Representations and Warranties of ACM. a. ACM hereby represents and warrants to ARLP and ART, as follows: i. ACM is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York; ii. ACM has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement; iii. This Agreement, assuming due authorization, execution and delivery by ARLP and ART, constitutes a valid, legal and binding obligation of ACM, enforceable against ACM in accordance with the terms hereof, subject to (A) applicable bankruptcy insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification for securities laws liabilities; iv. The execution and delivery by ACM of this Agreement and its performance of, and compliance with, the terms of this Agreement will not conflict with or constitute a breach, violation, or default under (A) its certificate of formation or operating agreement, (B) any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local government or regulatory authority, which violation is likely to affect materially and adversely either the ability of ACM to perform its obligations under this Agreement or the financial condition of ACM or (C) any indenture, loan or credit agreement, or any other agreement, contract, instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment, injunction or decree to which ACM is a party or by which any Contributed Asset is bound or affected, except for such conflicts with (1) certain provisions of (a) the operating agreement of ACM, dated as of January 1, 2003, and (b) the operating agreement of the sole managing member of ACM, Arbor Management, LLC, each of which have been validly waived by each of the members thereto, (2) (a) the First Amended and Restated Warehousing Credit, Term Loan and Security Agreement (Structured Facility and Servicing Secured Facility), dated as of April 1, 2003 (the "Warehousing Credit Facility"), by and between [*] and ACM, (b) the Master Repurchase Agreement, dated as of November 18, 2002 (the "[*] Repurchase Agreement"), by and between [*] and ACM, and (c) the Master Repurchase Agreement, dated as of November 1, 2002 (the "[*] Repurchase Agreement"), by and between [*] and ACM, for which each of [*], respectively, have consented to the transactions contemplated by this Agreement and (3) the Recognition Agreement, dated as of November 14, 2001, by and between Fremont Investors and Loan ("Fremont") and ACM, for which Fremont has given its consent with further assurances to the transactions contemplated by this Agreement; the consummation of the transactions contemplated by this Agreement will not result in the cancellation, modification or termination of, or the acceleration of, or the creation of any charges, claims, conditions, security interests, hypothecations, encumbrances, mortgages, liens or pledges (collectively, "Liens") on the Contributed Assets pursuant to any agreement, license, lease understanding, contract, indenture, mortgage, instrument, promise, undertaking or other commitment or obligation ("Contracts") under which ACM or any Contributed Asset subject to or bound, except for (x) the termination of the Liens The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trust, Inc. and has been filed separately with the Securities and Exchange Commission. of [*] pursuant to the Warehousing Credit Facility, the [*] Repurchase Agreement and the [*] Repurchase Agreement, respectively, on the Contributed Assets and (y) the creation of the Liens of [*] on the Contributed Assets by the execution of the (i) Assignment and Assumption Agreement, to be dated as of July 1, 2003, by and between ACM and ARLP with respect to the [*], (ii) Structured Facility Warehousing Credit and Security Agreement, to be dated as of July 1, 2003, by and between [*] and ARLP, and (iii) the Master Repurchase Agreement, to be dated as of July 1, 2003, by and between [*] and ARLP, respectively; v. In selecting the ACM Initial Assets, the ANMB II Membership Interests and the Membership Interests for pledge pursuant hereto, no selection procedure was employed by ACM that was intended to adversely affect the interests of ARLP; vi. Except as disclosed by ACM to ARLP and ART in writing and accepted in writing by ARLP and ART, ACM has not dealt with any person that may be entitled to any commission or compensation in connection with the transfer of the Contributed Assets. ACM or Obligor has paid any and all amounts due to any such person, and ARLP shall have no responsibility for any payments due any such person; vii. There are no Contracts, and ACM will not enter into Contracts, with any other person or entity to sell, transfer, assign or in any manner create a Lien on, the Contributed Assets, except for the right, title, interest, lien and security interest of (A) [*] under the Warehousing Credit Facility, (B) [*] under the [*] Repurchase Agreement, (C) [*] under the [*] Repurchase Agreement, or to not sell, transfer or assign the Contributed Assets to ARLP; viii. No consents, other than those that have been obtained or obtained with further assurances, are required for the transfer of the Contributed Assets in accordance with the terms of this Agreement; and The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trust, Inc. and has been filed separately with the Securities and Exchange Commission. ix. Each Contributed Asset