Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that: (a) Mortgagor has good, marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of this Mortgage delivered as of the date hereof (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “Permitted Encumbrances”), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure; (b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors; (c) All written certificates, written affidavits and written statements made by Mortgagor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading; (d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Mortgagor or any material contract or agreement to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject; (e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed; (f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Documents; (g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended; (h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents; (i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit; (j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101; (k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements; (l) All utility services necessary and sufficient for the use, occupancy and operation of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments. (m) All streets, roads, highways and bridges necessary for access for the current use, occupancy and operation of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor; (n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority; (o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”); (p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments; (q) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty; (r) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Mortgagor’s knowledge and belief, threatened; (s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted; (t) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are in good repair and (ii) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition; (u) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof; (v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect; (w) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes; (x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents; (y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease; (z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect; (aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised; (bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied; (cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors; (dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof; (ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and (ff) As of the date hereof, the sole shareholder of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (Apple Hospitality Two Inc)
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, marketable and indefeasible fee simple title to the Real Mortgaged Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of this Mortgage delivered as of the date hereof (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “"Permitted Encumbrances”"), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Mortgaged Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors;
(c) All written certificates, written affidavits and written statements made by Mortgagor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Mortgagor or any material contract or agreement to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Documents;
(g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(l) All utility services necessary and sufficient for the use, occupancy and operation of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.
(m) All streets, roads, highways and bridges necessary for access for the current use, occupancy and operation of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor;
(n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(q) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(r) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Mortgagor’s knowledge and belief, threatened;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(t) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are in good repair and (ii) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(u) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect;
(w) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents;
(y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and
(ff) As of the date hereof, the sole shareholder of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.
Appears in 1 contract
Samples: Mortgage and Security Agreement (General Host Corp)
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, good and marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth listed as exceptions to title or subordinate matters in the title insurance policy insuring the lien of accepted by Mortgagee in connection with this Mortgage delivered as of the date hereof (the “Title Insurance Policy”)Mortgage, excepting therefrom all preprinted and/or standard exceptions (such items being the “"Permitted Encumbrances”Exceptions"), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber transfer and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted EncumbrancesExceptions. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending pending, or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser endorser, cosigner or cosigner guarantor of the Note or of any portion of the DebtNote, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement any guaranty or indemnity agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtorshereby;
(c) All written reports, certificates, written affidavits affidavits, statements and written statements made other data furnished by or on behalf of Mortgagor or any guarantor or indemnitor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute both) a default) default under the partnership agreement, articles of incorporation, operating agreement incorporation or other organizational documents of Mortgagor or any material contract or agreement of any nature to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to The Real Estate and the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery ofImprovements, and the performance by Mortgagor of its obligations under, the Loan Documents;
(g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises The Real Estate and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises The Real Estate and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;.
(lf) All utility services necessary and sufficient for the full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.;
(mg) All streets, roads, highways highways, bridges and bridges waterways necessary for access for the current to and full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises Real Estate and the Improvements without further condition or cost to Mortgagor;
