Further Representations and Warranties EMPLOYEE acknowledges that this is an employment position and represents that he will perform his duties and functions herein in a timely, competent and professional manner. EMPLOYEE represents and warrants that he will be fair in his dealing with COMPANY and will not knowingly do anything against the interests of COMPANY.
Other Representations and Warranties CMSI represents and warrants to the Senior Underwriter that:
(a) Each of the offered senior certificates will, when issued, be a “mortgage related security,” as defined in section 3(a)(41) of the Exchange Act, and each of the offered senior certificates, when validly authenticated, issued and delivered in accordance with the Pooling Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Pooling Agreement.
(b) Compliance by CMSI with the provisions of this Agreement and the Pooling Agreement do not, and will not on the closing date, conflict with CMSI’s certificate of incorporation or by-laws or any contract to which CMSI is a party.
(c) On the closing date, each of this Agreement and the Pooling Agreement will have been duly authorized, executed and delivered by CMSI and, assuming the valid execution of such agreements by the other parties, each such agreement will constitute a valid and binding agreement of CMSI enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equity principles.
(d) CMSI has been duly organized and is validly existing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
Lessee’s Representations and Warranties Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Lessor’s Representations and Warranties Lessor represents and warrants that it will abide by and conform to all such laws, governmental and airport orders, rules and regulations, as shall from time to time be in effect relating in any way to the operation and use of the Aircraft pursuant to this Agreement.
Licensor’s Representations and Warranties Licensor hereby represents and warrants to Licensee that: It is a company duly organized under the laws of the state of its organization and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder; The execution and delivery of this Agreement by Licensor has been duly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by, and constitutes a valid and binding obligation of Licensor, enforceable against such party in accordance with the terms and conditions set forth in this Agreement, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally, and by general equitable or comparable principles; and The performing and mechanical reproduction rights to any musical works contained in each of the Included Programs, are either (i) controlled by ASCAP, BMI, SESAC or similar musical rights organizations, collecting societies or governmental entities having jurisdiction in the Territory, (ii) controlled by Licensor to the extent required for the licensing of the exhibition and/or manufacturing of copies of the Included Programs in accordance herewith or (iii) in the public domain. Licensor does not represent or warrant that Licensee may exercise the performing rights and/or mechanical reproduction rights in the music without obtaining a valid performance and/or mechanical reproduction license and without payment of a performing rights royalty, mechanical royalty or license fee, and if a performing rights royalty, mechanical royalty or license fee is required to be paid in connection with the exhibition or manufacturing copies of an Included Program, Licensee shall be responsible for the payment thereof and shall hold Licensor free and harmless therefrom. Licensor shall furnish Licensee with all necessary information regarding the title, composer, publisher, recording artist and master owner of such music.
Owner’s Representations and Warranties Owner represents and warrants to each Pass Through Trustee, Subordination Agent and Mortgagee that:
Your Representations and Warranties You represent and warrant to us that: (i) you are duly organized, validly existing, and in good standing under the laws of the jurisdiction in which you are organized; (ii) you are duly qualified and licensed to do business in all jurisdictions in which you conduct business; (iii) you have full authority to enter into the Agreement and all necessary assets and liquidity to perform your obligations and pay your debts hereunder as they become due; (iv) there is no circumstance threatened or pending that might have a material adverse effect on your business or your ability to perform your obligations or pay your debts hereunder; (v) you are authorized to enter into the Agreement on behalf of your Establishments and Affiliates, including those indicated in the Agreement, and the individual who signs the Agreement or otherwise enters into it has authority to bind you and them to it; (vi) you are not (1) listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List (available at xxx.xxxxx.xxx/xxxx), (2) listed on the U.S. Department of State’s Terrorist Exclusion List (available at xxx.xxxxx.xxx), or (3) located in or operating under license issued by a jurisdiction identified by the U.S. Department of State as a sponsor of international terrorism, by the U.S. Secretary of the Treasury as warranting special measures due to money laundering concerns, or as noncooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the United States is a member; (vii) you have not assigned to any third party any payments due to you under the Agreement and all indebtedness arising from Charges are for bona fide sales of goods or services (or both) at your Establishments and free of any liens, claims, or encumbrances other than ordinary sales taxes; (viii) all information that you provided in connection with the Agreement is true, accurate, and complete; and (ix) you have read the Agreement and kept a copy for your file. If any of your representations or warranties in the Agreement becomes untrue, inaccurate, or incomplete at any time, we may immediately terminate the Agreement in our discretion.
Lender’s Representations and Warranties Lender makes the following warranties and representations to CSO, all of which shall survive the execution and termination of this Agreement for any reason:
a. This Agreement is valid, binding and enforceable against Lender in accordance with its terms and Lender has received all necessary organizational approvals to enter into this Agreement and to perform its obligations hereunder. Except for Lender’s registration described below, Lender is not required to obtain the approval of, or be licensed by, any Regulatory Authority to lawfully perform its obligations hereunder.
b. Lender is a limited liability company duly formed, validly existing, and in full force and effect under the laws of the State of Ohio and is authorized and registered to do business in Ohio and in each other state in which the nature of its activities makes such authorization, registration, or licensing necessary or required. Lender is registered under the Ohio Second Mortgage Loan Law (Ohio Revised Code §§ 1321.51-.60) and will remain so registered throughout the term of this Agreement.
c. Lender is not affiliated with CSO or any affiliate of CSO.
d. Lender has the full organizational power and authority to execute and deliver this Agreement and perform all of its obligations hereunder.
e. The provisions of this Agreement and the performance of each of Lender’s obligations hereunder do not conflict with Lender’s Articles of Organization, Operating Agreement, or any agreement, contract, lease, or obligation to which Lender is a party or by which Lender is bound.