was created in accordance with, and complies with the requirements of, the internal procedures of ACM, including, without limitation, ACM's underwriting policies procedures and standards. b. With respect to the Bridge Loans listed on Schedule A-1 hereto (except for the ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan), the Mezzanine Loans listed on Schedule A-2 hereto, the Albion Loan (as defined on Schedule A-3 hereto) and the Central Jersey Mezzanine Loan, ACM represents and warrants to ART and ARLP that: i. ACM is in possession of a file relating to each of the Initial Assets which contains (1) each of the documents required to evidence ACM's interest in the Initial Asset (including all promissory notes, security agreements, guarantees and other agreements that evidence or secure such Initial Assets) and (2) when applicable, certain other documents relating to the underlying property (the "Initial Asset File"); ii. Immediately prior to the assignment of each Contributed Asset to ARLP, ACM was the sole legal, beneficial and equitable owner of each Contributed Asset, except for the right, title, interest, lien and security interest of (A)[*] under the Warehousing Credit Facility, (B)[*] under the [*] Repurchase Agreement, (C)[*] under the [*] Repurchase Agreement; and ACM transferred each Contributed Asset to ARLP free and clear of any Lien, except for the Liens described in this Section 4(b)(ii); in the event that ARLP's interest in a Bridge Loan is deemed to be a security interest, such security interest is valid, perfected and of first priority; in the event that ARLP's interest in a Mezzanine Loan is deemed to be a security interest, such security interest is valid, perfected and is a first priority lien on the pledged ownership interest related to the Mezzanine Loan; iii. Neither the notes relating to the Initial Assets (the "Initial Asset Notes") nor the Initial Assets are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any term of the Initial Asset Notes or the Initial Assets, nor the exercise of any right thereunder, render the Initial Asset Notes or Initial Assets unenforceable, in whole or in part, except to the extent enforcement may be limited by (A) applicable bankruptcy, insolvency, and other similar laws affecting creditor's rights generally, or (B) general equitable principals, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law, or subject to any right of rescission, set-off, counterclaim or The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trust, Inc. and has been filed separately with the Securities and Exchange Commission. defense, including the defense of usury and no such right of rescission, set-off, counterclaim or defense has been asserted; iv. Up to and including the Closing, all payments required to be made with respect to an Initial Asset under the terms of the related Initial Asset Note have been made before the end of any grace or cure period for such payment. ACM has not advanced funds, or induced, solicited or received any advance of funds from a party other than the obligor on the related Initial Asset Note (the "Obligor"), directly or indirectly, for the payment of any amount required by the Initial Asset Note. There has been no delinquency beyond the end of any applicable period of grace in any payment by the Obligor under the terms of any Initial Asset Note; v. The Initial Asset Note relating to each Initial Asset has been endorsed to ARLP in a form and in a manner sufficient to convey to ARLP all right, title and interest therein of ACM in all relevant jurisdictions, except to the extent that a recording or other filing is required to transfer such Initial Asset; vi. To the best of ACM's knowledge, based upon an opinion of Obligor's counsel, each Initial Asset at origination did not violate any applicable federal, state or local law; vii. With respect to each Initial Asset that relates to a property that is secured by a mortgage in favor of ACM (each a "Mortgaged Property"), a title insurance policy insuring the lien created by such mortgage was effective on the date of ACM's financing of such Initial Asset, such policy is valid and remains in full force and effect, and, to the best of ACM's knowledge each such policy was issued by a title insurer qualified to do business in the jurisdiction where the applicable Mortgaged Property is located, which policy insures either ACM or the original holder of the Initial Asset as to the Lien of the Initial Asset; no claims have been made under such title insurance policy and no prior holder of the applicable Initial Asset, including ACM, has done, by act or omission, anything that would impair the coverage of such title insurance policy; viii. To the best of ACM's knowledge based upon its review of the related title insurance policy, each mortgage related to a Mortgaged Property (A) is properly recorded (or, if the mortgage related to such Mortgaged Property was created within 30 days prior to the date of this Agreement and is not yet recorded, the mortgage relating to such Mortgaged Property has been submitted for recording, is in form and substance acceptable for recording and, when properly recorded, will be sufficient under the laws of the jurisdiction wherein the Mortgaged Property is located to reflect record of the Lien of