Common use of New Borrower Clause in Contracts

New Borrower. New Borrower represents and warrants to Lender, as of the date of this Assumption Agreement, that: (i) Contemporaneously with the execution and delivery of this Assumption Agreement, each of the following is true: (A) It has acquired from Original Borrower all the Mortgaged Property. (B) It has assumed the obligations of Original Borrower under the Leases. (C) It has not granted to Original Borrower a mortgage or other lien upon the Mortgaged Property to secure any debt or obligations owed to Original Borrower. (D) It has obtained any consent to the Transfer and the Assumption that is required under the terms of any agreement to which New Borrower is a party. (ii) It has no knowledge that any of the representations and warranties made by Original Borrower in this Assumption Agreement are untrue, incomplete, or incorrect in any material respect. (iii) There are no judicial, administrative, mediation, or arbitration actions, suits or proceedings pending or, to the best of New Borrower’s knowledge, threatened in writing against or affecting New Borrower (and, if New Borrower is a limited partnership, any of its general partners, or if New Borrower is a limited liability company, any member of New Borrower) or the Mortgaged Property, which, if adversely determined, would have a material adverse effect on the Mortgaged Property or on the enforceability or validity of the Note, the Loan Agreement (if applicable), the Guaranty, the Security Instrument, or any of the other Loan Documents. (iv) New Borrower and any operator of the Mortgaged Property, if applicable, and to the best of New Borrower’s knowledge, any commercial tenant of the Mortgaged Property, is in possession of all material licenses, permits, and authorizations required for use of the Mortgaged Property, which are all valid and in full force and effect as of the date of this Assumption Agreement. (v) No portion of the Mortgaged Property has been or will be purchased with the proceeds of any illegal activity. (vi) All information in the application for Xxxxxx’s approval of the Assumption submitted to Lender, including all financial statements for the Mortgaged Property, New Borrower, New Guarantor, and any Borrower Principal, and all reports, certificates, forms (including any Freddie Mac Form 1114, 1115, or 1116), and any other documents submitted in connection with the application (collectively, “Loan Application”) was complete and accurate in all material respects when delivered to Lender. (vii) There has been no change in any fact or circumstance since the Loan Application was submitted to Lender that would make any information submitted as part of the Loan Application materially incomplete or inaccurate. (viii) The organizational structure of New Borrower is as set forth in Exhibit E. (ix) New Borrower is none of the following: (A) An “investment company,” or a company under the Control of an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. (B) An “employee benefit plan,” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a “plan” to which Section 4975 of the Tax Code applies, and the assets of New Borrower do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA. (C) A “governmental plan” within the meaning of Section 3(32) of ERISA, and is not subject to state statutes regulating investments or fiduciary obligations with respect to governmental plans. (x) Neither New Borrower nor any Borrower Principal has: (A) Made, or is making in connection with the Assumption and as security for the Loan, a transfer of an interest in the property of New Borrower or Borrower Principal to or for the benefit of Lender or otherwise as security for any of the obligations under the Loan Documents which is or could constitute a voidable preference under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (B) Made, or is making in connection with the Assumption, a transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of New Borrower or any Borrower Principal in property which is or could constitute a voidable preference under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (C) Incurred, or is incurring in connection with the Assumption, any obligation (including any obligation to or for the benefit of an insider under an employment contract) which is or could constitute a fraudulent transfer under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (xi) Neither New Borrower nor any Borrower Principal is: (A) The subject of or a party to (other than as a creditor) any completed or pending Bankruptcy. (B) The subject of any judgment unsatisfied of record or docketed in any court located in the United States. (xii) New Borrower is not presently insolvent, and the Assumption will not render New Borrower insolvent. As used in this paragraph, the term “insolvent” means that the total of all a Person’s liabilities (whether secured or unsecured, contingent or fixed, or liquidated or unliquidated) is in excess of the value of all of the assets of the Person that are available to satisfy claims of creditors.