(nh) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(oi) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor Mortgagor, (orand, if Mortgagor is a partnership or a limited liability companypartnership, any of its general partners or memberspartners) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) materially impair either the Mortgaged Property, (b) the business, prospects, profits, operations Property or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the 's ability of Mortgagor to perform any the covenants or obligations required to be performed under any the Loan Document (collectively, a “Material Adverse Effect”);Documents:
(pj) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;:
(qk) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(rl) As of the date of this Mortgage, no part of the Premises Real Estate or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, or to Mortgagor’s 's knowledge and belief, threatenedthreatened or contemplated;
(sm) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary adequate for the conduct of its business substantially as now conducted;
(tn) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the The Improvements are structurally sound, in good repair and (ii) all free of defects in materials and workmanship and have been constructed and installed in substantial compliance with the plans and specifications relating thereto. All major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(uo) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(vp) Mortgagor and the Property are free from any past due obligations for sales and payroll taxes;
(q) Other than the Prior Mortgage, as defined in Section 4.30 hereof, there are no security agreements or financing statements affecting any of the Property other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the security agreements and financing statements created in favor of Mortgagee;
(r) The Property forms no part of any property owned, used or claimed by Mortgagor as a residence or business homestead and is not exempt from forced sale under the laws of the State in which the Real Estate is located. Mortgagor hereby disclaims and renounces each and every claim to all or any portion of the Property as a homestead;
(s) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s 's knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effectmaterial adverse effect on Mortgagor or the Property;
(wt) Mortgagor and No Contract provides any party with the Mortgaged right to obtain a lien or encumbrance upon the Property are free from any past due obligations for sales and payroll taxes;superior to the lien of this Mortgage; and
(x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents;
(y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(eeu) Mortgagor is not a “"foreign person” " within the meaning of §ss. 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulationsRegulations, including temporary regulations; and
(ffv) As The Mortgagor further represents that no default or event of the date hereof, the sole shareholder default has occurred and is continuing under any Prior Mortgage and that no event has occurred that with notice or passage of the general partner time or managing member both would constitute such a default or event of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretiondefault.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Usa Detergents Inc)
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, good and marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of on Exhibit B attached hereto and by this Mortgage delivered as of the date hereof reference incorporated herein (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “"Permitted Encumbrances”Exceptions"), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber transfer and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend defend, or cause to be warranted and defended, the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend defend, or cause to be warranted and defended, the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted EncumbrancesExceptions. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser direct or indirect principal of Mortgagor or by or against any endorser, cosigner or guarantor of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtorsNote;
(c) All written reports, certificates, written affidavits affidavits, statements and written statements made other data furnished by Mortgagor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor and/or Mortgagor's affiliate that is a party thereto in accordance with the respective terms thereof (subject, as to the enforcement of remedies, to the effect of applicable bankruptcy, reorganization, insolvency and similar laws and to the effect of general principles of equity) and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute both) a default) default under the partnership operating agreement, articles of incorporation, operating agreement incorporation or other organizational documents of Mortgagor or such affiliate or any material contract or agreement of any nature to which Mortgagor or such affiliate is a party or by which Mortgagor or such affiliate or any of its respective property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor or such affiliate is subject;
(e) Neither Mortgagor nor any of its affiliates is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority Governmental Authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has and its affiliates have obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies Governmental Authorities and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-non- governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor and/or such affiliates in connection with the execution and delivery of, and the performance by Mortgagor and such affiliates of its obligations their respective obligations, if any, under, the Loan Documents;
(g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in and the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner managing member of Mortgagor, has have filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereofmanaging member. Mortgagor and its general partners, if any, managing member believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partnersmanaging member, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(jh) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “not an "employee benefit plan”", as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required which is subject to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning Title I of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “"plan assets” " of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(ki) The Premises to the best knowledge of Mortgagor, the Real Estate and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises The Real Estate and Improvements constitute one or more a separate tax parcels parcel for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises The Real Estate and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;.
