Common use of Borrower’s and Guarantor’s Representations and Warranties Clause in Contracts

Borrower’s and Guarantor’s Representations and Warranties. The Borrower and the Guarantors hereby acknowledge, warrant, represent, covenant and agree with the Bank as follows: (a) That the Borrower and the Guarantors are unaware of the occurrence of any Default or Event of Default under the Loan Documents, as hereby amended; (b) That Borrower and the Guarantors continue to be a duly constituted and validly existing business corporations or limited liability companies in good standing under the laws of the State or Country of their formation, with full power and authority to do all things required to be done by them hereunder and under the other Loan Documents to which they are a party or by which they are or may be bound or affected; (c) That the Borrower and the Guarantors have no offsets, defenses or counterclaims to their obligations under the Loan Documents, as hereby amended; (d) That all corporate action needed to be taken by the Borrower and the Guarantors to execute and deliver this Agreement and do all things required of them hereunder and under the other Loan Documents has been taken and remains in full force and effect; (e) That the Borrower and the Guarantors are solvent and have not (i) filed a petition seeking relief from any provision of any bankruptcy, reorganization, arrangement or dissolution law of any jurisdiction, (ii) made an assignment for the benefit of creditors, (iii) had a receiver, custodian, liquidator or trustee appointed by court order or otherwise, or (iv) failed to pay, or admitted in writing, its inability to pay debts generally as they become due; (f) That the execution, delivery and performance by the Borrower or the Guarantors of this Agreement and the Allonge does not and will not violate any provision of: (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award presently in effect having applicability to the Borrower or the Guarantors, or (ii) any document, instrument or agreement to which the Borrower or the Guarantors are a party, or by which the Borrower or the Guarantors may be bound or affected; (g) That after the amendments to the financial covenants herein contained that the financial covenants contained in the Loan Agreement, as hereby amended, are basically the same as the financial covenants contained, as of the date hereof, in the documents evidencing that certain $15,000,000.00 line of credit and $3,000,000.00 term loan established and/or made for the Borrower by X.X. Xxxxxx Xxxxx Bank, NA.

Borrower’s and Guarantor’s Representations and Warranties. The Each of Borrower and the Guarantors Guarantor hereby acknowledge, warrant, represent, covenant reaffirms all of their respective representations and agree with the Bank as follows: (a) That the Borrower and the Guarantors are unaware of the occurrence of any Default or Event of Default under warranties set forth in the Loan Documents, excluding the representations in Sections 1.08C(4) and (6) of the Security Instrument and Sections 7(e) and (j) of the Assignment (as hereby amended; defined in the Security Instrument) to the extent there are defaults by tenants under leases due to non-payment of rent resulting from the COVID‑19 pandemic, and excluding the representations in Section 1.08C(9) of the Security Instrument and Section 7(n) of the Assignment to the extent Borrower is not required by the terms of the Loan Documents to disclose to Lender certain amendments of or modifications to leases, and further represents and warrants that (a) Borrower is the sole legal and beneficial owner of the Property; (b) That each of Borrower and Guarantor has the Guarantors continue to be a duly constituted and validly existing business corporations or limited liability companies in good standing under the laws of the State or Country of their formation, with full power and authority to do all things required to be done by them hereunder and under the other Loan Documents to which they are a party or by which they are or may be bound or affected; (ci) That the Borrower and the Guarantors have no offsets, defenses or counterclaims to their obligations under the Loan Documents, as hereby amended; (d) That all corporate action needed to be taken by the Borrower and the Guarantors to execute and deliver this Agreement and do all things required (ii) to perform its obligations hereunder; (c) Borrower’s and Guarantor’s execution, delivery, and performance of them hereunder and under the other Loan Documents this Agreement has been taken duly and remains validly authorized by all necessary action on the part of Borrower and Guarantor; (d) this Agreement has been duly and validly executed and delivered by Borrower and Guarantor and constitutes the legal, valid, and binding obligations of Borrower and Guarantor, enforceable in full