Common use of DEBTOR'S WARRANTIES Clause in Contracts

DEBTOR'S WARRANTIES. The Debtor warrants and represents to the Secured Party as follows: 1. The Debtor is a party to each of the Contracts and is the absolute and sole owner of the interest in and to the Collateral subject to this Security Agreement and Permitted Liens (as defined in the Loan Agreement executed concurrently herewith), and, subject to the terms thereof, with full right and title to assign the same to the Secured Party and to grant the Secured Party a security interest in the same and the sums due or to become due thereunder; the Debtor has to date fully and faithfully performed and observed all of the terms, obligations, covenants, conditions and warranties to be performed and observed by the Debtor thereunder and no event has occurred and is continuing which constitutes, or with notice or the passage of time would constitute, a default thereunder; the Contracts are genuine, valid, subsisting and enforceable upon all parties thereto according to their terms; the Debtor has not alienated, assigned, pledged, transferred, mortgaged or otherwise encumbered any of the rights or interests of the Debtor in the Collateral, including the sums due or to become due thereunder, except for Permitted Liens; there have been no amendments or modifications to any of the Contracts; no financing statement or any other lien or encumbrance covering any of the Collateral is on file in the Bureau of Conveyances of the State of Hawaii, or is otherwise outstanding, except for Permitted Liens; the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; no payments of any kind required thereunder have been anticipated, discounted, waived, released or set-off; no parties thereto have been discharged, excused or released; no claims under the Contracts have been compromised; the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; all payments thereunder are current; and nothing in any of the Contracts would prevent the Secured Party from enforcing any of the rights and remedies that the Debtor might have if this Security Agreement had not been executed. 2. The Debtor is the lawful owner or lessee of the Personal Property and has the right to the use and possession of the Personal Property and has good right to grant or convey the same as security under this Security Agreement; the Personal Property is free and clear of any lien or right prior to or on a parity with the lien of this Security Agreement, except as noted above; the Debtor will, on behalf of the Secured Party, defend forever against any claims or demands thereon made by all persons; and there exist no offsets, counterclaims or defenses to the Debtor's rights therein or thereto. 3. The Debtor's exact and correct legal name is as set forth in the first paragraph of this Security Agreement. The Debtor is registered and in good standing in the State of Hawaii.

DEBTOR'S WARRANTIES. The Debtor warrants and represents to the Secured Party as follows: 1. The Debtor is a party to each of the Contracts and is the absolute and sole owner of the interest in and to the Collateral subject to this Security Agreement and Permitted Liens (as defined in the Term Loan Agreement executed concurrently herewith), and, subject to the terms thereof, with full right and title to assign the same to the Secured Party and to grant the Secured Party a security interest in the same and the sums due or to become due thereunder; the Debtor has to date fully and faithfully performed and observed all of the terms, obligations, covenants, conditions and warranties to be performed and observed by the Debtor thereunder and no event has occurred and is continuing which constitutes, or with notice or the passage of time would constitute, a default thereunder; the Contracts are genuine, valid, subsisting and enforceable upon all parties thereto according to their terms; the Debtor has not alienated, assigned, pledged, transferred, mortgaged or otherwise encumbered any of the rights or interests of the Debtor in the Collateral, including the sums due or to become due thereunder, except for Permitted Liens; there have been no amendments or modifications to any of the Contracts; no financing statement or any other lien or encumbrance covering any of the Collateral is on file in the Bureau of Conveyances of the State of Hawaii, or is otherwise outstanding, except for Permitted Liens; the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; no payments of any kind required thereunder have been anticipated, discounted, waived, released or set-off; no parties thereto have been discharged, excused or released; no claims under the Contracts have been compromised; the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; all payments thereunder are current; and nothing in any of the Contracts would prevent the Secured Party from enforcing any of the rights and remedies that the Debtor might have if this Security Agreement had not been executed. 2. The Debtor is the lawful owner or lessee of the Personal Property and has the right to the use and possession of the Personal Property and has good right to grant or convey the same as security under this Security Agreement; the Personal Property is free and clear of any lien or right prior to or on a parity with the lien of this Security Agreement, except as noted above; the Debtor will, on behalf of the Secured Party, defend forever against any claims or demands thereon made by all persons; and there exist no offsets, counterclaims or defenses to the Debtor's ’s rights therein or thereto. 3. The Debtor's ’s exact and correct legal name is as set forth in the first paragraph of this Security Agreement. The Debtor is registered and in good standing in the State of Hawaii.