such Mortgaged Property) and the mortgage relating to the Mortgaged Property is a valid, continuing and enforceable lien (subject only to the matters described in the next sentence) on the Mortgaged Property, including all improvements on the Mortgaged Property owned by the Obligor, all other fixtures on the Mortgaged Property owned by the Obligor and all additions, alterations and replacements made at any time with respect to the foregoing, and (B) provides for an assignment of leases and rents from the Mortgaged Property, or, if the related Initial Asset does not so provide, a separate assignment of mortgage was executed by the Obligor, was properly recorded (or, if such mortgage was created within 30 days prior to the date this Agreement and is not yet recorded, such mortgage has been submitted for recording, is in form and substance acceptable for recording and, when properly recorded, will be sufficient under the laws of the jurisdiction wherein the Mortgaged Property is located to reflect record of the Lien of such assignment) and creates a valid, existing and enforceable lien and security interest on the leases and rents from the related Mortgaged Property and other property described therein. The Lien on each Mortgaged Property is subject only to (1) the Lien of current real property taxes not yet due and payable, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording that are acceptable to mortgage lending institutions generally, are specifically referred to in lender's title insurance policy delivered to ACM and are taken into account in determining, or do not materially adversely affect, the appraisal value of the Mortgaged Property, and (3) other matters to which like properties are commonly subject that do not materially interfere with the benefits of the security intended to be provided by such Initial Asset or the use, enjoyment, value or marketability of the related Mortgaged Property; ix. In the case of a Mortgaged Property, the security agreement, chattel mortgage or equivalent document delivered in connection with the Mortgaged Property establishes and creates a valid, continuing and enforceable Lien and security interest in all furniture, fixtures and equipment on or used in connection with the related Mortgaged Property and other property described therein. Either a Uniform Commercial Code financing statement has been filed and/or recorded in all places necessary to perfect a valid security interest in the personal property subject to the Lien of the Mortgaged Property or any separate security agreement, chattel mortgage or equivalent document or, in the case of a Mortgaged Property created within 30 days prior to the date of this Agreement, ACM has a right to file a Uniform Commercial Code financing statement with respect to the personal property subject to the Lien of such Mortgaged Property or any separate security agreement, chattel mortgage or equivalent document and upon such recordation and/or filing thereof in all necessary places, ACM will have a perfected and valid security interest in such personal property; x. There are no delinquent taxes or assessment liens against any Mortgaged Property; xi. There are no mechanics' liens or initiation of a mechanics' lien affecting any Mortgaged Property, except those (A) that are insured against by a title insurance policy, (B) that are subordinate to the Lien of the related Initial Asset, if applicable or (C) the payments required for such work, labor or materials are not yet due and payable, or if due and payable and unpaid are the subject of a good faith contest; xii. To the best of ACM's knowledge based on the appraisal or engineering report produced at the origination of the Initial Asset, except to the extent that it was contemplated at the time of the origination of the Initial Asset that repairs, restorations and improvements would be made to the underlying property, each related property is in good repair and free of structural defects, damage, waste and defects in any mechanical, electrical, plumbing and safety systems therein that would materially and adversely affect the value of such related property, and there is no proceeding pending for the total or partial condemnation thereof. Except to the extent that it was contemplated at the time of the origination of the Initial Asset that repairs, renovations and improvements would be made to the building system and the related property, as applicable all building systems are in good working order subject to ordinary wear and tear. ACM inspected the related property in connection with the origination of the related to the Initial Assets; xiii. There is no material default, breach, violation or event of acceleration exi
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Representations and Warranties of ACM. a. ACM hereby represents and warrants to ARLP and ART, as follows:
i. ACM is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York;
ii. ACM has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
iii. This Agreement, assuming due authorization, execution and delivery by ARLP and ART, constitutes a valid, legal and binding obligation of ACM, enforceable against ACM in accordance with the terms hereof, subject to (A) applicable bankruptcy insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification for securities laws liabilities;