force and effect; accordance with their respective terms; (e) That no authorization, consent, approval, license, exemption, or other action by, and no registration, qualification, designation, declaration or filing with, any Person not a party hereto is or will be necessary in connection with the execution and delivery by Borrower and Guarantor of this Agreement or, to the Guarantors extent necessary, have been obtained prior to the date hereof; (f) the execution and delivery of this Agreement does not contravene, result in a breach of, or constitute a default under, any mortgage, loan agreement, indenture or other contract or agreement to which Borrower or Guarantor is a party or by which Borrower or Guarantor or any of Borrower’s or Guarantor’s properties may be bound; (g) there exists no default under the Note or any other Loan Document (it being agreed that the failure to pay the Deferred Debt Service as originally required under the Loan Documents does not constitute an Event of Default so long as Borrower and Guarantor comply with the terms of this Agreement); (h) there are solvent no offsets, claims, counterclaims, cross-claims or defenses with respect to the Obligations; and have not (i) filed a petition seeking relief from the Loan Documents and this Agreement are fully enforceable by their terms. Each of Borrower and Guarantor further represent and warrant that there is no suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or, to Borrower’s and Guarantor’s knowledge, threatened) (i) against Borrower or Guarantor or against any provision of any bankruptcy, reorganization, arrangement other person liable directly or dissolution law of any jurisdiction, (ii) made an assignment indirectly for the benefit of creditorsObligations which may result in any material adverse change in the business, (iii) had a receiveroperations, custodianproperties or assets or in the condition, liquidator or trustee appointed by court order financial or otherwise, of Borrower or (iv) failed to payGuarantor, or admitted in writing, its inability the ability of Borrower to pay debts generally as they become due; (f) That or otherwise perform the execution, delivery and performance by the Borrower or the Guarantors of this Agreement and the Allonge does not and will not violate any provision of: (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award presently in effect having applicability to the Borrower or the GuarantorsObligations, or (ii) which affects the Property or Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any document, instrument of the Loan Documents. It shall be an Event of Default under the Loan Documents if any representation or agreement to which the warranty made by Borrower or the Guarantors are a party, Guarantor herein proves to be untrue or by which the Borrower or the Guarantors may be bound or affected; (g) That after the amendments to the financial covenants herein contained that the financial covenants contained inaccurate in the Loan Agreement, as hereby amended, are basically the same as the financial covenants contained, as of the date hereof, in the documents evidencing that certain $15,000,000.00 line of credit and $3,000,000.00 term loan established and/or made for the Borrower by X.X. Xxxxxx Xxxxx Bank, NAany respect.

Borrower’s and Guarantor’s Representations and Warranties. The To induce Lender to enter into this Agreement, each of Borrower and the Guarantors hereby acknowledge, warrant, represent, covenant Guarantor jointly and agree with the Bank as followsseverally represents and warrants to Lender that: (a) That the Collectively, Borrower and Guarantor are the Guarantors are unaware sole owners and holders of the occurrence each and every claim, cause of any Default or Event of Default under action, right and chose in action relating to the Loan Documents, as hereby amendedTransaction; (b) That Except as disclosed on Exhibit G hereto, there are no actions, suits, or legal, equitable, arbitrative, administrative or other proceedings pending or, to the best of its actual knowledge, threatened against Borrower or the Project before any federal, state, municipal or other court, department, commission, body, board, bureau, agency or instrumentality, and there are no outstanding judgments, injunctions, writs, rulings, or orders by any governmental entity against Borrower or the Guarantors continue to be a duly constituted and validly existing business corporations or limited liability companies in good standing under the laws of the State or Country of their formation, with full power and authority to do all things required to be done by them hereunder and under the other Loan Documents to which they are a party or by which they are or may be bound or affectedProject; (c) That Except as disclosed on Exhibit H hereto, Borrower has not incurred any liability or obligation for