New Borrower. New Borrower represents and warrants to Lender, as of the date of this Assumption Agreement, that: (i) Contemporaneously with the execution and delivery of this Assumption Agreement, each of the following is true: (A) It has acquired from Original Borrower all the Mortgaged Property. (B) It has assumed the obligations of Original Borrower under the Leases. (C) It has not granted to Original Borrower a mortgage or other lien upon the Mortgaged Property to secure any debt or obligations owed to Original Borrower. (D) It has obtained any consent to the Transfer and the Assumption that is required under the terms of any agreement to which New Borrower is a party. (ii) It has no knowledge that any of the representations and warranties made by Original Borrower in this Assumption Agreement are untrue, incomplete, or incorrect in any material respect. (iii) There are no judicial, administrative, mediation, or arbitration actions, suits suits, or proceedings pending or, to the best of New Borrower’s knowledge, threatened in writing against or affecting New Borrower (and, if New Borrower is a limited partnership, any of its general partners, or if New Borrower is a limited liability company, any member of New Borrower) or the Mortgaged Property, which, if adversely determined, would have a material adverse effect on the Mortgaged Property or on the enforceability or validity of the Note, the Loan Agreement (if applicable)Agreement, the Guaranty, the Security Instrument, or any of the other Loan Documents. (iv) New Borrower and any operator of the Mortgaged Property, if applicable, and to the best of New Borrower’s knowledge, any commercial tenant of the Mortgaged Property, is in possession of all material licenses, permits, and authorizations required for use of the Mortgaged Property, which are all valid and in full force and effect as of the date of this Assumption Agreement. (v) No portion of the Mortgaged Property has been or will be purchased with the proceeds of any illegal activity. (vi) All information in the application for Xxxxxx’s approval of the Assumption submitted to Lender, including all financial statements for the Mortgaged Property, New Borrower, New Guarantor, and any Borrower Principal, and all reports, certificates, forms (including any Freddie Mac Form 1114, 1115, or 1116), Certification – Organizational Chart (if applicable), and any other documents submitted in connection with the application (collectively, “Loan Application”) was complete and accurate in all material respects when delivered to Lender. (vii) There has been no change in any fact or circumstance since the Loan Application was submitted to Lender that would make any information submitted as part of the Loan Application materially incomplete or inaccurate. (viii) The organizational structure of New Borrower is as set forth in Exhibit E. (ix) New Borrower is none of the following: (A) An “investment company,” or a company under the Control of an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. (B) An “employee benefit plan,” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a “plan” to which Section 4975 of the Tax Code applies, and the assets of New Borrower do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA. (C) A “governmental plan” within the meaning of Section 3(32) of ERISA, and is not subject to state statutes regulating investments or fiduciary obligations with respect to governmental plans. (x) Neither New Borrower nor any Borrower Principal has: (A) Made, or is making in connection with the Assumption and as security for the Loan, a transfer of an interest in the property of New Borrower or Borrower Principal to or for the benefit of Lender or otherwise as security for any of the obligations under the Loan Documents which is or could constitute a voidable preference under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (B) Made, or is making in connection with the Assumption, a transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of New Borrower or any Borrower Principal in property which is or could constitute a voidable preference under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (C) Incurred, or is incurring in connection with the Assumption, any obligation (including any obligation to or for the benefit of an insider under an employment contract) which is or could constitute a fraudulent transfer under federal bankruptcy, state insolvency, or similar applicable creditors’ rights laws. (xi) Neither New Borrower nor any Borrower Principal is: (A) The subject of or a party to (other than as a creditor) any completed or pending Bankruptcy. (B) The subject of any judgment unsatisfied of record or docketed in any court located in the United States. (xii) New Borrower is not presently insolvent, and the Assumption will not render New Borrower insolvent. As used in this paragraph, the term “insolvent” means that the total of all a Person’s liabilities (whether secured or unsecured, contingent or fixed, or liquidated or unliquidated) is in excess of the value of all of the assets of the Person that are available to satisfy claims of creditors.