(lj) All to the best knowledge of Mortgagor, all utility services necessary and sufficient for the full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.;
(mk) All to the best knowledge of Mortgagor, all streets, roads, highways highways, bridges and bridges waterways necessary for access for the current to and full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises Real Estate and the Improvements without further funkier condition or cost to Mortgagor;
(nl) All to the best knowledge of Mortgagor, all curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(om) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners Mortgagor's members or members) affiliates or the Mortgaged Property which, if adversely determined, would have a material adverse effect on materially impair either the Property or Mortgagor's or such member's or affiliate's ability to perform the covenants or obligations required to be performed by Mortgagor or such affiliates under the Loan Documents;
(an) to the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) best knowledge of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(qo) As to the best knowledge of Mortgagor, as of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(rp) As of the date of this Mortgage, no part of the Premises Real Estate or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, or to Mortgagor’s 's knowledge and belief, threatenedthreatened or contemplated;
(sq) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade namestradenames, licenses and permits necessary adequate for the conduct of its business substantially as now conductedconducted at the Property;
(tr) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessmentto the best knowledge of Mortgagor, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are structurally sound, in good repair and (ii) all free of defects in materials and workmanship and have been constructed and installed in substantial compliance with the plans and specifications relating thereto. All major building systems located within the Improvements, including, including without limitation, limitation the heating and air air-conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(us) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect;
(wt) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(xu) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documentssecurity agreements and financing statements created in favor of Mortgagee;
(yv) Mortgagor has delivered to Mortgagee a true, correct and complete copy schedule (the "Rent Roll") of all leases to which Mortgagor is a party affecting the Property, (collectively, "Leases") as of the Percentage date hereof, which accurately and completely sets forth in all material respects for each such Lease, the following: the name of the tenant, the lease expiration date, extension and renewal provisions, the base rent payable, and the security deposit held thereunder;
(w) No Lease or Contract or easement, right-of-way, permit or declaration (collectively all such instruments are referred to hereinafter as "Property Agreements") provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Mortgage, except that the Mortgage is subject and subordinate to the Ground Lease;
(x) Except as previously disclosed to Mortgagee in writing, there are no brokerage fees or commissions payable by Mortgagor with respect to the leasing of space at the Property and there are no management fees payable by Mortgagor with respect to the management of the Property;
(y) All Security Deposits, if any, are held in a segregated account and Mortgagor is in compliance with all legal requirements relating to such Security Deposits;
(z) There are no outstanding options or rights of first refusal to purchase all or any portion of the Property or Mortgagor's ownership thereof except as set forth in the Ground Lease. No condition exists whereby Mortgagor or any future owner of the Property may be required to purchase any other parcel of land which is subject to any Property Agreement or which gives any person or entity a right to purchase, or right of first refusal with respect to, the Property;
(aa) The Percentage Lease constitutes Property is free and clear of any mechanics' liens or liens in the legalnature thereof, valid and binding obligation no rights are outstanding that under law would give rise to any such liens, any of which liens are or may be prior to, or equal with, the lien of this Mortgage, except those which are insured against by the title insurance policy insuring the lien of this Mortgagee;
(bb) To the extent required by Mortgagee, Mortgagor andhas delivered to Mortgagee true, to the best correct and complete copies of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. all Property Agreements;
(cc) No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease any Property Agreement which would, in the aggregate, have a material adverse effect on the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a "Material Adverse Effect");
(aadd) The rents under To the Percentage Lease have not been waivedbest knowledge of Mortgagor, releasedno offset or any right of offset exists respecting continued contributions to be made by any party to any Property Agreement except as expressly set forth therein. Except as previously disclosed to Mortgagee in writing, no material exclusions or otherwise discharged restrictions on the utilization, leasing or compromisedimprovement of the Property (including non-compete agreements) exists in any Property Agreement;
(bbee) All work work, if any, to be performed by Mortgagor under each of the Percentage Lease Property Agreements has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder any party to such Property Agreement have been made made, and all other conditions precedent to each such tenant’s party's obligations thereunder have been satisfied;
(ccff) To the best of Mortgagor’s knowledge The Property is taxed separately without regard to any other real estate and beliefconstitutes a legally subdivided lot under all applicable legal requirements (or, the tenant under the Percentage Lease is free from bankruptcyif not subdivided, reorganization no subdivision or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion platting of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amendedrequired under applicable legal requirements), and the related Treasury Department regulationsfor all purposes may be mortgaged, including temporary regulationsconveyed or otherwise dealt with as an independent parcel; and
(ffgg) As The representations and warranties contained in this Mortgage and the other Loan Documents, or the review and inquiry made on behalf of the date hereofMortgagor therefor, have all been made by persons having the sole shareholder of the general partner requisite expertise and knowledge to provide such representations and warranties. No statement or managing member fact made by or on behalf of Mortgagor is Apple Hospitality Twoin this Mortgage or in the other Loan Documents, Inc.or in any certificate, document or schedule furnished to Mortgagee pursuant hereto or thereto, contains any untrue statement of a Virginia corporation material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading (the “REIT”which may be to Mortgagor's best knowledge where so provided herein or therein). The REIT’s interest in There is no fact presently known to Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights which as not been disclosed to purchase, except as otherwise consented to in writing by Mortgagee, Mortgagee which such consent may be granted or withheld in Mortgagee’s sole discretionwould have a Material Adverse Effect.