DEBTOR'S WARRANTIES. The Debtor warrants and represents to the Secured Party as follows: 1. The Debtor is a party to each of the Contracts and is the absolute and sole owner of the interest in and to the Collateral Contracts subject to this Security Agreement and Permitted Liens (as defined in the Loan Agreement executed concurrently herewith), and, subject to the terms thereofAgreement, with full right and title to assign the same to the Secured Party and to grant the Secured Party a security interest in the same and the sums due or to become due thereunder; the Debtor has to date fully and faithfully observed and performed and observed all of the terms, obligations, covenants, conditions conditions, and warranties to be observed and performed and observed by the Debtor thereunder thereunder, and no event has occurred and is continuing which constitutes, or with notice or the passage of time would constitute, a default thereunder; the Contracts are genuine, valid, subsisting and enforceable upon all parties thereto according to their terms; the Debtor has not alienated, assigned, pledged, transferred, mortgaged or otherwise encumbered any of the rights or interests of the Debtor in the Collateraltherein or thereto, including the sums due or to become due thereunder, except for Permitted Liens; there have been no amendments or modifications such pledge and assignment to any of the ContractsBank One; no financing statement or any other lien or encumbrance covering any of the Collateral is on file in the Bureau of Conveyances of any recordation office in the State of HawaiiColorado, or is otherwise outstanding, except for Permitted Liensrelating to equipment leases and liens and encumbrances in favor of Bank One; the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; no payments of any kind required thereunder have been anticipated, discounted, waived, released released, or set-off; no parties thereto have been discharged, excused excused, or released; no claims under the Contracts have been compromised; the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; all payments thereunder are current; and nothing in any of the Contracts would prevent the Secured Party from enforcing any of the rights and remedies that the Debtor might have if this Security Agreement had not been executed. 2. The Debtor is the lawful owner or lessee of the Personal Property Collateral and has the right to the use and possession of the Personal Property Collateral and has good right to grant or convey the same as security under this Security Agreement; the Personal Property Collateral is free and clear of any lien or right prior to or on a parity with the lien of this Security Agreement, except as noted above; the Debtor will, on behalf of the Secured Party, defend forever against any claims or demands thereon made by all persons; and there exist no offsets, counterclaims or defenses to the Debtor's rights therein or thereto. 3. Melody Homes, Inc., is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, and Melody Mortgage Co., is a corporation duly organized and validly existing and in good standing under the laws of the State of Colorado, and each has all requisite corporate power and authority to carry on the business and own the property that it now carries on and owns. 4. The Debtor's exact Debtor has all requisite power and correct legal name is as set forth in authority to execute this Security Agreement, to secure the first paragraph payment of up to $14,000,000.00 under the Note by the execution of this Security Agreement and to carry out the provisions of this Security Agreement. The execution and delivery of this Security Agreement have been duly authorized by the Board of Directors of the Debtor and, to the extent required by law, by the stockholders of the Debtor, and no other corporate action of the Debtor is registered requisite to the execution and delivery of this Security Agreement. 5. All tax returns and reports of the Debtor required by law to be filed have been duly filed, and all taxes, assessments, contributions, fees and other governmental charges (other than those currently payable without penalty or interest and those currently being contested in good standing faith) upon the Debtor or upon the Debtor's properties, assets or income which are due and payable have been paid. 6. There are no actions, suits or proceedings pending or, to the knowledge of the Debtor, threatened against or affecting the Debtor or the Collateral in any court at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality, an adverse decision in which might materially affect the Debtor's ability to perform the Debtor's obligations under this Security Agreement. 7. The Debtor is not in violation of or in default with respect to any provision of its articles of incorporation or bylaws or any mortgage, indenture, contract, agreement or instrument applicable to the Debtor, or by which the Debtor is bound, and the execution, delivery, performance of and compliance with this Security Agreement will not result in any such violation or be in conflict with or constitute a default under any such provision, or result in the State creation of Hawaiiany mortgage, lien, security interest or charge on any of the properties or assets of the Debtor not contemplated by this Security Agreement; and there is no provision of its articles of incorporation or bylaws or any mortgage, indenture, contract, agreement or instrument applicable to the Debtor or by which the Debtor is bound which materially adversely affects, or in the future (so far as the Debtor can now foresee) will materially adversely affect, the business or prospects or condition (financial or other) of the Debtor or of any of its properties or assets. 8. Any financial statements heretofore delivered to the Secured Party by the Borrower or the Debtor are true and correct in all respects, have been prepared in accordance with generally accepted accounting principles, and fairly represent the respective financial conditions of the subjects thereof as of the respective dates thereof; no materially adverse change has occurred in the financial conditions reflected therein since the respective dates thereof; and no additional borrowings have been made by the Borrower or the Debtor since the date thereof.

