplated by, or the consummation of any Mortgage Asset becoming “Collateral” as defined the transaction provided for in, this Agreement. (e) Seller is not a director, officer or holder of 5% or more of the Common Stock or voting power outstanding of Purchaser. (f) In exchange for the Contingent Production Payments, Seller is acquiring, among other things, the Shares in the Loan Agreementproportion set forth opposite his, her or its name on Schedule A hereto solely for his, her or its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Seller acknowledges that it will deliver the related Mortgage File Shares are not registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and that the Shares may not be transferred or sold except pursuant to the Custodian registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. Seller is able to bear the economic risk of holding the Shares in accordance with the terms hereofproportion set forth opposite his, her or its name on Schedule A hereto for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of his, her its investment.