Relating to the Project. Borrower represents and warrants to Lender that: (a) Borrower owns good and marketable fee simple title to the Project, subject to no lien, charge or encumbrance except those related to the Existing Loan and such as are listed as exceptions to title or exclusions from coverage in the title insurance policy being issued to Lender concurrently with the execution of the Second Mortgage and pursuant to Section 8.1(b). (b) All personal property with respect to which Borrower has granted to Lender a security interest pursuant to any of the Loan Documents is otherwise owned by Borrower free and clear of all liens, encumbrances and security interests except those related to the Existing Loan. (i) The Project is subject to the leases listed and described on Exhibit B attached hereto and made a part hereof (“Existing Leases”). Except for the Existing Leases, the Project is not subject to any other leases, occupancy rights or similar arrangements. Except as may be set forth in Exhibit B, none of the Existing Leases has been amended, modified or supplemented in any respect or terminated or canceled. The Existing Leases represent the entire agreements between Borrower and the respective applicable tenants (“Existing Tenants”) with respect to the lease of the portions of the Project covered thereby. Each of the Existing Leases is in full force and effect. Borrower knows of no material defaults under Existing Leases in the aggregate which, in the judgment of Lender, could have a material adverse effect on the financial condition of Borrower or the Project. There are no existing defenses or offsets against the obligation to pay the rents or other charges due under any of the Existing Leases or against the enforcement of any of the Existing Leases by Borrower. Except as may be set forth in Exhibit B, there are no agreements covering free rent, partial rent, rebate of rental payments or any other type of rental concessions with respect to any of the Existing Leases. None of the Existing Leases contains any options or rights of first refusal to purchase any portion or all of the Project. There have not been any prepayments of any rent under any of the Existing Leases more than thirty (30) days in advance. Except as may be set forth in Exhibit B, there is no provision for the payment of any security deposit under any of the Existing Leases. Borrower has not mortgaged, assigned, pledged, granted a security interest in or otherwise encumbered its interest in any of the Existing Leases in favor of any person or entity other than Lender. (ii) Borrower has delivered to Lender a rent roll for the Project dated within thirty (30) days of the Closing Date, in form and substance reasonably satisfactory to Lender and certified as true and correct by Sole Member. For the twelve (12) month period immediately preceding the effective date of such rent roll, the pro forma Debt Service Coverage Ratio (on an “as is” interest only basis) is at least 1.50 to 1. (d) No notice of taking by eminent domain or condemnation of any part of the Project has been received, and Borrower has no knowledge that any such proceeding is contemplated. No part of the Project has been damaged or injured as a result of any fire, explosion, accident, flood, or other casualty which is not now fully restored. (e) The Premises constitutes a separate legally subdivided lot for purposes of real estate tax and assessment purposes. (f) The Premises abut and have direct access to a legally open public right-of-way. All streets necessary for the full utilization of the Project for its intended purpose have been completed or, if not completed, are located within the boundaries of the Premises or the necessary rights of way therefore have been acquired by or dedicated to the appropriate Governmental Authority. All costs of street improvements to be completed by Borrower are included in the Schedule of Project Costs. (g) Electricity, public potable water and public sanitary and storm sewerage facilities and natural gas service are connected to the Premises and are of sufficient capacity to service the Improvements. Sanitary sewerage facilities sufficient to serve the Improvements have been authorized by the reservation and allocation to the Project of irrevocable equivalent dwelling units (“EDUs”). All costs for installing and connecting all such utilities (including tap-in and connection fees) are included in the Schedule of Project Costs. (i) Except for building permits for the construction of Future Components, which will be obtained prior to commencement of construction of the applicable building, all necessary approvals from the Governmental Authorities having jurisdiction over the Project including, but not limited to, street openings, closings and relocations, zoning variances and permits, sewer allocation and construction agreements, environmental permits and approvals, building permits, highway occupancy permits, and subdivision and land development approvals (collectively, the “Governmental Approvals”), have been obtained for the construction of the Project and are final, unappealed, and unappealable, and remain in full force and effect. Borrower has satisfied all conditions imposed by any Governmental Authority on the grant of the Governmental Approvals required to be satisfied as of the Closing Date and necessary to construct the New Improvements except for the Future Components, and Borrower has full legal right to immediately commence construction of the New Improvements and diligently prosecute the same to completion. (ii) Without limiting the generality of the foregoing, the Premises are located in the CG Zoning District (Commercial General) in East Pennsboro Township, and in the CS Zoning District (Regional Shopping Center District) in the Borough of Camp Hill and Borrower’s proposed development of the Project is in conformity with the use, zoning, bulk area and other requirements of the East Pennsboro Township and Camp Hill Borough Zoning Codes as applicable to it without need for any variances or special exceptions therefrom. (i) Borrower has delivered to Lender true, correct and complete copies of the plans and specifications for construction of the New Improvements other than the Future Components (the “Plans and Specifications”). The Plans and Specifications are satisfactory to Borrower and have been approved by all applicable Governmental Authorities and any private party having the contractual right to approve all or part of the Plans and Specifications. Upon delivery to Lender of the plans and specifications for the Future Components as required in this Agreement, the term “Plans and Specifications” shall include such plans and