leasing or sales commissions to any broker or agent in connection with the Borrower and leasing and/or sale of any part of the Guarantors have no offsets, defenses or counterclaims to their obligations under the Loan Documents, as hereby amendedProject that has not been paid in full; (d) That all corporate action needed to be taken Except as disclosed on Exhibit I hereto, there are no unpaid bills for any labor, materials or services furnished for the Project or for the improvement or maintenance of the Project, and, except for the liens created by the Loan Documents, none of Borrower, Guarantor and Manager has actual knowledge of any mechanics’, materialmen’s or other liens or encumbrances in existence, of record or otherwise, affecting the Project, and there are no other unpaid bills or other charges incurred by Borrower in the ownership, operation or leasing of the Project except Scheduled Services and the Guarantors to execute and deliver this Agreement and do all things required of them hereunder and under the other Loan Documents has been taken and remains in full force and effectMaterials (defined below); (e) That Borrower has not entered into any contract to sell the Project or granted any option, right of first refusal or similar right to purchase the Project; (f) Neither Borrower and the Guarantors are solvent and have not (i) filed a petition seeking relief from any provision of any bankruptcy, reorganization, arrangement or dissolution law of any jurisdiction, (ii) nor Guarantor has made an assignment for the benefit of creditors, (iii) had or filed a receiverpetition in bankruptcy, custodianor been adjudicated insolvent or bankrupt, liquidator or petitioned a court for the appointment of any receiver or custodian of or trustee appointed by court order for it or otherwiseany of its property, or (iv) failed commenced any proceeding relating to paysuch party under any reorganization, rearrangement, readjustment of debt, dissolution, rehabilitation or admitted in writing, its inability to pay debts generally as they become dueliquidation law or statute of any jurisdiction; (fg) That There has not been commenced and is not pending against Borrower or Guarantor any proceeding of the nature described in Section 11(f) hereof, nor has any order for relief been entered with respect to Borrower or Guarantor under the Federal Bankruptcy Code; (h) No person or entity is entitled to any brokerage fee or commission as a result of any actions of Borrower or Guarantor in connection with the acquisition of the Project by Lender, and Borrower shall defend, indemnify and hold Lender harmless for any claim for such commission or compensation arising from activities or actions taken by Borrower; (i) Each of Borrower and Guarantor is executing this Agreement of its own free will and accord and upon knowledge of the facts and the legal advice given by its attorneys; (j) Borrower is a limited partnership duly organized and validly existing under the laws of the state of Texas, having all powers required to carry on its business and to enter into and carry out the transactions contemplated hereby; AmREIT Xxxxx Creek GP, Inc., the general partner of Borrower, is a corporation duly organized and validly existing under the laws of the state of Texas, having all powers required to carry on its business, to act as general partner on behalf of Borrower, and to execute and perform in accordance with this Agreement; Guarantor is a limited partnership duly organized and validly existing under the laws of the state of Texas, having all powers required to carry on its business, to execute this Agreement, and to perform its obligations under the Guaranty; AmREIT Monthly Income & Growth III Corporation, the general partner of Guarantor, is a corporation duly organized and validly existing under the laws of the state of Texas, having all powers required to carry on its business, to act as general partner on behalf of Guarantor, and to execute and perform in accordance with this Agreement; (k) Borrower and Guarantor have duly taken all action necessary to authorize the execution and delivery by it of the Settlement Documents and to authorize the consummation of the transactions contemplated thereby and the performance of its obligations thereunder; (l) The execution, delivery and performance by the Borrower or the Guarantors and Guarantor of this Agreement Agreement, the Deed, the General Assignment, and the Allonge does other Settlement Documents, and the consummation of the transactions contemplated by the Settlement Documents, do not and will not violate (A) conflict with any provision of: of (i) to the Borrower’s and Guarantor’s current actual knowledge, any domestic or foreign law, rulestatute, rule or regulation, order(ii) organizational documents of Borrower or Guarantor, writor (iii) any agreement, judgment, injunctionlicense, decree