Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law. (b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. (c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans. (d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "employee benefit plan" or a "governmental plan", (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true: (A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-l01(b)(2); (B) Less than 25 percent of all equity interests in such Mortgagor are held by "benefit plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);or (C) Mortgagor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e). (e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor under this PARAGRAPH 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause this Mortgage or any exercise of Mortgagee's rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370 (f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract
Samples: Mortgage (Inland Western Retail Real Estate Trust Inc)
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "“employee benefit plan" ” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"“), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "“plan assets" ” of one or more such plans within the meaning of ERISA Section 3(42) and 29 C.F.R. Section § 2510.3-101.
(c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "“governmental plan" ” within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "“employee benefit plan" ” or a "“governmental plan"”, (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section § 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor are held by "“benefit plan investors" ” within the meaning of 29 C.F.R. ERISA Section 2510.3-101(f)(2);or3(42); or
(C) Mortgagor qualifies as an "a “venture capital operating company" ” or a "“real estate operating company" ” within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e§ 2510.3.-101(d) or (e).
(e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor under this PARAGRAPH Paragraph 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH Paragraph 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause the establishment or maintenance of this Mortgage or the other Loan Documents, or any exercise of Mortgagee's ’s rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' ’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's ’s sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH Paragraph 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (FSP 303 East Wacker Drive Corp.)
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "“employee benefit plan" ” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"“), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "“plan assets" ” of one or more such plans within the meaning of ERISA Section 3(42) and 29 C.F.R. Section § 2510.3-101.
(c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "“governmental plan" ” within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes statues regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "“employee benefit plan" ” or a "“governmental plan"”, (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section § 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor are held by "“benefit plan investors" ” within the meaning of 29 C.F.R. ERISA Section 2510.3-101(f)(2);or3(42); or
(C) Mortgagor qualifies as an "a “venture capital operating company" ” or a "“real estate operating company" ” within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e§ 2510.3.-101(d) or (e).
(e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor under this PARAGRAPH Paragraph 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH Paragraph 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause the establishment or maintenance of this Mortgage or the other Loan Documents, or any exercise of Mortgagee's ’s rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' ’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's ’s sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH Paragraph 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee Lender represents and warrants to Mortgagor Borrower that, as of the date of this Mortgage Agreement and throughout the term of this MortgageAgreement, the source of funds from which Loan No. 6518370 Mortgagee Lender extends this Mortgage Agreement is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor Borrower represents and warrants that, as of the date of this Mortgage Agreement and throughout the term of this MortgageAgreement, (i) Mortgagor Borrower is not an "“employee benefit plan" ” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor Borrower do not constitute "“plan assets" ” of one or more such plans within the meaning of ERISA Section 3(42) and 29 C.F.R. Section § 2510.3-101.
(c) Mortgagor Borrower represents and warrants to Mortgagee Lender that, as of the date of this Mortgage Agreement and throughout the term of this Mortgage Agreement (i) Mortgagor Borrower is not a "“governmental plan" ” within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor Borrower or any Mortgagor Borrower are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor Borrower covenants and agrees to deliver to Mortgagee Lender such certifications or other evidence from time to time throughout the term of this MortgageAgreement, as reasonably requested by Mortgagee Lender in its sole discretion, that (i) Mortgagor Borrower is not an "“employee benefit plan" ” or a "“governmental plan"”, (ii) Mortgagor Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor Borrower are publicly offered securities, within the meaning of 29 C.F.R. Section § 2510.3-l01(b)(210l(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor Borrower are held by "“benefit plan investors" ” within the meaning of ERISA Section 3(42); or
(C) Borrower qualifies as a “venture capital operating company” or a “real estate operating company” within the meaning of 29 C.F.R. Section § 2510.3-101(f)(2);or
101(d) or (C) Mortgagor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(ee).
(e) Any of the following shall constitute an Event of Default under this MortgageAgreement, entitling Mortgagee Lender to exercise any and all remedies to which it may be entitled under this MortgageAgreement, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor Borrower under this PARAGRAPH 42 Paragraph 3.13 to be true and correct in all respects, (ii) the failure of any Mortgagor Borrower to provide Mortgagee Lender with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice Paragraph 3.13 or (iii) the consummation by Mortgagor Borrower or any one Mortgagor Borrower of a transaction which would cause the establishment or maintenance of this Mortgage Agreement or the other Loan Documents, any exercise of Mortgagee's Lender’s rights under this MortgageAgreement, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee Lender to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor Borrower shall indemnify Mortgagee Lender and defend and hold Mortgagee Lender harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' ’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's Lender’s sole discretion) that Mortgagee Lender may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42Paragraph 3.13. This indemnity shall survive any termination, satisfaction or foreclosure of this MortgageAgreement.
Appears in 1 contract
Samples: Loan Agreement (GTJ REIT, Inc.)