specifications. (j) Borrower has delivered to Lender a cost schedule, a copy of which is attached hereto as Exhibit C and made a part hereof (the “Schedule of Project Costs”), which shows all categories of costs projected to be incurred in connection with the Project, including the cost of construction of the New Improvements and certain related costs and expenses, and the expected sources of funds to pay such costs. (k) The Project is not subject to any management agreement or similar arrangement other than the Management Agreement. True and correct copies of the Management Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Management Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Management Agreement is in full force and effect. There is no default in existence under the Management Agreement. (l) True and correct copies of the Construction Contract, together with any and all amendments thereto, have been furnished to Lender and are attached to the Borrower’s Certification, and the Construction Contract has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Construction Contract represents the entire agreement between Borrower and General Contractor with respect to the construction of the Project. The Construction Contract is in full force and effect. There is no default in existence under the Construction Contract. (m) True and correct copies of the Architect’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Architect’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Architect’s Agreement represents the entire agreement between Borrower and Architect with respect to the design of and architectural services for the Project. The Architect’s Agreement is in full force and effect. There is no default in existence under the Architect’s Agreement. (n) True and correct copies of the Engineer’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Engineer’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Engineer’s Agreement represents the entire agreement between Borrower and Engineer with respect to the design of the Project. The Engineer’s Agreement is in full force and effect. There is no default in existence under the Engineer’s Agreement.
Appears in 1 contract
Relating to the Project. Borrower represents and warrants to Lender that:
(a) Borrower owns good and marketable fee simple title to the Project, subject to no lien, charge or encumbrance except those related to the Existing Construction Loan and such as are listed as exceptions to title or exclusions from coverage in the title insurance policy being issued to Lender concurrently with the execution of the Second Mortgage and pursuant to Section 8.1(b).
(b) All personal property with respect to which Borrower has granted to Lender a security interest pursuant to any of the Loan Documents is otherwise owned by Borrower free and clear of all liens, encumbrances and security interests except those related to the Existing Construction Loan.
(i) The Project is subject to the leases listed and described on Exhibit B attached hereto and made a part hereof (“Existing Leases”). Except for the Existing Leases, the Project is not subject to any other leases, occupancy rights or similar arrangements. Except as may be set forth in Exhibit B, none of the Existing Leases has been amended, modified or supplemented in any respect or terminated or canceled. The Existing Leases represent the entire agreements between Borrower and the respective applicable tenants (“Existing Tenants”) with respect to the lease of the portions of the Project covered thereby. Each of the Existing Leases is in full force and effect. Borrower knows of no material defaults under Existing Leases in the aggregate which, in the judgment of Lender, could have a material adverse effect on the financial condition of Borrower or the Project. There are no existing defenses or offsets against the obligation to pay the rents or other charges due under any of the Existing Leases or against the enforcement of any of the Existing Leases by Borrower. Except as may be set forth in Exhibit B, there are no agreements covering free rent, partial rent, rebate of rental payments or any other type of rental concessions with respect to any of the Existing Leases. None of the Existing Leases contains any options or rights of first refusal to purchase any portion or all of the Project. There have not been any prepayments of any rent under any of the Existing Leases more than thirty (30) days in advance. Except as may be set forth in Exhibit B, there is no provision for the payment of any security deposit under any of the Existing Leases. Borrower has not mortgaged, assigned, pledged, granted a security interest in or otherwise encumbered its interest in any of the Existing Leases in favor of any person or entity other than Lender.
(ii) Borrower has delivered to Lender a rent roll for the Project dated within thirty (30) days of the Closing Date, in form and substance reasonably satisfactory to Lender and certified as true and correct by Sole Member. For the twelve (12) month period immediately preceding the effective date of such rent roll, the pro forma Debt Service Coverage Ratio (on an “as is” interest only basis) is at least 1.50 to 1.
(d) No notice of taking by eminent domain or condemnation of any part of the Project has been received, and Borrower has no knowledge that any such proceeding is contemplated. No part of the Project has been damaged or injured as a result of any fire, explosion, accident, flood, or other casualty which is not now fully restored.
(e) The Premises constitutes a separate legally subdivided lot for purposes of real estate tax and assessment purposes.. Back to Contents
(f) The Premises abut and have direct access to a legally open public right-of-way. All streets necessary for the full utilization of the Project for its intended purpose have been completed or, if not completed, are located within the boundaries of the Premises or the necessary rights of way therefore have been acquired by or dedicated to the appropriate Governmental Authority. All costs of street improvements to be completed by Borrower are included in the Schedule of Project Costs.
(g) Electricity, public potable water and public sanitary and storm sewerage facilities and natural gas service are connected to the Premises and are of sufficient capacity to service the Improvements. Sanitary sewerage facilities sufficient to serve the Improvements have been authorized by the reservation and allocation to the Project of irrevocable equivalent dwelling units (“EDUs”). All costs for installing and connecting all such utilities (including tap-in and connection fees) are included in the Schedule of Project Costs.