iv. The execution and delivery by ACM of this Agreement and its performance of, and compliance with, the terms of this Agreement will not conflict with or constitute a breach, violation, or default under (A) its certificate of formation or operating agreement, (B) any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local government or regulatory authority, which violation is likely to affect materially and adversely either the ability of ACM to perform its obligations under this Agreement or the financial condition of ACM or (C) any indenture, loan or credit agreement, or any other agreement, contract, instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment, injunction or decree to which ACM is a party or by which any Contributed Asset is bound or affected, except for such conflicts with (1) certain provisions of (a) the operating agreement of ACM, dated as of January 1, 2003, and (b) the operating agreement of the sole managing member of ACM, Arbor Management, LLC, each of which have been validly waived by each of the members thereto, (2)
(a) the First Amended and Restated Warehousing Credit, Term Loan and Security Agreement (Structured Facility and Servicing Secured Facility), dated as of April 1, 2003 (the "Warehousing Credit Facility"), by and between [*] Residential Funding Corporation ("RFC") and ACM, (b) the Master Repurchase Agreement, dated as of November 18, 2002 (the "[*] Nomura Repurchase Agreement"), by and between [*] Nomura Credit and Capital, Inc. ("Nomura") and ACM, and (c) the Master Repurchase Agreement, dated as of November 1, 2002 (the "[*] Bear ▇▇▇▇▇▇▇ Repurchase Agreement"), by and between [*] Bear ▇▇▇▇▇▇▇ Funding Inc. ("Bear ▇▇▇▇▇▇▇") and ACM, for which each of [*]RFC, Nomura and Bear ▇▇▇▇▇▇▇, respectively, have consented to the transactions contemplated by this Agreement and (3) the Recognition Agreement, dated as of November 14, 2001, by and between Fremont Investors and Loan ("Fremont") and ACM, for which Fremont has given its consent with further assurances to the transactions contemplated by this Agreement; the Agreement;the consummation of the transactions contemplated by this Agreement will not result in the cancellation, modification or termination of, or the acceleration of, or the creation of any charges, claims, conditions, security interests, hypothecations, encumbrances, mortgages, liens or pledges (collectively, "Liens") on the Contributed Assets pursuant to any agreement, license, lease understanding, contract, indenture, mortgage, instrument, promise, undertaking or other commitment or obligation ("Contracts") under which ACM or any Contributed Asset subject to or bound, except for (x) the termination of the Liens The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trustof RFC, Inc. Nomura and has been filed separately with the Securities and Exchange Commission. of [*] Bear ▇▇▇▇▇▇▇ pursuant to the Warehousing Credit Facility, the [*] Nomura Repurchase Agreement and the [*] Bear ▇▇▇▇▇▇▇ Repurchase Agreement, respectively, on the Contributed Assets and (y) the creation of the Liens of [*] RFC, Nomura and Bear ▇▇▇▇▇▇▇ on the Contributed Assets by the execution of the (i) Assignment and Assumption Agreement, to be dated as of July 1, 2003, by and between ACM and ARLP with respect to the [*]Nomura Repurchase Agreement, (ii) Structured Facility Warehousing Credit and Security Agreement, to be dated as of July 1, 2003, by and between [*] RFC and ARLP, and (iii) the Master Repurchase Agreement, to be dated as of July 1, 2003, by and between [*] Bear ▇▇▇▇▇▇▇ and ARLP, respectively;
v. In selecting the ACM Initial Assets, the ANMB II Membership Interests and the Membership Interests for pledge pursuant hereto, no selection procedure was employed by ACM that was intended to adversely affect the interests of ARLP;
vi. Except as disclosed by ACM to ARLP and ART in writing and accepted in writing by ARLP and ART, ACM has not dealt with any person that may be entitled to any commission or compensation in connection with the transfer of the Contributed Assets. ACM or Obligor has paid any and all amounts due to any such person, and ARLP shall have no responsibility for any payments due any such person;
vii. There are no Contracts, and ACM will not enter into Contracts, with any other person or entity to sell, transfer, assign or in any manner create a Lien on, the Contributed Assets, except for the right, title, interest, lien and security interest of (A) [*] RFC under the Warehousing Credit Facility, (B) [*] Nomura under the [*] Nomura Repurchase Agreement, (C) [*] Bear ▇▇▇▇▇▇▇ under the [*] Bear ▇▇▇▇▇▇▇ Repurchase Agreement, or to not sell, transfer or assign the Contributed Assets to ARLP;
viii. No consents, other than those that have been obtained or obtained with further assurances, are required for the transfer of the Contributed Assets in accordance with the terms of this Agreement; and The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trust, Inc. and has been filed separately with the Securities and Exchange Commission.and
ix. Each Contributed Asset was created in accordance with, and complies with the requirements of, the internal procedures of ACM, including, without limitation, ACM's underwriting policies procedures and standards.
