Representations and Warranties With Respect To Properties and Leases.
Appears in 2 contracts
Samples: Master Indenture (FrontView REIT, Inc.), Master Indenture (American Finance Trust, Inc)
Representations and Warranties With Respect To Properties and Leases. Except as set forth in Schedule I of the applicable Series Supplement, each of the applicable Issuers shall make the following representations and warranties and the representations and warranties set forth in Exhibit A of such Series Supplement, as of the applicable Series Closing Date, Transfer Date, Post-Closing Acquisition Date or Master Lease Addition Date, as applicable, with respect to the Properties and Leases indicated in such Series Supplement or otherwise added to the Collateral Pool by such Issuer in connection with the issuance of any Series of Notes or as Qualified Substitute Properties, Qualified Substitute Hybrid Leases, Post-Closing Properties or Additional Master Lease Properties:
(a) There are no pending actions, suits or proceedings, arbitrations or governmental investigations against such Issuer or the related Properties, an adverse outcome of which would materially affect (i) such Issuer’s performance under the Notes, the Indenture (including any applicable Series Supplement) or the other Transaction Documents to which it is a party, or the use of such Properties for the use currently being made thereof, the operation of such Properties as currently being operated or the value of such Properties or (ii) the collectability or enforceability of the Mortgages with respect to such Properties or the related Leases.
(b) Such Issuer has good, marketable (or with respect to the related Properties located in Texas, indefeasible) and insurable title to each Property and good title to the balance of such Property, and has the full power, authority and right to deed, encumber, mortgage, give, grant, bargain, sell, alienate, setoff, convey, confirm, pledge, assign and hypothecate the same and such Issuer possesses an unencumbered fee estate, or ground lease interest, in each Property and the Improvements thereon (other than the Improvements with respect to a Hybrid Lease) and it owns each Property free and clear of all liens, encumbrances and charges whatsoever except for Permitted Encumbrances and each Mortgage is a valid, enforceable and continuing first lien on and security interest in the applicable Property, subject only to said Permitted Encumbrances.
(c) The Permitted Encumbrances do not materially and adversely affect (i) the ability of such Issuer to pay in full the principal and interest on the Notes in a timely manner or (ii) the use of the related Properties for the use currently being made thereof or the operation of such Properties as currently being operated.
(d) Upon the execution by such Issuer and the recording of each Mortgage, and upon the proper filing of UCC Financing Statements covering such Issuer’s interest in the “Equipment” (as defined in the Mortgages), if any, the Indenture Trustee will have a valid first lien on the related Properties and a valid security interest in such Issuer’s interest in such Equipment, if any, subject to no liens, charges or encumbrances other than the Permitted Encumbrances.
(e) Each Property is covered by an ALTA (or an equivalent form thereof as adopted in the applicable jurisdiction) Title Insurance Policy, in an amount at least equal to the initial Appraised Value of such Property, issued during the 6 months after the date of acquisition thereof. The Title Insurance Policy insures, as of the date of such policy (or any date-down endorsement to such policy), that the related Mortgage is a valid first lien on the fee or leasehold interest in such Property subject only to the Permitted Encumbrances (to the extent stated therein); such Title Insurance Policy is in full force and effect and names the Collateral Agent as the mortgagee of record; such Title Insurance Policy is assignable to assignees of the insured in accordance with its terms. All premiums for the Title Insurance Policy have been paid and no material claims have been made hereunder. The Title Insurance Policy has been issued by a company licensed to issue such policies in the state in which such Property is located.
(f) The related Properties have adequate rights of access to public ways and are served by adequate water, sewer, sanitary sewer and storm drain facilities. Except as disclosed in surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all public utilities necessary to the continued use and enjoyment of such Properties as presently used and enjoyed are located in the public right-of-way abutting such Property or an adjacent mortgaged property, and all such utilities are connected so as to serve such Properties, directly from such public right-of-way, through such adjacent mortgaged property or through valid easements insured under the Title Insurance Policies. All roads necessary for the current utilization of such Properties have been completed and dedicated to public use and accepted by all Governmental Authorities or are the subject of access easements for the benefit of the applicable Property or an adjacent mortgaged property.
(g) Except as disclosed in the Title Insurance Policies, to the knowledge of such Issuer, there are no material pending or proposed special or other assessments for public Improvements or otherwise affecting the related Properties, nor, to the knowledge of such Issuer, are there any contemplated Improvements to such Properties that may result in such special or other assessments.
(h) There are no delinquent or unpaid Taxes affecting any Property which are or may become a lien of priority equal to or higher than the lien of the related Mortgage. For purposes of the representation and warranty, Taxes shall not be considered unpaid until the date on which interest and/or penalties would be payable thereon.