(i) Except for building permits for the construction of Future Components, which will be obtained prior to commencement of construction of the applicable building, all All necessary approvals from the Governmental Authorities having jurisdiction over the Project including, but not limited to, street openings, closings and relocations, zoning variances and permits, sewer allocation and construction agreements, environmental permits and approvals, building permits, highway occupancy permits, and subdivision and land development approvals (collectively, the “Governmental Approvals”), have been obtained for the construction of the Project and are final, unappealed, and unappealable, and remain in full force and effect. Borrower has satisfied all conditions imposed by any Governmental Authority on the grant of the Governmental Approvals required to be satisfied as of the Closing Date and necessary to construct the New Improvements except for the Future Components, and Borrower has full legal right to immediately commence construction of the New Improvements and diligently prosecute the same to completion.
(ii) Without limiting the generality of the foregoing, the Premises are located in the CG Zoning District (Commercial General) in East Pennsboro Township, and in the CS Zoning District (Regional Shopping Center District) in the Borough of Camp Hill and Borrower’s proposed development of the Project is in conformity with the use, zoning, bulk area and other requirements of the East Pennsboro Township and Camp Hill Borough Zoning Codes as applicable to it without need for any variances or special exceptions therefrom.
(i) Borrower has delivered to Lender true, correct and complete copies of the plans and specifications for construction of the New Improvements other than the Future Components (the “Plans and Specifications”). The Plans and Specifications are satisfactory to Borrower and have been approved by all applicable Governmental Authorities and any private party having the contractual right to approve all or part of the Plans and Specifications. Upon delivery to Lender of the plans and specifications for the Future Components as required in this Agreement, the term “Plans and Specifications” shall include such plans and specifications.
(j) Borrower has delivered to Lender a cost schedule, a copy of which is attached hereto as Exhibit C and made a part hereof (the “Schedule of Project Costs”), which shows all categories of costs projected to be incurred in connection with the Project, including the cost of construction of the New Improvements and certain related costs and expenses, and the expected sources of funds to pay such costs.
(k) The Project is not subject to any management agreement or similar arrangement other than the Management Agreement. True and correct copies of the Management Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Management Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Management Agreement is in full force and effect. There is no default in existence under the Management Agreement.
(l) True and correct copies of the Construction Contract, together with any and all amendments thereto, have been furnished to Lender and are attached to the Borrower’s Certification, and the Construction Contract has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Construction Contract represents the entire agreement between Borrower and General Contractor with respect to the construction of the Project. The Construction Contract is in full force and effect. There is no default in existence under the Construction Contract.
(m) True and correct copies of the Architect’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Architect’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Architect’s Agreement represents the entire agreement between Borrower and Architect with respect to the design of and architectural services for the Project. The Architect’s Agreement is in full force and effect. There is no default in existence under the Architect’s Agreement.
(n) True and correct copies of the Engineer’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Engineer’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Engineer’s Agreement represents the entire agreement between Borrower and Engineer with respect to the design of the Project. The Engineer’s Agreement is in full force and effect. There is no default in existence under the Engineer’s Agreement.
Appears in 1 contract
Relating to the Project. Borrower represents and warrants to Lender that:
(a) Borrower owns good and marketable fee simple title to the Project, subject to no lien, charge or encumbrance except those related to the Existing Loan and such as are listed as exceptions to title or exclusions from coverage in the title insurance policy being issued to Lender concurrently with the execution of the Second Mortgage and pursuant to Section 8.1(b7.2(d). The purchase price paid by Borrower for the Project was $17,200,000. Borrower has delivered to Lender true, correct and complete copies of the Agreement of Sale and Deed for the Project.
(b) All personal property with respect to which Borrower has granted to Lender a security interest pursuant to any of the Loan Documents is otherwise owned by Borrower free and clear of all liens, encumbrances and security interests except those related to the Existing Loaninterests.
(i) The Project is subject to the leases listed and described on Exhibit B attached hereto and made a part hereof (“"Existing Leases”"), including without limitation those leases denoted on Exhibit B as "Primary Leases" with respect to which the tenants thereunder are Boscov's, Giant Foods and Xxxxxx and Noble, respectively ("Primary Leases"). Except for the Existing Leases, the Project is not subject to any other leases, occupancy rights or similar arrangements. Except To the best of Borrowers knowledge after diligent inquiry, except as may be set forth in Exhibit B, none of the Existing Leases has been amended, modified or supplemented in any respect or terminated or canceled. The To the best of Borrower's knowledge after diligent inquiry, the Existing Leases represent the entire agreements between Borrower and the respective applicable tenants (“"Existing Tenants”") with respect to the lease of the portions of the Project covered thereby. Each of the Existing Leases is in full force and effect. Borrower knows of no material defaults under Existing Leases in the aggregate which, in the judgment of Lender, could have a material adverse effect on the financial condition of Borrower or the Project. There To the best of Borrower's knowledge, there are no existing defenses or offsets against the obligation to pay the rents or other charges due under any of the Existing Leases or against the enforcement of any of the Existing Leases by Borrower. Except as may be set forth in Exhibit B, there are no agreements covering free rent, partial rent, rebate of rental payments or any other type of rental concessions with respect to any of the Existing Leases. None of the Existing Leases contains any options or rights of first refusal to purchase any portion or all of the Project. There have not been any prepayments of any rent under any of the Existing Leases more than thirty (30) days in advanceLeases. Except as may be set forth in Exhibit B, there is no provision for the payment of any security deposit under any of the Existing Leases. Borrower has not mortgaged, assigned, pledged, granted a security interest in or otherwise encumbered its interest in any of the Existing Leases in favor of any person or entity other than Lender.