Appears in 1 contract
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of on Exhibit B attached hereto and by this Mortgage delivered as of the date hereof reference incorporated herein (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “"Permitted Encumbrances”Exceptions"), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, transfer and encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. None of the Permitted Exceptions materially interferes with the security intended to be provided by this Mortgage, the current primary use of the Property, or the current ability of the Property to generate income sufficient to service the Loan. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted EncumbrancesExceptions. The foregoing warranty of title shall survive 'the foreclosure foreclosure, exercise of any power of sale or other enforcement of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure, exercise of any power of sale or otherwise;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser endorser, cosigner or cosigner guarantor of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtorsNote;
(c) All written reports, certificates, written affidavits affidavits, statements and written statements made other data furnished by Mortgagor to Mortgagee in connection with the loan Loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to bebe taken, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute both) a default) default under the partnership agreement, certificate or articles of incorporation, operating agreement incorporation or other organizational documents of Mortgagor Mortgagor, or any material contract or agreement of any nature to which Mortgagor is a party or by which Mortgagor or any of its property may be bound bound, and do not violate violate, or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Documents;
(g) Mortgagor is not an “"investment company”", or a company “"controlled” " by an “"investment company”", as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(l) All utility services necessary and sufficient for the use, occupancy and operation of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.
(m) All streets, roads, highways and bridges necessary for access for the current use, occupancy and operation of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor;
(n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(q) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(r) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Mortgagor’s knowledge and belief, threatened;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(t) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are in good repair and (ii) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(u) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect;
(w) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents;
(y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and
(ff) As of the date hereof, the sole shareholder of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Acadia Realty Trust)
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, thatthat as of the date hereof:
(a) Mortgagor has good, marketable good and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to title or subordinate matters in the title insurance policy insuring the lien of this Mortgage delivered as of the date hereof (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “Permitted Encumbrances”), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to the Property by foreclosure or ownership of the Mortgaged Property pursuant to any foreclosureotherwise;
(b) No bankruptcy bankruptcy, reorganization or insolvency proceedings are pending or contemplated either by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement any guaranty or indemnity agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the an “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors;
(c) All written reports, certificates, written affidavits affidavits, statements and written statements made other data furnished by or on behalf of Mortgagor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any material fact or circumstance necessary to make the statements contained therein not materially misleadingmisleading as of the date thereof;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and to the best knowledge of Mortgagor do not in any material respect (i) contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will the same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Mortgagor or any material contract or agreement of any nature to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not or (ii) violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened in writing against or affecting Mortgagor (or, if Mortgagor is not a partnership or a limited liability company, any of its general partners or members) or the Property which, if adversely determined, would materially impair either the Property or Mortgagor’s ability to perform the covenants or obligations required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to be performed under the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filedDocuments;
(f) To its knowledge, Mortgagor has obtained or made possesses all franchises, patents, copyrights, trademarks, trade names, licenses and permits (the “Licenses”) necessary (i) consentsfor the conduct of its business substantially as now conducted, approvals all fees due and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor payable in connection with such Licenses have been paid and Mortgagor’s operation of the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan DocumentsPremises complies with such Licenses;
(g) Mortgagor is not an a “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stockforeign person” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1§1445(f)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintainedamended, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISArelated Treasury Department regulations, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101including temporary regulations;
(kh) The To the best knowledge of Mortgagor, the Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, including but not limited to, the Americans with Disabilities Act (the “ADA”) (except to the knowledge of Mortgagorextent any violations are disclosed in the title report), threatened with respect to the zoning of the Premises. To Mortgagor’s knowledgeExecutive Order 13224 dated September 24, 2001, the USA Patriot Act dated October 26, 2001, the Trading with the Enemy Act and any anti-money laundering laws. The Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the The Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(li) All utility services necessary and sufficient for the full use, occupancy occupancy, operation and operation disposition of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.;