(i) Each related Property is free and clear of any mechanics’ and materialmen’s liens or liens in the nature thereof which would materially and adversely affect the value of such Property.
(j) No material Improvements on any Property are located in an area designated as Flood Zone A or Flood Zone V by the Federal Emergency Management Agency or otherwise located in a flood zone area as identified by the Federal Emergency Management Agency as a 100 year flood zone or special hazard area, except as may be shown on the surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, for which Properties such Issuer has caused the Tenant under the related Lease to obtain flood insurance in accordance with the provisions of the Property Management Agreement;
(k) All certifications, permits, licenses and approvals, including, without limitation, certificates of completion and occupancy permits required for the legal use, occupancy and operation of the related Properties (collectively, the “Licenses”) currently being operated have been obtained and are in full force and effect except to the extent the failure of any such License to be in full force and effect would not have a material adverse effect on such Issuer or the use and operation of any Property. The related Properties are free of material damage and are in good repair in all material respects, and there is no proceeding pending for the total or material partial condemnation of, or affecting, such Properties, or for the relocation of roadways providing access to any Property.
(l) Except as illustrated on surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all of the material Improvements which were included in determining the Appraised Value of each Property lie wholly within the boundaries and building restriction lines of such Property except to the extent such Improvements may encroach upon an adjoining Property, and no improvements on adjoining properties, other than an adjoining Property, encroach materially upon any property, and no easements or other encumbrances upon a Property encroach materially upon any of the Improvements, so as to affect the value or marketability of any Property, except those which are insured against by the Title Insurance Policies. Except as set forth on reports and surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all of the Improvements comply with all material requirements of any applicable zoning and subdivision laws and ordinances.
(m) Reserved.
(n) In connection with the acquisition of each Property, such Issuer inspected or caused to be inspected such Property by (i) appraisal inspection performed by an independent, third party Member of the Appraisal Institute appraiser and (ii) by a property condition engineer or (iii) otherwise as required by STORE Capital’s underwriting guidelines then in effect; the related Lease File or Loan File, as applicable, contains a survey with respect to such Property, which survey was deemed sufficient to delete the standard title survey exception (to the extent the deletion of such exception is available in the related state); in addition, such survey of such Property has been performed by a duly licensed surveyor or registered professional engineer in the jurisdiction in which such Property is situated, is certified to the Support Provider or the applicable Issuer and their successors and assigns, and the applicable title insurance company, with the signature and seal of a licensed engineer or surveyor affixed thereto and does not fail to reflect any material matter known to such Issuer affecting such Property or the title thereto.
(o) The related Properties are in compliance in all material respects with all Recorded Covenants and all Legal Requirements, including, without limitation, building and zoning ordinances and codes, the failure of which to comply with the same would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture (including such applicable Series Supplement) and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any related Property as security for the Notes.
(p) No fraudulent acts were committed by STORE Capital or such Issuer during the origination process with respect to each such Lease; and, there has not been committed by such Issuer or any other Person in occupancy of or involved in the operation or use of the related Properties any act or omission affording the federal government or any state or local government the right of forfeiture as against such Properties or any part thereof or any moneys paid in performance of such Issuer’s obligations under any of the Transaction Documents.
(q) Such Issuer is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect such Issuer or any Property, or such Issuer’s business, properties or assets, operations or condition, financial or otherwise. Such Issuer is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which such Issuer or any of the related Properties are bound, which default would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture (including such applicable Series Supplement) and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any related Property as security for the Notes.
(r) All financial data that have been delivered to the Indenture Trustee in respect of the related Properties, including, to such Issuer’s knowledge, any such data relating to Tenants under Leases, (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of such Properties as of the date of such reports and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein; provided, however, that it is expressly understood by each party hereto that any cost estimates, projections and other predictions contained in such data are not deemed to be representations of such Issuer. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of such Issuer from that set forth in said financial statements.
(s) Each Property is comprised of one (1) or more parcels, which constitute a separate tax lot or lots, and does not constitute a portion of any other tax lot not a part of such Property.
(t) The operation of any of the terms of the related Lease, or the exercise of any rights thereunder, does not render the Lease unenforceable, in whole or in part, or subject to any right of rescission, set-off, abatement, diminution, counterclaim or defense.