b. With respect to the Bridge Loans listed on Schedule A-1 hereto (except for the ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan), the Mezzanine Loans listed on Schedule A-2 hereto, the Albion Loan (as defined on Schedule A-3 hereto) and the Central Jersey Mezzanine Loan, ACM represents and warrants to ART and ARLP that:
i. ACM is in possession of a file relating to each of the Initial Assets which contains (1) each of the documents required to evidence ACM's interest in the Initial Asset (including all promissory notes, security agreements, guarantees and other agreements that evidence or secure such Initial Assets) and (2) when applicable, certain other documents relating to the underlying property (the "Initial Asset File");
ii. Immediately prior to the assignment of each Contributed Asset to ARLP, ACM was the sole legal, beneficial and equitable owner of each Contributed Asset, except for the right, title, interest, lien and security interest of (A)[*] ) RFC under the Warehousing Credit Facility, (B)[*] ) Nomura under the [*] Nomura Repurchase Agreement, (C)[*] ) Bear ▇▇▇▇▇▇▇ under the [*] Bear ▇▇▇▇▇▇▇ Repurchase Agreement; and ACM transferred each Contributed Asset to ARLP free and clear of any Lien, except for the Liens described in this Section 4(b)(ii); in the event that ARLP's interest in a Bridge Loan is deemed to be a security interest, such security interest is valid, perfected and of first priority; in the event that ARLP's interest in a Mezzanine Loan is deemed to be a security interest, such security interest is valid, perfected and is a first priority lien on the pledged ownership interest related to the Mezzanine Loan;
iii. Neither the notes relating to the Initial Assets (the "Initial Asset Notes") nor the Initial Assets are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any term of the Initial Asset Notes or the Initial Assets, nor the exercise of any right thereunder, render the Initial Asset Notes or Initial Assets unenforceable, in whole or in part, except to the extent enforcement may be limited by (A) applicable bankruptcy, insolvency, and other similar laws affecting creditor's rights generally, or (B) general equitable principals, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law, or subject to any right of rescission, set-off, counterclaim or The material marked [*] has been omitted pursuant to a request for confidential treatment by Arbor Realty Trust, Inc. and has been filed separately with the Securities and Exchange Commission. defense, including the defense of usury and no such right of rescission, set-off, counterclaim or defense has been asserted;
iv. Up to and including the Closing, all payments required to be made with respect to an Initial Asset under the terms of the related Initial Asset Note have been made before the end of any grace or cure period for such payment. ACM has not advanced funds, or induced, solicited or received any advance of funds from a party other than the obligor on the related Initial Asset Note (the "Obligor"), directly or indirectly, for the payment of any amount required by the Initial Asset Note. There has been no delinquency beyond the end of any applicable period of grace in any payment by the Obligor under the terms of any Initial Asset Note;
v. The Initial Asset Note relating to each Initial Asset has been endorsed to ARLP in a form and in a manner sufficient to convey to ARLP all right, title and interest therein of ACM in all relevant jurisdictions, except to the extent that a recording or other filing is required to transfer such Initial Asset;
vi. To the best of ACM's knowledge, based upon an opinion of Obligor's counsel, each Initial Asset at origination did not violate any applicable federal, state or local law;
vii. With respect to each Initial Asset that relates to a property that is secured by a mortgage in favor of ACM (each a "Mortgaged Property"), a title insurance policy insuring the lien created by such mortgage was effective on the date of ACM's financing of such Initial Asset, such policy is valid and remains in full force and effect, and, to the best of ACM's knowledge each such policy was issued by a title insurer qualified to do business in the jurisdiction where the applicable Mortgaged Property is located, which policy insures either ACM or the original holder of the Initial Asset as to the Lien of the Initial Asset; no claims have been made under such title insurance policy and no prior holder of the applicable Initial Asset, including ACM, has done, by act or omission, anything that would impair the coverage of such title insurance policy;