DEBTOR'S WARRANTIES. The Debtor warrants and represents to the Secured Party as follows: 1. The Debtor is a party to each of the Contracts and is the absolute and sole owner of the interest in and to the Collateral Contracts subject to this Security Agreement and Permitted Liens (as defined in the Loan Agreement executed concurrently herewith)Agreement, and, subject to the terms thereof, with full right and title to assign the same to the Secured Party and to grant the Secured Party a security interest in the same and the sums due or to become due thereunder; the Debtor has to date fully and faithfully performed and observed all of the terms, obligations, covenants, conditions and warranties to be performed and observed by the Debtor thereunder and no event has occurred and is continuing which constitutes, or with notice or the passage of time would constitute, a default thereunder; the Contracts are genuine, valid, subsisting and enforceable upon all parties thereto according to their terms; the Debtor has not alienated, assigned, pledged, transferred, mortgaged or otherwise encumbered any of the rights or interests of the Debtor in the Collateraltherein or thereto, including the sums due or to become due thereunder, except for Permitted Liens; there have been no amendments or modifications to any of the Contracts; no financing statement or any other lien or encumbrance covering any of the Collateral is on file in the Bureau of Conveyances of the State of Hawaii, or is otherwise outstanding, except for Permitted Liens; the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; no payments of any kind required thereunder have been anticipated, discounted, waived, released or set-off; no parties thereto have been discharged, excused or released; no claims under the Contracts have been compromised; the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; all payments thereunder are current; and nothing in any of the Contracts would prevent the Secured Party from enforcing any of the rights and remedies that the Debtor might have if this Security Agreement had not been executed. 2. The Debtor is the lawful owner or lessee of the Personal Property and has the right to the use and possession of the Personal Property and has good right to grant or convey the same as security under this Security Agreement; the Personal Property is free and clear of any lien or right prior to or on a parity with the lien of this Security Agreement, except as noted above; the Debtor will, on behalf of the Secured Party, defend forever against any claims or demands thereon made by all persons; and there exist no offsets, counterclaims or defenses to the Debtor's ’s rights therein or thereto. 3. The Debtor's ’s exact and correct legal name is as set forth in the first paragraph of this Security Agreement. The Debtor is registered and in good standing in the State of Delaware and the State of Hawaii.

