ANY OTHER PERSON OR ENTITY
WHO HAS BEEN DETERMINED BY COMPETENT AUTHORITY TO BE SUBJECT TO THE PROHIBITIONS
CONTAINED IN THE ORDERS.
Notwithstanding anything contained herein to the contrary, for the purposes of
this provision, the phrase "any beneficial owner of Seller" shall not include
(x) any holder of a direct or indirect interest in a publicly traded company
whose shares are listed and traded on a United States national stock exchange,
or (y) any limited partner, unit holder or shareholder owning an interest of
five percent (5%) or less in Seller or in the holder of any direct or indirect
interest in Seller.
22
11.2
Purchaser's Warranties and Representations.
The
matters set forth in this Section 11.2 constitute representations, warranties
and covenants by Purchaser which are now and shall, at the Closing, be true and
correct.
11.2.1
NO BROKER.
EXCEPT FOR SELLER'S BROKER, PURCHASER HAS NOT
ENGAGED OR DEALT WITH ANY BROKER OR FINDER IN CONNECTION WITH THE SALE
CONTEMPLATED BY THIS AGREEMENT.
PURCHASER SHALL INDEMNIFY AND HOLD HARMLESS
SELLER AND ADVISOR FROM ANY CLAIMS, COSTS, DAMAGES OR LIABILITIES (INCLUDING
ATTORNEYS' FEES) ARISING FROM ANY BREACH OF THE REPRESENTATION CONTAINED IN THIS
SECTION 11.2.1 OR IF THE SAME SHALL BE BASED ON ANY STATEMENT, REPRESENTATION OR
AGREEMENT BY PURCHASER WITH RESPECT TO THE PAYMENT OF ANY BROKERAGE COMMISSIONS
OR FINDER'S FEES.
11.2.2
POWER AND AUTHORITY.
PURCHASER HAS THE LEGAL POWER, RIGHT
AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.2.3
INDEPENDENT INVESTIGATION.
THE CONSUMMATION OF THIS
TRANSACTION SHALL CONSTITUTE PURCHASER'S ACKNOWLEDGMENT THAT IT HAS
INDEPENDENTLY INSPECTED AND INVESTIGATED THE PROPERTY AND, TOGETHER WITH THE
TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING SELLER'S REPRESENTATIONS AND
WARRANTIES UNDER SECTION 11.1 HEREOF, HAS MADE AND ENTERED INTO THIS AGREEMENT
BASED UPON SUCH INSPECTION AND INVESTIGATION AND ITS OWN EXAMINATION OF THE
CONDITION OF THE PROPERTY.
11.2.4
PURCHASER RELIANCE.
PURCHASER IS EXPERIENCED IN AND
KNOWLEDGEABLE ABOUT THE OWNERSHIP AND MANAGEMENT OF REAL ESTATE, AND IT HAS
RELIED AND WILL RELY EXCLUSIVELY ON ITS OWN CONSULTANTS, ADVISORS, COUNSEL,
EMPLOYEES, AGENTS, PRINCIPALS AND/OR STUDIES, INVESTIGATIONS AND/OR INSPECTIONS
WITH RESPECT TO THE PROPERTY, ITS CONDITION, VALUE AND POTENTIAL.
PURCHASER
AGREES THAT, NOTWITHSTANDING THE FACT THAT IT HAS RECEIVED CERTAIN INFORMATION
FROM SELLER OR ITS AGENTS OR CONSULTANTS, PURCHASER HAS RELIED SOLELY UPON AND
WILL CONTINUE TO RELY SOLELY UPON ITS OWN ANALYSIS AND WILL NOT RELY ON ANY
INFORMATION PROVIDED BY SELLER OR ITS AGENTS OR CONSULTANTS, EXCEPT AS EXPRESSLY
SET FORTH IN SECTION 11.1.
11.2.5
ERISA.
PURCHASER REPRESENTS, WARRANTS AND COVENANTS THAT IT
IS NOT USING THE ASSETS OF ANY (I) "EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING
OF SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")), (II) "PLAN" (WITHIN THE MEANING OF SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")) OR (III) ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY, TO FUND ITS PURCHASE OF THE PROPERTY UNDER THIS