(mj) All streets, roads, highways highways, bridges, curb cuts, driveways and bridges traffic signals and waterways necessary for access for the current to and full use, occupancy occupancy, operation and operation disposition of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor;
(nk) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to To the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(ql) As of the date of this Mortgage, except as may be set forth in the Real Engineering Report, the Property is free from unrepaired material damage caused by fire, flood, accident or other casualtycasualty (except as may be disclosed in the Engineering Report); all insurance required by the terms of this Mortgage is in full force and effect and none of the premiums payable therefor have been, nor at any time in the future will be financed;
(rm) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is has Mortgagor received written notice of any such proceeding pending or, to Mortgagor’s knowledge and belief, threatenedthreatened in writing or contemplated;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(tn) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) to the best of Mortgagor’s knowledge, the Improvements are structurally sound, in good repair and (ii) free of defects in materials and workmanship. Except as may otherwise be disclosed in the Engineering Report, all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(uo) To best of Mortgagor’s knowledge, Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(vp) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any all other party parties thereto. No default exists, or to Mortgagor’s knowledge after due inquiry, with the passing of time or the giving of notice or both would exist, under any Contract or Contracts which would, individually or in the aggregate, have a Material Adverse Effectmaterial adverse effect on Mortgagor or the Property;
(wq) No Contract or Lease provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Mortgage;
(r) To the best knowledge of Mortgagor, Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(xs) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof including, without limitation, in the title commitment for the Premises delivered to Mortgagee and (ii) the security agreements and financing statements created in favor of Mortgagee pursuant to the Loan Documents;
(yt) Mortgagor has delivered to Mortgagee a true, correct and complete Rent Roll and true, correct and a complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation Standard Form of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, Leases described in the aggregate, have Rent Roll (as used herein the term “Rent Roll” shall mean a Material Adverse Effect;
(aa) The rents under schedule of all Leases affecting the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except Property as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and
(ff) As of the date hereof, which accurately and completely sets forth in all material respects for each such Lease the sole shareholder name of the general partner or managing member Tenant, the Lease expiration date, the base rent payable, the security deposit held thereunder, and the unit location of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.leased premises;
Appears in 1 contract
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of on Exhibit C attached hereto and by this Mortgage delivered as of the date hereof reference incorporated herein (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “"Permitted Encumbrances”Exceptions"), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, assign and encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted EncumbrancesExceptions. The foregoing warranty of title shall survive the foreclosure or other enforcement of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosureforeclosure or otherwise;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors;
(c) All written reports, certificates, written affidavits affidavits, statements and written statements made other data furnished by Mortgagor to Mortgagee in connection with the loan evidenced by the Note Debentures are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note Mortgage and all of the other Loan Transaction Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute both) a default) default under the partnership agreement, certificate or articles of incorporation, operating agreement incorporation or other organizational documents of Mortgagor or any material contract or agreement of any nature to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note Mortgage or the other Loan Transaction Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Transaction Documents;
(g) Mortgagor is not an “"investment company”", or a company “"controlled” " by an “"investment company”", as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “not an "employee benefit plan”", as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required which is subject to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning Title I of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “"plan assets” " of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(ki) The Premises and Real Estate, the Improvements and the current other Property, and the intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any local, state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises The Real Estate and Improvements constitute one or more a separate tax parcels parcel for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises The Real Estate and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(lj) All utility services necessary and sufficient for the full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate, the Improvements and the Improvements other Property for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements reflected in the title insurance policy insuring the lien of this Mortgage and approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.Mortgagee (the "Title Insurance Policy");
(mk) All streets, roads, highways highways, bridges and bridges waterways necessary for access for the current to and full use, occupancy occupancy, operation and operation disposition of the Premises Real Estate and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises Real Estate and the Improvements without further condition or cost to Mortgagor;
(n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(ol) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or or, to Mortgagor's knowledge, threatened against or affecting Mortgagor (orand, if Mortgagor is a partnership or a limited liability companypartnership, any of its general partners or memberspartners) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) materially impair either the Mortgaged Property, (b) the business, prospects, profits, operations Property or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the 's ability of Mortgagor to perform any the covenants or obligations required to be performed under any Loan Document (collectively, a “Material Adverse Effect”)the Transaction Documents;