(ii) Borrower has delivered to Lender a rent roll for the Project dated within thirty (30) days of the Closing Date, in form and substance reasonably satisfactory to Lender and certified as true and correct by Sole MemberCedar Operating Partnership. For To the best of Borrower's knowledge, after due inquiry into and analysis of the historical operating expenses of the Project for the twelve (12) month period immediately preceding the effective date of such rent roll, the pro forma Net Operating Income (based upon such rent roll and such historical operating expense) is equal to or more than $1,300,000 and the pro forma Debt Service Coverage Ratio (on an “as is” interest only basisbased upon such Net Operating Income and debt service for the first year under the Loan) is at least 1.50 more than 1.75 to 1.
(d) No Borrower has delivered to Lender a true, correct and complete copy of the Management Agreement dated the date hereof between Borrower and Existing Manager ("Existing Management Agreement"). There are no other management agreements to which Borrower is a party relating to the Project. The Existing Management Agreement has not been amended, modified or supplemented in any respect or terminated or canceled. The Existing Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Existing Management Agreement is in full force and effect, there are no defaults thereunder, and Borrower knows of no events or conditions which, with passage of time or notice or both, would constitute a default thereunder.
(e) Except as set forth on Schedule 5.1(e) hereto, no notice of taking by eminent domain or condemnation of any part Part of the Project has been received, and Borrower has no knowledge that any such proceeding is contemplated. No part of the Project has been damaged or injured as a result of any fire, explosion, accident, flood, or other casualty which is not now fully restored.
(e) The Premises constitutes a separate legally subdivided lot for purposes of real estate tax and assessment purposes.
(f) The Premises abut and have direct access to a legally open public right-of-right of way. All streets necessary for the full utilization of the Project for its intended purpose have been completed or, if not completed, are located within the boundaries of the Premises or the necessary rights of way therefore therefor have been acquired by or dedicated to the appropriate Governmental Authority. All costs of street improvements to be completed by Borrower are included in the Schedule of Project Costshave been paid.
(g) Electricity, public potable water and public sanitary and storm sewerage facilities and natural gas service are connected to the Premises and are of sufficient capacity to service the Improvements. Sanitary sewerage facilities sufficient to serve the Improvements have been authorized by the reservation and allocation to the Project of irrevocable equivalent dwelling units (“EDUs”). All costs for installing and connecting all such utilities (including tap-in and connection fees) are included in the Schedule of Project Costshave been paid.
(ih) Except for building permits for the construction of Future Components, which will be obtained prior to commencement of construction of the applicable building, all All necessary approvals from the Governmental Authorities having jurisdiction over the Project including, but not limited to, street openings, closings and relocations, zoning variances and permits, sewer allocation and construction agreements, environmental permits and approvals, building permits, highway occupancy permits, and subdivision and land development approvals (collectively, the “"Governmental Approvals”), ") have been obtained for the construction development, ownership and operation of the Project Project, are final and are final, unappealed, and unappealable, not subject to approval and remain in full force and effect. Borrower has satisfied all conditions imposed by any Governmental Authority on the grant of the Governmental Approvals required to be satisfied as of the Closing Date and necessary to construct the New Improvements except for the Future Components, and Borrower has full legal right to immediately commence construction of the New Improvements and diligently prosecute the same to completion.
(ii) Without limiting the generality of the foregoing, the Premises are located in the CG Zoning District (Commercial General) in East Pennsboro Township, and in the CS Zoning District (Regional Shopping Center District) in the Borough of Camp Hill and Borrower’s proposed development of the Project is in conformity with the use, zoning, bulk area and other requirements of the East Pennsboro Township and Camp Hill Borough Zoning Codes as applicable to it without need for any variances or special exceptions therefrom.
(i) Borrower has delivered to Lender true, correct and complete copies of the plans and specifications for construction of the New Improvements other than the Future Components (the “Plans and Specifications”). The Plans and Specifications are satisfactory to Borrower and have been approved by all applicable Governmental Authorities and any private party having the contractual right to approve all or part of the Plans and Specifications. Upon delivery to Lender of the plans and specifications for the Future Components as required in this Agreement, the term “Plans and Specifications” shall include such plans and specifications.