(u) Such Issuer has obtained and has delivered to the Custodian valid certificates of all insurance policies with respect to each Property owned by such Issuer reflecting the insurance coverages, amounts and other requirements set forth in the Indenture (including such applicable Series Supplement) or any of the other Transaction Documents. To such Issuer’s knowledge, no material pending claims have been made under any such policy, and no Person, including such Issuer, has done, by act or omission, anything which would materially impair the coverage of any such policy.
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Representations and Warranties With Respect To Properties and Leases. Except as set forth in Schedule I-B of the applicable Series Supplement, each of the applicable Issuers shall make the following representations and warranties and the representations and warranties set forth in Exhibit A of such Series Supplement, as of (i) the date specified in the applicable representation or warranty or (ii) if no date is specified, the later of (a) the most recent Series Closing Date and (b) with respect to any Qualified Substitute Property, as of the applicable Transfer Date with respect to (x) the Properties and Leases indicated in such Series Supplement or otherwise added to the Collateral Pool by such Issuer in connection with the issuance of any Series of Notes or (y) Qualified Substitute Properties acquired by an Issuer from a third party, as applicable:
(a) There are no pending actions, suits or proceedings, arbitrations or governmental investigations against such Issuer or the related Properties, an adverse outcome of which would materially affect (i) such Issuer’s performance under or ability to pay principal, interest or any other amounts due under the Notes, the Indenture (including any applicable Series Supplement) or the other Transaction Documents, or the use of such Properties for the use currently being made thereof, the operation of such Properties as currently being operated or the value of such Properties or (ii) the collectability or enforceability of the Mortgages with respect to such Properties or the related Leases.
(b) Such Issuer has good, marketable (or with respect to the related Properties located in Texas, indefeasible) and insurable title to each Property, and has the full power, authority and right to deed, encumber, mortgage, give, grant, bargain, sell, alienate, setoff, convey, confirm, pledge, assign and hypothecate the same; and such Issuer possesses an unencumbered fee estate, or ground lease interest, in each Property and, other than with respect to the Tenant Ground Leases, the improvements thereon, and it owns each Property free and clear of all liens, encumbrances and charges whatsoever except for Permitted Encumbrances and each Mortgage is a valid and enforceable first lien on and security interest in the applicable Property, subject only to said permitted encumbrances.
(c) With respect to any Property operating in the NAICS industry group Gas/Convenience Stores, the insurance policies with respect to such Property comply with state insurance funds or maintain policies of at least of $1 million.
(d) Upon the execution by such Issuer and the recording of each Mortgage, and upon the execution and proper filing of UCC Financing Statements (if required by a jurisdiction to perfect the security interest set forth in the Mortgage), the Indenture Trustee will have a valid first lien on the related Properties and a valid security interest in such Issuer’s interest in the “Equipment” (as defined in the Mortgages), if any, subject to no liens, charges or encumbrances other than the Permitted Encumbrances.
(e) Each Property is covered by an ALTA (or an equivalent form thereof as adopted in the applicable jurisdiction) title insurance policy (a “Title Policy”), in an amount at least equal to the initial Allocated Loan Amount of such Property, issued during the six (6) months after the date such Property was added to the Collateral Pool. Each Property insured for the Allocated Loan Amount includes an aggregation endorsement. The Title Policy insures, as of the date of such policy (or any date-down endorsement to such policy, if applicable), that the related Mortgage is a valid first lien on the fee or leasehold interest in such Property subject only to the Permitted Encumbrances (to the extent stated therein); such Title Policy is in full force and effect and names the Indenture Trustee as the mortgagee of record; such Title Policy is assignable to assignees of the insured in accordance with its terms. As of the Series Closing Date or the related date of substitution or acquisition, as applicable, all premiums for the Title Policy have been paid and no material claims have been made thereunder. The Title Policy has been issued by a company licensed to issue such policies in the state in which such Property is located.
(f) The related Properties have adequate rights of access to public ways and are served by adequate water, sewer, sanitary sewer and storm drain facilities. Except as disclosed in surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all public utilities necessary to the continued use and enjoyment of each Property as presently used and enjoyed are located in the public right-of-way abutting such Property or an adjacent mortgaged property, and all such utilities are connected so as to serve such Property, directly from such public right-of-way, through such adjacent mortgaged property or through valid easements insured under the Title Policy. All roads necessary for the current utilization of each Property have been completed and dedicated to public use and accepted by all governmental authorities or are the subject of access easements for the benefit of the applicable Property or an adjacent mortgaged property.
(g) Except as disclosed in the Title Policies, to the knowledge of such Issuer, there are no material pending or proposed special or other assessments for public improvements or otherwise affecting the related Properties, nor, to the knowledge of such Issuer, are there any contemplated improvements to such Properties that may result in such special or other assessments.
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