f. Neither Lender nor any principal thereof has been or is the subject of any of the following:
i. Criminal conviction (other than misdemeanor traffic offenses);
ii. IRS lien;
iii. Enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty, or similar agreement concerning lending matters;
iv. Administrative or enforcement proceeding or material investigation commenced by the Securities Exchange Commission, state securities regulatory authority, Federal Trade Commission, or any other state or federal Regulatory Authority (excluding routine examinations conducted by a Regulatory Authority and excluding communications received in the ordinary course of business from any Regulatory Authority such as communications concerning consumer complaints or communications related to immaterial issues); or
v. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practices or illegal activity on the part of Lender or any principal thereof. For purposes of this Section 11(f) the term “principal” of Lender shall include (i) any person directly or indirectly owning a ten percent or more equity interest of Lender, (ii) any officer, member or director of Lender and (iii) any other person having the power or authority to control Lender’s business.
Landlord’s Representations and Warranties Landlord represents, warrants and covenants to Tenant that:
(a) Landlord has the legal power, right and authority to enter into this Lease and the instruments to be executed by Landlord pursuant to this Lease, and to consummate the transactions contemplated hereby.
(b) All requisite corporate action has been taken by Landlord in connection with Landlord's execution of this Lease and the instruments to be executed by Landlord pursuant to this Lease and the consummation of the transactions contemplated hereby.
(c) The individuals executing this Lease and the instruments to be executed by Landlord pursuant to this Lease on behalf of Landlord, have the legal power, right and actual authority to bind Landlord to the terms and conditions of this Lease and such instruments.
(d) Neither the execution of this Lease nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any agreement, document, instrument, or other obligation to which Landlord is a party or by which Landlord may be bound, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Landlord or to the Property or result in the acceleration of any encumbrance pertaining to the Property.
(e) Except as provided on Exhibit B, there is no claim, action, litigation, arbitration, material dispute or other proceeding pending against Landlord which relates to the Property, the Leased Premises or the transactions contemplated hereby except as disclosed in writing to Tenant and, to Landlord's actual knowledge, there is currently no governmental investigation, threatened litigation or arbitration proceedings to which Landlord is, or would be, a party which relates or would relate to the Property or the Leased Premises.
(f) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Landlord nor are any of such proceedings contemplated by Landlord.
(g) There are no pending or, to Landlord's actual knowledge, contemplated condemnation or annexation proceedings affecting the Property or the Leased Premises or any part thereof.
(h) Landlord has not received any notice of any violations, and to Landlord's actual knowledge, without inquiry, the Property and the Leased Premises is not in violation of any federal, state or local law, ordinance or regulation relating to Hazardous Materials ("Hazardous Materials"), industrial hygiene or the environmental conditions on, under or about the Property or the Leased Premises including, but not limited to, soil and ground water condition except as provided on Exhibit "N". Hazardous Materials shall mean any flammable explosives, radioactive materials, hazardous wastes or substances, toxic wastes or substances and other related materials including without limitation any substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under any applicable federal, state or local laws or regulations.
(i) Landlord has not received any notice of any violation, and to Landlord's actual knowledge, without inquiry, the Property and the Leased Premises are not in violation of any law, ordinance, regulation, order or requirement applicable to the Property or the Leased Premises including without limitation, requirements imposed under any recorded covenants, conditions, restrictions, easements or other rights affecting the Property or the Leased Premises.
(j) Landlord shall not, after the execution hereof, either voluntarily or by operation of law, allow any lien or encumbrance to be placed of record against all or any portion of the Property or the Leased Premises or otherwise burden or cloud title to the Property or the Leased Premises if such lien or encumbrance would interfere with Tenant’s operation as a ski resort.
(k) There being no leases of the Property existing, Landlord shall not, after the execution hereof and while Tenant is not in default under this Lease, enter into any new leases for the Property or any portion thereof, or otherwise grant or convey any interest or occupancy right to any party other than Tenant, without first receiving Tenant's prior written consent, which consent may be granted or withheld in Tenant's sole and absolute discretion, except for leases, interest or occupancies associated or related to Landlord's developments.
(l) Prior to the Commencement Date, Landlord shall not make any further additions or modifications to the Property other than normal maintenance and repair and except for additions or modifications in conjunction with Landlord's developments.
(m) Landlord is a duly constituted and validly existing corporation under the laws of the State of Pennsylvania, duly qualified to do business in the state in which the property is located, and has the full power to carry out the transactions contemplated by this Lease.
(n) It is not necessary, under applicable law, that the Lease and/or a "short form" of lease be recorded for the Lease to be effective.
(o) This Lease does not violate or conflict in any way with the terms of any other lease applicable to the Property or the terms of any reciprocal operating agreement, cross easement agreement, restrictive covenants, or any other document.
Licensee’s Representations and Warranties LICENSEE represents and warrants that:
(a) it is a duly organized and validly existing corporation and has full authority to enter into this Agreement and to carry out the provisions hereof,
(b) the execution, delivery and performance of this Agreement by LICENSEE does not conflict with any agreement or understanding to which LICENSEE may be bound, and
(c) excluding the Intellectual Property Rights, LICENSEE is either (i) the sole owner of all right, title and interest in and to the trademarks, copyrights and all other Proprietary Rights incorporated into the Game or the Artwork or used in the development, advertising, marketing and sale of the Licensed Products or the Marketing Materials, or (ii) the holder of such rights, including trademarks, copyrights and all other Proprietary Rights which belong to any third party but have been licensed from such third party by LICENSEE, as are necessary for incorporation into the Game or the Artwork or as are used in the development, advertising, marketing and sale of the Licensed Products or the Marketing Materials under this Agreement.