(j) Borrower has delivered to Lender a cost schedule, a copy of which is attached hereto as Exhibit C and made a part hereof (the “Schedule of Project Costs”), which shows all categories of costs projected to be incurred in connection with the Project, including the cost of construction of the New Improvements and certain related costs and expenses, and the expected sources of funds to pay such costs.
(k) The Project is not subject to any management agreement or similar arrangement other than the Management Agreement. True and correct copies of the Management Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Management Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Management Agreement is in full force and effect. There is no default in existence under the Management Agreement.
(l) True and correct copies of the Construction Contract, together with any and all amendments thereto, have been furnished to Lender and are attached to the Borrower’s Certification, and the Construction Contract has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Construction Contract represents the entire agreement between Borrower and General Contractor with respect to the construction of the Project. The Construction Contract is in full force and effect. There is no default in existence under the Construction Contract.
(m) True and correct copies of the Architect’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Architect’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Architect’s Agreement represents the entire agreement between Borrower and Architect with respect to the design of and architectural services for the Project. The Architect’s Agreement is in full force and effect. There is no default in existence under the Architect’s Agreement.
(n) True and correct copies of the Engineer’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Engineer’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Engineer’s Agreement represents the entire agreement between Borrower and Engineer with respect to the design of the Project. The Engineer’s Agreement is in full force and effect. There is no default in existence under the Engineer’s Agreement.the
Appears in 1 contract
Relating to the Project. Borrower represents and warrants to Lender that:
(a) Borrower owns good and marketable fee simple title to the Project, subject to no lien, charge or encumbrance except those related to the Existing Loan and such as are listed as exceptions to title or exclusions from coverage in the title insurance policy being issued to Lender concurrently with the execution of the Second Mortgage and pursuant to Section 8.1(b7.2(d). The aggregate purchase price paid by Borrower for the Project was $5,240,000. Borrower has delivered to Lender true, correct and complete copies of the Agreement of Sale and Deed for the Project.
(b) All personal property with respect to which Borrower has granted to Lender a security interest pursuant to any of the Loan Documents is otherwise owned by Borrower free and clear of all liens, encumbrances and security interests except those related to the Existing Loaninterests.
(i) The Project is subject to the leases listed and described on Exhibit B attached hereto and made a part hereof (“"Existing Leases”"), including without limitation the Giant Lease and the McDonald's Lease. Except for the Existing Leases, the Project is not subject to any other leases, occupancy rights or similar arrangements. Except To the best of Borrower's knowledge after diligent inquiry, except as may be set forth in Exhibit B, none of the Existing Leases has been amended, modified or supplemented in any respect or terminated or canceled. The To the best of Borrower's knowledge after diligent inquiry, the Existing Leases represent the entire agreements between Borrower and the respective applicable tenants (“"Existing Tenants”") with respect to the lease of the portions of the Project covered thereby. Each of the Existing Leases is in full force and effect. Borrower knows of no material defaults under Existing Leases in the aggregate which, in the judgment of Lender, could have a material adverse effect on the financial condition of Borrower or the Project. There To the best of Borrower's knowledge after diligent inquiry, there are no existing defenses or offsets against the obligation to pay the rents or other charges due under any of the Existing Leases or against the enforcement of any of the Existing Leases by Borrower. Except as may be set forth in Exhibit B, there are no agreements covering free rent, partial rent, rebate of rental payments or any other type of rental concessions with respect to any of the Existing Leases. None Except for the McDonalds Lease, none of the Existing Leases contains any options or rights of first refusal to purchase any portion or all of the ProjectProject in favor of a tenant. There have not been any prepayments of any rent under any of the Existing Leases more than thirty (30) days in advanceLeases. Except as may be set forth in Exhibit B, there is no provision for the payment of any security deposit under any of the Existing Leases. Borrower has not mortgaged, assigned, pledged, granted a security interest in or otherwise encumbered its interest in any of the Existing Leases in favor of any person or entity other than Lender.
(ii) Borrower has delivered to Lender a rent roll for the Project dated within thirty (30) days of the Closing Date, in form and substance reasonably satisfactory to Lender and certified as true and correct by Sole MemberCedar Operating Partnership. For To the best of Borrower's knowledge, after due inquiry into and analysis of the historical operating expenses of the Project for the twelve (12) month period immediately preceding the effective date of such rent roll, the pro forma Net Operating Income (based upon such rent roll and such historical operating expenses) is equal to or more than $490,000 and the Debt Service Coverage Ratio (on an “as is” interest only basis) is at least 1.50 more than 1.25 to 1.
(d) Borrower has delivered to Lender a true, correct and complete copy of the Management Agreement dated the date of this Agreement between Borrower and Existing Manager ("Existing Management Agreement"). There are no other management agreements to which Borrower is a party relating to the Project. The Existing Management Agreement has not been amended, modified or supplemented in any respect or terminated or canceled. The Existing Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Existing Management Agreement is in full force and effect, there are no defaults thereunder, and Borrower knows of no events or conditions which, with passage of time or notice or both, would constitute a default thereunder.