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee Grantee represents and warrants to Mortgagor Grantor that, as of the date of this Mortgage Deed and throughout the term of this MortgageDeed, the source of funds from which Loan No. 6518370 Mortgagee Grantee extends this Mortgage Deed is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor Grantor represents and warrants that, as of the date of this Mortgage Deed and throughout the term of this MortgageDeed, (i) Mortgagor Grantor is not an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor Grantor do not constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.. 37 Loan No. 6518403
(c) Mortgagor Grantor represents and warrants to Mortgagee Grantee that, as of the date of this Mortgage Deed and throughout the term of this Mortgage Deed (i) Mortgagor Grantor is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor Grantor or any Mortgagor Grantor are not subject to state statutes statues regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor Grantor covenants and agrees to deliver to Mortgagee Grantee such certifications or other evidence from time to time throughout the term of this MortgageDeed, as reasonably requested by Mortgagee Grantee in its sole discretion, that (i) Mortgagor Grantor is not an "employee benefit plan" or a "governmental plan", (ii) Mortgagor Grantor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor Grantor are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor Grantor are held by "benefit plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);or101(f)(2); or
(C) Mortgagor Grantor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e2510.3.-101(c) or (e).
(e) Any of the following shall constitute an Event of Default under this MortgageDeed, entitling Mortgagee Grantee to exercise any and all remedies to which it may be entitled under this MortgageDeed, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor Grantor under this PARAGRAPH 42 to be true and correct in all respects, (ii) the failure of any Mortgagor Grantor to provide Mortgagee Grantee with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice or (iii) the consummation by Mortgagor Grantor or any one Mortgagor Grantor of a transaction which would cause this Mortgage Deed or any exercise of MortgageeGrantee's rights under this MortgageDeed, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee Grantee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor Grantor shall indemnify Mortgagee Grantee and defend and hold Mortgagee Grantee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in MortgageeGrantee's sole discretion) that Mortgagee Grantee may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42. This indemnity shall survive any termination, satisfaction or satisfaction, foreclosure of or exercise of power of sale under this MortgageDeed.
Appears in 1 contract
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.
(c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes statues regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "employee benefit plan" or a "governmental plan", (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:: - 42 - Loan No. 6518217
(A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor are held by "benefit plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);or101(f)(2); or
(C) Mortgagor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e2510.3.-101(c) or (e).
(e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor under this PARAGRAPH 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause this Mortgage or any exercise of Mortgagee's rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-2510.3- 101.
(c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes statues regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "employee benefit plan" or a "governmental plan", (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor are held by "benefit plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);or101(f)(2); or
(C) Mortgagor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e2510.3-101(c) or (e).
(e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or Loan No. 3212525 warranty made by any Mortgagor under this PARAGRAPH 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause this Mortgage or any exercise of Mortgagee's rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Dm Management Co /De/)
Compliance with ERISA and State Statutes on Governmental Plans. (a) Mortgagee represents and warrants to Mortgagor that, as of the date of this Mortgage and throughout the term of this Mortgage, the source of funds from which Loan No. 6518370 Mortgagee extends this Mortgage is its general account, which is subject to the claims of its general creditors under state law.
(b) Mortgagor represents and warrants that, as of the date of this Mortgage and throughout the term of this Mortgage, (i) Mortgagor is not an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA and (ii) the assets of such Mortgagor do not constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.
(c) Mortgagor represents and warrants to Mortgagee that, as of the date of this Mortgage and throughout the term of this Mortgage (i) Mortgagor is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or with Mortgagor or any Mortgagor are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor covenants and agrees to deliver to Mortgagee such certifications or other evidence from time to time throughout the term of this Mortgage, as reasonably requested by Mortgagee in its sole discretion, that (i) Mortgagor is not an "employee benefit plan" or a "governmental plan", (ii) Mortgagor is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) one or more of the following circumstances is true:
(A) Equity interests in Mortgagor are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-l01(b)(2101(b)(2);
(B) Less than 25 percent of all equity interests in such Mortgagor are held by "benefit plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);or101(f)(2); or
(C) Mortgagor qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. Section 2510.3.-101(c)or(e).
(e) Any of the following shall constitute an Event of Default under this Mortgage, entitling Mortgagee to exercise any and all remedies to which it may be entitled under this Mortgage, and any other Loan Documents (i) the failure of any representation or warranty made by any Mortgagor under this PARAGRAPH 42 to be true and correct in all respects, (ii) the failure of any Mortgagor to provide Mortgagee with the written certifications and evidence referred to in this PARAGRAPH 42 within five (5) days after written notice or (iii) the consummation by Mortgagor or any one Mortgagor of a transaction which would cause this Mortgage or any exercise of Mortgagee's rights under this Mortgage, or the other Loan Documents to constitute a non-exempt prohibited transaction under ERISA or a violation of a - 45 - Loan No. 6518291 state statute regulating governmental plans, or otherwise subjecting Mortgagee to liability for violation of ERISA or such state statute. Loan No. 6518370.
(f) Mortgagor shall indemnify Mortgagee and defend and hold Mortgagee harmless from and against all civil penalties, excise taxes, or other loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Mortgagee's sole discretion) that Mortgagee may incur, directly or indirectly, as a result of a default under this PARAGRAPH 42. This indemnity shall survive any termination, satisfaction or foreclosure of this Mortgage.
Appears in 1 contract