(pm) The Mortgaged As of the date of this Mortgage (i) the Property is free from delinquent water charges, vault charges, sewer rents, taxes and assessments;
(q) As of the date of this Mortgage, the Real Property is free and from unrepaired material damage caused by fire, flood, accident or other casualty;
, and (rii) As of the date of this Mortgage, no part of the Premises Real Estate or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, or to Mortgagor’s 's knowledge and belief, threatenedthreatened or contemplated;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(tn) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessmentset forth on Exhibit B, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (no improvements on adjoining properties encroach upon the “Engineering Report”), (i) the Property. The Improvements are structurally sound, in good repair and (ii) all free of defects in materials and workmanship and have been constructed and installed in substantial compliance with the plans and specifications relating thereto. All major building systems located within the Improvements, including, including without limitation, limitation the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(uo) Except as set forth on Exhibit C, there are no security agreements or financing statements affecting any of the Property other than the security agreements and financing statements created in favor of or for the benefit of Mortgagee;
(p) Except for that certain Oil, Gas and Mineral Lease dated July 26, 1996, between Mortgagor and Total Minatome Corporation, there are no leases presently affecting the Property;
(q) The Property is free and clear of any mechanics' or materialmen's liens or liens in the nature thereof, and no rights are outstanding that under law would give rise to any such liens, any of which liens are or may be prior to, or equal with, the lien of this Mortgage;
(r) No lease or Contract or easement, right of way, permit or declaration (collectively, "Property Agreements") provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Mortgage;
(s) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts Property Agreements and all amendments thereto no default exists or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with which the passing of time or the giving of notice or both would exist, exist under any Contract Property Agreement which would, in the aggregate, have a material adverse effect on (a) the Property or (b) the ability of Mortgagor to perform any obligations under any Transaction Document (collectively, a "Material Adverse Effect");
(wt) Mortgagor The Property is taxed separately without regard to any other real estate and constitutes a legally subdivided lot under all applicable legal requirements (or, if not subdivided, no subdivision or platting of the Mortgaged Property are free from any past due obligations is required under applicable legal requirements), and for sales and payroll taxesall purposes may be mortgaged, conveyed, pledged, hypothecated, assigned or otherwise dealt with as an independent parcel;
(xu) There are The Property forms no security agreements part of any property owned, used or financing statements affecting claimed by Mortgagor as a residence or business homestead and is not exempt from forced sale under the laws of the State of Louisiana. Mortgagor hereby disclaims and renounces each and every claim to all or any portion of the Mortgaged Property of Mortgagor as a homestead and the Debentures are issued and transacted solely for business, investment, commercial or other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documentssimilar purposes;
(yv) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there There are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s 's interest therein or ownership thereof;
(eew) There are no actions, suits, proceedings or orders of record or of which Mortgagor is has notice, and, to the best of Mortgagor's knowledge, there are no inquiries or investigations, pending or threatened, in any such case against, involving or affecting the Property, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, alleging the violation of any federal, state or local law, statute, ordinance, rule or regulation relating to Environmental Laws. Furthermore, Mortgagor has not a “foreign person” within received any written claim, notice or opinion that the meaning of §1445(f)(3) ownership or operation of the Internal Revenue Code of 1986Property violates any federal, as amendedstate or local law, and statute, ordinance, rule, regulation, decree, order, and/or permit relating to Environmental Laws, and, to the related Treasury Department regulations, including temporary regulations; and
(ff) As best of the date hereofMortgagor's knowledge, the sole shareholder no valid basis for any proceeding, action or claim of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.nature exists;
Appears in 1 contract
Samples: Mortgage and Security Agreement (American International Petroleum Corp /Nv/)
Warranties of Mortgagor. Mortgagor, for itself Mortgagor warrants and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, thatagrees:
(a) that Mortgagor has good, marketable and indefeasible presently possesses an unencumbered fee simple title to the Real Propertyreal estate described in Exhibit "A" hereto (the "Land"), subject only except for those title objections not removed from Title Policy No. F 38238 issued by First American Title Insurance Company to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy Mortgagee insuring the lien of this Mortgage; that this Mortgage delivered as is a valid and enforceable first lien on the Land, subject only to the aforesaid title objections; and that Mortgagee shall, subject to Mortgagor's right of possession prior to default, quietly enjoy and possess the Mortgaged Property. Mortgagor shall preserve such title and the validity and priority of the date lien hereof (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “Permitted Encumbrances”), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will shall forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all parties and persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure;; and
(b) No bankruptcy or insolvency proceedings that Mortgagor is, and will hereafter be, the sole owner of the landlord's interest in the Leases; and that the Leases are pending or contemplated by Mortgagor or, and will be valid and subsisting leases of the real property demised thereby for the terms therein set forth and subject to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors;provisions set forth therein; and