(e) No notice of taking by eminent domain or condemnation of any part of the Project has been received, and Borrower has no knowledge that any such proceeding is contemplated. No part of the Project has been damaged or injured as a result of any fire, explosion, accident, flood, or other casualty which is not now fully restored.
(e) The Premises constitutes a separate legally subdivided lot for purposes of real estate tax and assessment purposes.
(f) The To the best of Borrower's knowledge after diligent inquiry, the Premises abut and have has direct access to a legally open public right-of-right of way. All streets necessary for the full utilization of the Project for its intended purpose purposes have been completed or, if not completed, are located within the boundaries of the Premises or the necessary rights of way therefore have been acquired by or dedicated to the appropriate Governmental Authority. All costs of street improvements to be completed by Borrower are included in the Schedule of Project Costshave been paid.
(g) ElectricityTo the best of Borrower's knowledge after diligent inquiry, electricity, public potable water and public sanitary and storm sewerage facilities and natural gas service are connected to the Premises and are of sufficient capacity to service the Improvements. Sanitary sewerage facilities sufficient to serve the Improvements have been authorized by the reservation , and allocation to the Project of irrevocable equivalent dwelling units (“EDUs”). All all costs for installing and connecting all such utilities (including tap-in and connection fees) are included in the Schedule of Project Costshave been paid.
(ih) Except for building permits for To the construction best of Future Components, which will be obtained prior to commencement of construction of the applicable buildingBorrower's knowledge after diligent inquiry, all necessary approvals from the Governmental Authorities having jurisdiction over the Project including, but not limited to, street openings, closings and relocations, zoning variances and permits, sewer allocation and construction agreements, environmental permits and approvals, building permits, highway occupancy permits, and subdivision and land development approvals (collectively, the “"Governmental Approvals”), ") have been obtained for the construction development, ownership and operation of the Project Project, are final and are final, unappealed, and unappealable, not subject to approval and remain in full force and effect. Borrower has satisfied all conditions imposed by any Governmental Authority on the grant of the Governmental Approvals required to be satisfied as Approvals. To the best of the Closing Date and necessary to construct the New Improvements except for the Future Components, and Borrower has full legal right to immediately commence construction of the New Improvements and diligently prosecute the same to completion.
(ii) Without limiting the generality of the foregoingBorrower's knowledge after diligent investigation, the Premises are located in the CG Zoning District (Commercial General) in East Pennsboro Township, ownership and in the CS Zoning District (Regional Shopping Center District) in the Borough of Camp Hill and Borrower’s proposed development operation of the Project is are in conformity compliance with the use, zoning, bulk area and other requirements of the East Pennsboro Township and Camp Hill Borough Zoning Codes as all applicable to it without need for any variances or special exceptions therefromLaws.
(i) No statement of fact made by Borrower has delivered to Lender true, correct and complete copies of the plans and specifications for construction of the New Improvements other than the Future Components (the “Plans and Specifications”). The Plans and Specifications are satisfactory to Borrower and have been approved by all applicable Governmental Authorities and any private party having the contractual right to approve all or part of the Plans and Specifications. Upon delivery to Lender of the plans and specifications for the Future Components as required in this Agreement, the term “Plans and Specifications” shall include such plans and specifications.
(j) Borrower has delivered to Lender a cost schedule, a copy of which is attached hereto as Exhibit C and made a part hereof (the “Schedule of Project Costs”), which shows all categories of costs projected to be incurred in connection with the Project, including the cost of construction of the New Improvements and certain related costs and expenses, and the expected sources of funds to pay such costs.
(k) The Project is not subject to any management agreement or similar arrangement other than the Management Agreement. True and correct copies of the Management Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Management Agreement has not been otherwise amended, modified or supplemented in any respect Loan Documents contains any untrue statement of a material fact or terminated or cancelled. The Management Agreement represents the entire agreement between Borrower and Existing Manager with respect omits to the management of the Project. The Management Agreement is in full force and effectstate any material fact necessary to make statements contained therein not misleading. There is no default in existence under the Management Agreement.
(l) True and correct copies of the Construction Contract, together with any and all amendments thereto, have been furnished material fact presently known to Lender and are attached to the Borrower’s Certification, and the Construction Contract Borrower that has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Construction Contract represents the entire agreement between Borrower and General Contractor with respect to the construction of the Project. The Construction Contract is in full force and effect. There is no default in existence under the Construction Contract.
(m) True and correct copies of the Architect’s Agreement, together with any and all amendments thereto, have been furnished disclosed to Lender and is attached to which materially adversely affects, or, as far as Borrower can foresee, might materially adversely affect, the Project or the business operations or condition (financial or otherwise) of Borrower’s Certification, and the Architect’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Architect’s Agreement represents the entire agreement between Borrower and Architect with respect to the design of and architectural services for the Project. The Architect’s Agreement is in full force and effect. There is no default in existence under the Architect’s Agreement.
(n) True and correct copies of the Engineer’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Engineer’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Engineer’s Agreement represents the entire agreement between Borrower and Engineer with respect to the design of the Project. The Engineer’s Agreement is in full force and effect. There is no default in existence under the Engineer’s Agreement.