order or award presently in effect having applicability permit applicable to the or binding upon Borrower or Guarantor; (B) result in the Guarantors, acceleration of any debt other than indebtedness by Borrower to Lender; or (iiC) result in or require the creation of any document, instrument lien or agreement to which the encumbrance upon any assets or properties of Borrower or Guarantor except as expressly disclosed to Lender or otherwise contemplated in the Guarantors are a partySettlement Documents. No consent, approval, authorization or order of, and no notice to or filing with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by which Borrower of any Settlement Document or to consummate any transactions contemplated by the Borrower or the Guarantors may be bound or affectedSettlement Documents; (gm) That after This Agreement is, and the amendments Deed, the General Assignment and the other Conveyance Documents, when duly executed and delivered, will be, legal and binding obligations of Borrower and Guarantor, enforceable in accordance with their respective terms; (n) The Recitals to this Agreement are true and correct in all respects; (o) Exhibit J attached hereto is a true, correct and complete list of all operating accounts maintained in connection with the Project (the “Operating Accounts”) and the balances thereof as of February 3, 2012; (p) No letter of credit has been issued in favor of Borrower or, to the financial covenants herein contained that best of Borrower’s actual knowledge, Borrower’s predecessor in interest under the financial covenants contained Leases; (q) There are no escrows, impounds or reserves for taxes, insurance, repairs, maintenance, interest or any other matter or for any other purpose in connection with the Loan or pursuant to the Loan Documents; (r) The representations in Section 2 of the Environmental Indemnity are true and correct; (s) Exhibit K attached hereto is a true, correct and complete list of all services and materials for the Project prior to the Effective Date for which either no billing has been received or a billing has been received but has not been paid (the “Scheduled Services and Materials”); (t) Exhibit L attached hereto is a true, correct and complete list of all tenants of the Project and Leases (including all amendments thereto) and all security deposits delivered by such tenants and currently held by Borrower. To the best of Borrower’s actual knowledge, Exhibit L is a true, correct and complete list of all security or other deposits delivered by such tenant in connection with its Lease. (u) No payment received from any tenant for expense reimbursements or such tenant’s share of taxes has been applied to any amount owed under or in connection with the Loan; (v) Neither Borrower nor Guarantor has any knowledge of any fact or condition existing regarding the presence of, testing for, or remediation of, mildew, mold or mold spores on the Project; (w) Borrower is not a “foreign person” nor a “foreign corporation” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended; (x) Borrower and Guarantor are currently in compliance with, and shall at all times during the term of this Agreement (including any extension thereof) remain in compliance with, the regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) and any statute, 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 other governmental action relating thereto; (y) Borrower and Guarantor have requested conveyance of title to the Project in lieu of the exercise of Lender’s remedies under the Loan Documents and, throughout the negotiation, preparation and execution of this Agreement have been, and will through the Conveyance be, represented by competent legal counsel of their own choosing; (z) This Agreement was entered into out of the free will of Borrower and Guarantor, pursuant to arm’s-length negotiations, and Borrower and Guarantor believe this Agreement is fair; (aa) Lender has not taken advantage of Borrower or Guarantor by threats, intimidation, overreaching, unconscionable conduct, or otherwise, and Borrower and Guarantor are proceeding in the Loan transactions contemplated by this Agreement as volunteers in what they perceive to be their own best interests; and (bb) Neither Borrower nor Guarantor has entered into this Agreement, as hereby amendedthe Conveyance Documents or the other Settlement Documents to which it is a party or its property is subject with the intent to hinder, are basically the same as the financial covenants contained, as delay or defraud any creditor. All of the date hereofrepresentations and warranties of this Section 11 shall survive execution of this Agreement until December 31, in the documents evidencing that certain $15,000,000.00 line of credit and $3,000,000.00 term loan established and/or made for the Borrower by X.X. Xxxxxx Xxxxx Bank, NA2012.