(c) All written certificatesthat Mortgagor shall make, written affidavits execute, acknowledge and written statements made by Mortgagor deliver in form reasonably satisfactory to Mortgagee all such further or other instruments or assurances as may at any time hereafter be reasonably desired or required by Mortgagee for more fully and effectually granting, assigning, transferring and setting over the Mortgaged Property and Mortgagor's interest in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact Leases hereby mortgaged, or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action intended so to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Mortgagor or any material contract or agreement to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Documents;
(g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used unto Mortgagee for the purpose aforesaid, and Mortgagor will pay all costs of purchasing recording or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of filing any such Plan, if any, intended to be qualified statements or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more documents in such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(l) All utility services necessary and sufficient for the use, occupancy and operation of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessmentsoffices as Mortgagee may reasonably require.
(m) All streets, roads, highways and bridges necessary for access for the current use, occupancy and operation of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor;
(n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(q) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(r) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Mortgagor’s knowledge and belief, threatened;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(t) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are in good repair and (ii) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(u) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect;
(w) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents;
(y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and
(ff) As of the date hereof, the sole shareholder of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Brandywine Realty Trust)
Warranties of Mortgagor. Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Mortgagee, its successors and assigns, that:
(a) Mortgagor has good, marketable and indefeasible fee simple title to the Real Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of this Mortgage delivered as of the date hereof (the “Title Insurance Policy”), excepting therefrom all preprinted and/or standard exceptions (such items being the “Permitted Encumbrances”), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Mortgaged Property in the manner and form hereby done or intended. Mortgagor will preserve its interest in and title to the Real Property and will forever warrant and defend the same to Mortgagee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to or ownership of the Mortgaged Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by Mortgagor or, to the best knowledge of Mortgagor, against Mortgagor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under the Indemnity and Guaranty Agreement and the Environmental Indemnity Agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (the “Indemnitor”). No petition in bankruptcy has been filed against Mortgagor or any general partner, manager, sole member, managing member or majority shareholder of Mortgagor, as applicable (collectively, the “Mortgagor Parties”, each a “Mortgagor Party”), and neither Mortgagor Party or any principal of a Mortgagor Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors;
(c) All written certificates, written affidavits and written statements made by Mortgagor to Mortgagee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not materially misleading;
(d) The execution, delivery and performance of this Mortgage, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Mortgagor in accordance with the respective terms thereof and do not in any material respect contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Mortgagor or any material contract or agreement to which Mortgagor is a party or by which Mortgagor or any of its property may be bound and do not violate or contravene in any material respect any law, order, decree, rule or regulation to which Mortgagor is subject;
(e) Mortgagor is not required to obtain any consent, approval or authorization from or to file any declaration or statement with, any governmental authority or agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed;
(f) Mortgagor has obtained or made all necessary (i) consents, approvals and authorizations and registrations and filings of or with all governmental authorities or agencies and (ii) consents, approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and other non-governmental persons and/or entities, in each case, which are required to be obtained or made by Mortgagor in connection with the execution and delivery of, and the performance by Mortgagor of its obligations under, the Loan Documents;
(g) Mortgagor is not an “investment company”, or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(h) No part of the proceeds of the indebtedness secured hereby will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation T, U or X of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation T, U or X or any other regulations of such Board of Governors, or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan Documents;
(i) Mortgagor and, if Mortgagor is a partnership, any general partner of Mortgagor, has filed all federal, state and local tax returns required to be filed as of the date hereof and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Mortgagor and its general partner, if any as of the date hereof. Mortgagor and its general partners, if any, believe that their respective tax returns properly reflect the income and taxes of Mortgagor and said general partners, if any, for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit;
(j) Mortgagor (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Mortgagor that is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan”, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Mortgagor or by any entity that is under the common control with Mortgagor within the meaning of ERISA Section 4001(a)(14) (collectively, a “Plan”) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Mortgagor do not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101;
(k) The Premises and the Improvements and the current intended use thereof by Mortgagor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. No legal proceedings are pending or, to the knowledge of Mortgagor, threatened with respect to the zoning of the Premises. To Mortgagor’s knowledge, the Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. To the best of Mortgagor’s knowledge, information and belief, the Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;
(l) All utility services necessary and sufficient for the use, occupancy and operation of the Premises and the Improvements for their current intended purposes are available to the Real Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Mortgagee. The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments.