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Relating to the Project. Borrower represents and warrants to Lender that:
(a) Borrower owns good and marketable fee simple title to the Project, subject to no lien, charge or encumbrance except those related to the Existing Loan and such as are listed as exceptions to title or exclusions from coverage in the title insurance policy being issued to Lender concurrently with the execution of the Second Mortgage and pursuant to Section 8.1(b7.2(d). The aggregate purchase price paid by Borrower for the Project was $4,800,000. Borrower has delivered to Lender true, correct and complete copies of the Agreement of Sale and Deed for the Project.
(b) All personal property with respect to which Borrower has granted to Lender a security interest pursuant to any of the Loan Documents is otherwise owned by Borrower free and clear of all liens, encumbrances and security interests except those related to the Existing Loaninterests.
(i) The Project is subject to the leases listed and described on Exhibit B attached hereto and made a part hereof (“"Existing Leases”"), including without limitation the Giant Lease and the McDonald's Lease. Except for the Existing Leases, the Project is not subject to any other leases, occupancy rights or similar arrangements. Except To the best of Borrower's knowledge after diligent inquiry, except as may be set forth in Exhibit B, none of the Existing Leases has been amended, modified or supplemented in any respect or terminated or canceled. The To the best of Borrower's knowledge after diligent inquiry, the Existing Leases represent the entire agreements between Borrower and the respective applicable tenants (“"Existing Tenants”") with respect to the lease of the portions of the Project covered thereby. Each of the Existing Leases is in full force and effect. Borrower knows of no material defaults under Existing Leases in the aggregate which, in the judgment of Lender, could have a material adverse effect on the financial condition of Borrower or the Project. There To the best of Borrower's knowledge after diligent inquiry, there are no existing defenses or offsets against the obligation to pay the rents or other charges due under any of the Existing Leases or against the enforcement of any of the Existing Leases by Borrower. Except as may be set forth in Exhibit B, there are no agreements covering free rent, partial rent, rebate of rental payments or any other type of rental concessions with respect to any of the Existing Leases. None Except for the McDonald's Lease, none of the Existing Leases contains any options or rights of first refusal to purchase any portion or all of the ProjectProject in favor of a tenant. There have not been any prepayments of any rent under any of the Existing Leases more than thirty (30) days in advanceLeases. Except as may be set forth in Exhibit B, there is no provision for the payment of any security deposit under any of the Existing Leases. Borrower has not mortgaged, assigned, pledged, granted a security interest in or otherwise encumbered its interest in any of the Existing Leases in favor of any person or entity other than Lender.
(ii) Borrower has delivered to Lender a rent roll for the Project dated within thirty (30) days of the Closing Date, in form and substance reasonably satisfactory to Lender and certified as true and correct by Sole MemberCedar Operating Partnership. For To the best of Borrower's knowledge, after due inquiry into and analysis of the historical operating expenses of the Project for the twelve (12) month period immediately preceding the effective date of such rent roll, the pro forma Net Operating Income (based upon such rent roll and such historical operating expenses) is equal to or more than $450,000 and the Debt Service Coverage Ratio (on an “as is” interest only basis) is at least 1.50 more than 1.25 to 1.
(d) Borrower has delivered to Lender a true, correct and complete copy of the Management Agreement dated the date of this Agreement between Borrower and Existing Manager ("Existing Management Agreement"). There are no other management agreements to which Borrower is a party relating to the Project. The Existing Management Agreement has not been amended, modified or supplemented in any respect or terminated or canceled. The Existing Management Agreement represents the entire agreement between Borrower and Existing Manager with respect to the management of the Project. The Existing Management Agreement is in full force and effect, there are no defaults thereunder, and Borrower knows of no events or conditions which, with passage of time or notice or both, would constitute a default thereunder.
(e) No notice of taking by eminent domain or condemnation of any part of the Project has been received, and Borrower has no knowledge that any such proceeding is contemplated. No part of the Project has been damaged or injured as a result of any fire, explosion, accident, flood, or other casualty which is not now fully restored.
(e) The Premises constitutes a separate legally subdivided lot for purposes of real estate tax and assessment purposes.
(f) The To the best of Borrower's knowledge after diligent inquiry, the Premises abut and have has direct access to a legally open public right-of-right of way. All streets necessary for the full utilization of the Project for its intended purpose purposes have been completed or, if not completed, are located within the boundaries of the Premises or the necessary rights of way therefore have been acquired by or dedicated to the appropriate Governmental Authority. All costs of street improvements to be completed by Borrower are included in the Schedule of Project Costshave been paid.
(g) ElectricityTo the best of Borrower's knowledge after diligent inquiry, electricity, public potable water and public water, private sanitary and storm sewerage facilities and natural gas service are connected to the Premises and are of sufficient capacity to service the Improvements. Sanitary Improvements (subject, in the case of the sanitary sewerage facilities sufficient to serve the Improvements have been authorized by the reservation and allocation facilities, to the Project of irrevocable equivalent dwelling units (“EDUs”Sewer Construction Work, as hereafter defined). All costs for installing and connecting all such utilities (including tap-in and connection fees) are included in the Schedule of Project Costshave been paid.