viii. To the best of ACM's knowledge based upon its review of the related title insurance policy, each mortgage related to a Mortgaged Property (A) is properly recorded (or, if the mortgage related to such Mortgaged Property was created within 30 days prior to the date of this Agreement and is not yet recorded, the mortgage relating to such Mortgaged Property has been submitted for recording, is in form and substance acceptable for recording and, when properly recorded, will be sufficient under the laws of the jurisdiction wherein the Mortgaged Property is located to reflect record of the Lien of such Mortgaged Property) and the mortgage relating to the Mortgaged Property is a valid, continuing and enforceable lien (subject only to the matters described in the next sentence) on the Mortgaged Property, including all improvements on the Mortgaged Property owned by the Obligor, all other fixtures on the Mortgaged Property owned by the Obligor and all additions, alterations and replacements made at any time with respect to the foregoing, and (B) provides for an assignment of leases and rents from the Mortgaged Property, or, if the related Initial Asset does not so provide, a separate assignment of mortgage was executed by the Obligor, was properly recorded (or, if such mortgage was created within 30 days prior to the date this Agreement and is not yet recorded, such mortgage has been submitted for recording, is in form and substance acceptable for recording and, when properly recorded, will be sufficient under the laws of the jurisdiction wherein the Mortgaged Property is located to reflect record of the Lien of such assignment) and creates a valid, existing and enforceable lien and security interest on the leases and rents from the related Mortgaged Property and other property described therein. The Lien on each Mortgaged Property is subject only to (1) the Lien of current real property taxes not yet due and payable, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording that are acceptable to mortgage lending institutions generally, are specifically referred to in lender's title insurance policy delivered to ACM and are taken into account in determining, or do not materially adversely affect, the appraisal value of the Mortgaged Property, and (3) other matters to which like properties are commonly subject that do not materially interfere with the benefits of the security intended to be provided by such Initial Asset or the use, enjoyment, value or marketability of the related Mortgaged Property;
ix. In the case of a Mortgaged Property, the security agreement, chattel mortgage or equivalent document delivered in connection with the Mortgaged Property establishes and creates a valid, continuing and enforceable Lien and security interest in all furniture, fixtures and equipment on or used in connection with the related Mortgaged Property and other property described therein. Either a Uniform Commercial Code financing statement has been filed and/or recorded in all places necessary to perfect a valid security interest in the personal property subject to the Lien of the Mortgaged Property or any separate security agreement, chattel mortgage or equivalent document or, in the case of a Mortgaged Property created within 30 days prior to the date of this Agreement, ACM has a right to file a Uniform Commercial Code financing statement with respect to the personal property subject to the Lien of such Mortgaged Property or any separate security agreement, chattel mortgage or equivalent document and upon such recordation and/or filing thereof in all necessary places, ACM will have a perfected and valid security interest in such personal property;
x. There are no delinquent taxes or assessment liens against any Mortgaged Property;
xi. There are no mechanics' liens or initiation of a mechanics' lien affecting any Mortgaged Property, except those (A) that are insured against by a title insurance policy, (B) that are subordinate to the Lien of the related Initial Asset, if applicable or (C) the payments required for such work, labor or materials are not yet due and payable, or if due and payable and unpaid are the subject of a good faith contest;
xii. To the best of ACM's knowledge based on the appraisal or engineering report produced at the origination of the Initial Asset, except to the extent that it was contemplated at the time of the origination of the Initial Asset that repairs, restorations and improvements would be made to the underlying property, each related property is in good repair and free of structural defects, damage, waste and defects in any mechanical, electrical, plumbing and safety systems therein that would materially and adversely affect the value of such related property, and there is no proceeding pending for the total or partial condemnation thereof. Except to the extent that it was contemplated at the time of the origination of the Initial Asset that repairs, renovations and improvements would be made to the building system and the related property, as applicable all building systems are in good working order subject to ordinary wear and tear. ACM inspected the related property in connection with the origination of the related to the Initial Assets;
xiii. There is no material default, breach, violation or event of acceleration exiexisting under the Initial Asset or the Initial Asset Note and no event that, with the passage of time, or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration thereunder;
xiv. Each Initial Asset and
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