(m) All streets, roads, highways and bridges necessary for access for the current use, occupancy and operation of the Premises and the Improvements have been completed, to the best of Mortgagor’s knowledge, information and belief, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Mortgagor;
(n) All curb cuts, driveways and traffic signals (if any) shown on the survey delivered to Mortgagee prior to the execution and delivery of this Mortgage (the “Survey”) are existing and, to the best of Mortgagor’s knowledge, information and belief, have been fully approved by the appropriate governmental authority;
(o) There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Mortgagor (or, if Mortgagor is a partnership or a limited liability company, any of its general partners or members) or the Mortgaged Property which, if adversely determined, would have a material adverse effect on (a) the Mortgaged Property, (b) the business, prospects, profits, operations or condition (financial or otherwise) of Mortgagor, (c) the enforceability, validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Mortgagor to perform any obligations under any Loan Document (collectively, a “Material Adverse Effect”);
(p) The Mortgaged Property is free from delinquent water charges, sewer rents, taxes and assessments;
(q) As of the date of this Mortgage, the Real Property is free from unrepaired material damage caused by fire, flood, accident or other casualty;
(r) As of the date of this Mortgage, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Mortgagor’s knowledge and belief, threatened;
(s) Mortgagor possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;
(t) Except as may otherwise be disclosed in that certain engineering report entitled Property Condition Assessment, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx, dated August 30, 2004 (the “Engineering Report”), (i) the Improvements are in good repair and (ii) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;
(u) Mortgagor has delivered to Mortgagee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;
(v) Each Contract constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against any other party thereto. No default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a Material Adverse Effect;
(w) Mortgagor and the Mortgaged Property are free from any past due obligations for sales and payroll taxes;
(x) There are no security agreements or financing statements affecting all or any portion of the Mortgaged Property of Mortgagor other than (i) as disclosed in writing by Mortgagor to Mortgagee prior to the date hereof and (ii) the Loan Documents;
(y) Mortgagor has delivered to Mortgagee a true, correct and complete copy of the Percentage Lease;
(z) The Percentage Lease constitutes the legal, valid and binding obligation of Mortgagor and, to the best of Mortgagor’s knowledge and belief, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under the Percentage Lease which would, in the aggregate, have a Material Adverse Effect;
(aa) The rents under the Percentage Lease have not been waived, released, or otherwise discharged or compromised;
(bb) All work to be performed by Mortgagor under the Percentage Lease has been substantially performed, all contributions to be made by Mortgagor to the tenant thereunder have been made and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied;
(cc) To the best of Mortgagor’s knowledge and belief, the tenant under the Percentage Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;
(dd) Except as contained in the Management Agreement, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Mortgaged Property or Mortgagor’s interest therein or ownership thereof;
(ee) Mortgagor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations; and
(ff) As of the date hereof, the sole shareholder of the general partner or managing member of Mortgagor is Apple Hospitality Two, Inc., a Virginia corporation (the “REIT”). The REIT’s interest in Mortgagor is owned by the REIT free and clear of all mortgages, assignments, pledges and security interests and free and clear of all warrants, options and rights to purchase, except as otherwise consented to in writing by Mortgagee, which such consent may be granted or withheld in Mortgagee’s sole discretion.the
Appears in 1 contract
Samples: Mortgage and Security Agreement (Apple Hospitality Two Inc)