(ih) Except for building permits for To the construction best of Future Components, which will be obtained prior to commencement of construction of the applicable buildingBorrower's knowledge after diligent inquiry, all necessary approvals from the Governmental Authorities having jurisdiction over the Project including, but not limited to, street openings, closings and relocations, zoning variances and permits, sewer allocation and construction agreements, environmental permits and approvals, building permits, highway occupancy permits, and subdivision and land development approvals (collectively, the “"Governmental Approvals”), ") have been obtained for the construction development, ownership and operation of the Project Project, are final and are final, unappealed, and unappealable, not subject to approval and remain in full force and effect. Borrower has satisfied all conditions imposed by any Governmental Authority on the grant of the Governmental Approvals required to be satisfied as Approvals. To the best of the Closing Date and necessary to construct the New Improvements except for the Future Components, and Borrower has full legal right to immediately commence construction of the New Improvements and diligently prosecute the same to completion.
(ii) Without limiting the generality of the foregoingBorrower's knowledge after diligent investigation, the Premises are located in the CG Zoning District (Commercial General) in East Pennsboro Township, ownership and in the CS Zoning District (Regional Shopping Center District) in the Borough of Camp Hill and Borrower’s proposed development operation of the Project is are in conformity compliance with the use, zoning, bulk area and other requirements of the East Pennsboro Township and Camp Hill Borough Zoning Codes as all applicable to it without need for any variances or special exceptions therefromLaws.
(i) Borrower has delivered to Lender true, correct and complete copies of the plans NPDES Permit dated May 20, 2002, the Water Quality Management Part II Permit Application dated August 30, 2002, and specifications addenda dated November 4, 2002, and the Agreement between Borrower, as successor to Xxxxxxxx Development, Inc., and Newport Assembly of God Church (the "Church"), all relating to the operation of a sewage treatment facility on the Premises for construction the benefit solely of the New Improvements other than tenants of the Future Components (Premises and the “Plans and Specifications”)Church. The Plans and Specifications are satisfactory to Borrower and have been approved by all applicable Governmental Authorities and any private party having NPDES Permit permits the contractual right to approve all or part continued operation of the Plans sewage treatment facility through June 1, 2007 conditioned upon the design, modification and Specifications. Upon delivery to Lender upgrade of the plans sewage treatment facility in accordance with the terms thereof. Borrower is in the process of the design, modification and specifications for upgrade of the Future Components as required sewage treatment facility in this Agreement, accordance with the term “Plans NPDES Permit and Specifications” shall include such plans is otherwise in compliance in all respects with the NPDES Permit and specificationsthe Agreement with the Church.
(j) No statement of fact made by Borrower has delivered to Lender a cost schedule, a copy of which is attached hereto as Exhibit C and made a part hereof (the “Schedule of Project Costs”), which shows all categories of costs projected to be incurred in connection with the Project, including the cost of construction of the New Improvements and certain related costs and expenses, and the expected sources of funds to pay such costs.
(k) The Project is not subject to any management agreement or similar arrangement other than the Management Agreement. True and correct copies of the Management Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Management Agreement has not been otherwise amended, modified or supplemented in any respect Loan Documents contains any untrue statement of a material fact or terminated or cancelled. The Management Agreement represents the entire agreement between Borrower and Existing Manager with respect omits to the management of the Project. The Management Agreement is in full force and effectstate any material fact necessary to make statements contained therein not misleading. There is no default in existence under the Management Agreement.
(l) True and correct copies of the Construction Contract, together with any and all amendments thereto, have been furnished material fact presently known to Lender and are attached to the Borrower’s Certification, and the Construction Contract Borrower that has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Construction Contract represents the entire agreement between Borrower and General Contractor with respect to the construction of the Project. The Construction Contract is in full force and effect. There is no default in existence under the Construction Contract.
(m) True and correct copies of the Architect’s Agreement, together with any and all amendments thereto, have been furnished disclosed to Lender and is attached to which materially adversely affects, or, as far as Borrower can foresee, might materially adversely affect, the Project or the business operations or condition (financial or otherwise) of Borrower’s Certification, and the Architect’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Architect’s Agreement represents the entire agreement between Borrower and Architect with respect to the design of and architectural services for the Project. The Architect’s Agreement is in full force and effect. There is no default in existence under the Architect’s Agreement.
(n) True and correct copies of the Engineer’s Agreement, together with any and all amendments thereto, have been furnished to Lender and is attached to the Borrower’s Certification, and the Engineer’s Agreement has not been otherwise amended, modified or supplemented in any respect or terminated or cancelled. The Engineer’s Agreement represents the entire agreement between Borrower and Engineer with respect to the design of the Project. The Engineer’s Agreement is in full force and effect. There is no default in existence under the Engineer’s Agreement.
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