DEBTOR'S WARRANTIES. The Debtor warrants and represents to the Secured Party as follows: 1. The Debtor is a party to each of the Contracts and is the absolute and sole owner of the interest in and to the Collateral Contracts subject to this Security Agreement and Permitted Liens (as defined in the Loan Agreement executed concurrently herewith), and, subject to the terms thereofAgreement, with full right and title to assign the same to the Secured Party and to grant the Secured Party a security interest in the same and the sums due or to become due thereunder; the Debtor has to date fully and faithfully observed and performed and observed all of the terms, obligations, covenants, conditions conditions, and warranties to be observed and performed and observed by the Debtor thereunder thereunder, and no event has occurred and is continuing which constitutes, or with notice or the passage of time would constitute, a default thereunder; the Contracts are genuine, valid, subsisting and enforceable upon all parties thereto according to their terms; the Debtor has not alienated, assigned, pledged, transferred, mortgaged or otherwise encumbered any of the rights or interests of the Debtor in the Collateraltherein or thereto, including the sums due or to become due thereunder, except for Permitted Liens; there have been no amendments or modifications to any of the Contracts; no financing statement or any other lien or encumbrance covering any of the Collateral is on file 5 in the Bureau of Conveyances of the State of Hawaii, or is otherwise outstanding, except for Permitted Liensoutstanding (other than in favor of Secured Party); the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; no payments of any kind required thereunder have been anticipated, discounted, waived, released or set-off; no parties thereto have been discharged, excused or released; no claims under the Contracts have been compromised; the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; all payments thereunder are current; and nothing in any of the Contracts would prevent the Secured Party from enforcing any of the rights and remedies that the Debtor might have if this Security Agreement had not been executed; and, other than in the ordinary course of business, (i) the other parties to the Contracts have no offsets, counterclaims or defenses against the Debtor, whether arising out of the Contracts or otherwise; (ii) no payments of any kind required thereunder have been anticipated, discounted, waived, released, or set-off; (iii) no parties thereto have been discharged, excused, or released; (iv) no claims under the Contracts have been compromised; (v) the Debtor has not accepted any payments under any of the Contracts, except as permitted by the terms thereof; and (vi) all payments thereunder are current. 2. The Debtor is the lawful owner or lessee of the Personal Property Collateral and has the right to the use and possession of the Personal Property Collateral and has good right to grant or convey the same as security under this Security Agreement; the Personal Property Collateral is free and clear of any lien or right prior to or on a parity with the lien of this Security Agreement, except as noted above; the Debtor will, on behalf of the Secured Party, defend forever against any claims or demands thereon made by all persons; and there exist no offsets, counterclaims or defenses to the Debtor's rights therein or thereto. 3. The Debtor's exact and correct legal name is as set forth in the first paragraph of this Security Agreement. The Debtor is registered a corporation duly organized and validly existing and in good standing under the laws of the State of Nevada, is authorized to do business and is in good standing in the State of Hawaii, and has all requisite corporate power and authority to carry on the business and own the property that it now carries on and owns. 4. The Debtor have all requisite power and authority to execute this Security Agreement, to secure the payment of the Note by the execution of this Security Agreement and to carry out the provisions of this Security Agreement. The execution and delivery of this Security Agreement have been duly authorized by the Board of Directors of the Debtor and, to the extent required by law, by the stockholders of the Debtor, and no other corporate action of the Debtor is requisite to the execution and delivery of this Security Agreement. 5. All tax returns and reports of the Debtor required by law to be filed have been duly filed, and all taxes, assessments, contributions, fees and other governmental charges (other than those currently payable without penalty or interest and those currently being contested in good faith) upon the Debtor or upon the Debtor's properties, assets or income which are due and payable have been paid. 6. There are no actions, suits or proceedings pending or, to the knowledge of the Debtor, threatened against or affecting the Debtor or the Collateral in any court at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality, an adverse decision in which might materially affect the Debtor's ability to perform the Debtor's obligations under this Security Agreement. 7. The Debtor is not in violation of or in default with respect to any provision of its articles of incorporation or bylaws or any mortgage, indenture, contract, agreement or instrument applicable to the Debtor, or by which the Debtor is bound, and the execution, delivery, performance of and compliance with this Security Agreement will not result in any such violation or be in conflict with or constitute a default under any such provision, or result in the creation of any mortgage, lien, security interest or charge on any of the properties or assets of the Debtor not contemplated by this Security Agreement; and there is no provision of its articles of incorporation or bylaws or any mortgage, indenture, contract, agreement or instrument applicable to the Debtor or by which the Debtor is bound which materially adversely affects, or in the future (so far as the Debtor can now foresee) will materially adversely affect, the business or prospects or condition (financial or other) of the Debtor or of any of its properties or assets. 8. Any financial statements heretofore delivered to the Secured Party by the Debtor are true and correct in all respects, have been prepared in accordance with generally accepted accounting principles, and fairly represent the respective financial conditions of the subjects thereof as of the respective dates thereof; no materially adverse change has occurred in the financial conditions reflected therein since the respective dates thereof; and no additional borrowings have been made by the Debtor since the date thereof.