Common use of Representations and Warranties of the Construction Agent and the Lessee Clause in Contracts

Representations and Warranties of the Construction Agent and the Lessee.

Representations and Warranties of the Construction Agent and the Lessee. Effective as of the Initial Closing Date, Construction Agent and the Lessee represent and warrant to each of the other parties hereto that: (a) Each of the Construction Agent and the Lessee is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida; each of their Subsidiaries (except for any Person that became a Subsidiary since the delivery of the most recent Compliance Certificate (defined below)) is listed on Schedule 5 hereto or in the most recent financial covenant compliance certificate (each, a "COMPLIANCE CERTIFICATE") that has been delivered to the Agent, the Lender and the Holders pursuant to SECTION 28.2 of the Lease; each Subsidiary of the Lessee or the Counteraction Agent is duly organized and validly existing under the laws of the jurisdiction of its organization; and each of the Construction Agent and the Lessee and each of their Subsidiaries is duly qualified to do business in each other jurisdiction where the nature of its business makes such qualification necessary, except where such failure to so qualify would not have a Material Adverse Effect. Each of the Construction Agent, the Lessee and each of their Subsidiaries has the power and authority to carry on its business as now conducted and to enter into and perform its obligations under each Operative Agreement to which it is or will be a party and each other agreement, instrument and document to be executed and delivered by it on or before each Closing Date in connection with or as contemplated by each such Operative Agreement to which it is or will be a party; (b) The execution, delivery and performance by each of the Construction Agent, the Lessee and any of their Subsidiaries of this Agreement and the other Operative Agreements to which each is or will be a party have been duly authorized by all necessary corporate action on the part of each of the Construction Agent, the Lessee and each such Subsidiary (including any necessary shareholder action), have received all necessary governmental approval, and do not and will not (i) violate any Legal Requirement, decree, judgment or award which is applicable to or binding on the Construction Agent or the Lessee or any of their Subsidiaries, (ii) violate or conflict with, or result in a breach of, any provision of the Certificate of Incorporation, By-Laws or other organizational documents of either the Construction Agent or the Lessee or any of their Subsidiaries, or any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan, credit agreement or other agreement, instrument or document to which either the Construction Agent or the Lessee or any of their Subsidiaries is a party or which is binding on either the Construction Agent or the Lessee or any of their Subsidiaries or any of their respective properties, or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of either of the Construction Agent or the Lessee or any of their Subsidiaries; (c) Each of this Agreement and each other Operative Agreement to which the Construction Agent, the Lessee or any of their Subsidiaries is or will be a party has been, or will be, duly executed and delivered by it and constitutes, or upon execution and delivery will constitute, the legal, valid or binding obligation of the Construction Agent, the Lessee or such Subsidiary, as the case may be, enforceable against it in accordance with the terms thereof, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting the enforceability of creditors' rights generally and to the effect of general principles of equity (whether considered in a proceeding at law or in equity). The Construction Agent, the Lessee and each of their Subsidiaries have each executed the various Operative Agreements required to be executed as of the Initial Closing Date; (d) There are no actions, suits or proceedings (including, without limitation, any derivative action) pending or, to the knowledge of either the Construction Agent or the Lessee, threatened with respect to the Construction Agent or Lessee or any of their Subsidiaries which, if adversely decided, are reasonably likely to result, either individually or collectively, in a Material Adverse Effect. None of the Construction Agent, the Lessee nor any of their Subsidiaries has any material contingent liabilities not provided for or disclosed in the financial statements referred to in SECTION 7.3(F), which are required in accordance with GAAP to be reported in such financial statements; (e) No Governmental Action by any Governmental Authority or authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement or (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, in each case, except those which have been obtained and are in full force and effect; (f) The audited consolidated financial statements of each of the Construction Agent and the Lessee as at January 31, 2000, copies of which have been furnished to the Agent and the Owner Trustee, were prepared in accordance with GAAP and fairly present the financial condition of each of the Construction Agent and the Lessee and their Subsidiaries on a consolidated basis as of such date and their consolidated results of operations for the fiscal year then ended; (g) Since the date of the audited financial statements described in SECTION 7.1(F)(I), there has been no event or occurrence which has had or is reasonably likely to have a Material Adverse Effect; (h) Neither the Construction Agent nor the Lessee knows of any material proposed tax assessments against it or any of its Subsidiaries. No extension of time for assessment or payment of any federal, state or local tax by either the Construction Agent or the Lessee or any of their Subsidiaries is in effect;

Representations and Warranties of the Construction Agent and the Lessee. Effective as of the Amendment Closing Date, the Construction Agent and the Lessee represent and warrant to each of the other parties hereto that: (a) Each of the Construction Agent and the Lessee is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida; each of their Subsidiaries is duly organized and validly existing under the laws of the jurisdiction of its organization; and each of the Construction Agent and the Lessee and each of their Subsidiaries is duly qualified to do business in each other jurisdiction where the nature of its business makes such qualification necessary, except where such failure to so qualify would not have a Material Adverse Effect. Each of the Construction Agent and the Lessee has the power and authority to carry on its business as now conducted and to enter into and perform its obligations under each Operative Agreement to which it is or will be a party and each other agreement, instrument and document to be executed and delivered by it on or before each Closing Date in connection with or as contemplated by each such Operative Agreement to which it is or will be a party; (b) The execution, delivery and performance by each of the Construction Agent and the Lessee of this Agreement and the other Operative Agreements to which each is or will be a party have been duly authorized by all necessary corporate action on the part of each of the Construction Agent and the Lessee (including any necessary shareholder action), have received all necessary governmental approval, and do not and will not (i) violate any Legal Requirement, decree, judgment or award which is applicable to or binding on the Construction Agent or the Lessee or any of their Subsidiaries, (ii) violate or conflict with, or result in a breach of, any provision of the Certificate of Incorporation, By-Laws or other organizational documents of either the Construction Agent or the Lessee or any of their Subsidiaries, or any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan, credit agreement or other agreement, instrument or document to which either the Construction Agent or the Lessee or any of their Subsidiaries is a party or which is binding on either the Construction Agent or the Lessee or any of their Subsidiaries or any of their respective properties, or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of either of the Construction Agent or the Lessee or any of their Subsidiaries; (c) Each of this Agreement and each other Operative Agreement to which the Construction Agent or the Lessee is or will be a party has been, or will be, duly executed and delivered by it and constitutes, or upon execution and delivery will constitute, the legal, valid or binding obligation of the Construction Agent or the Lessee, as the case may be, enforceable against it in accordance with the terms thereof, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting the enforceability of creditors' rights generally and to the effect of general principles of equity (whether considered in a proceeding at law or in equity). The Construction Agent and the Lessee have each executed the various Operative Agreements required to be executed as of the Initial Closing Date; (d) There are no actions, suits or proceedings (including, without limitation, any derivative action) pending or, to the knowledge of either the Construction Agent or the Lessee, threatened with respect to the Construction Agent or Lessee or any of their Subsidiaries which, if adversely decided, are reasonably likely to result, either individually or collectively, in a Material Adverse Effect. None of the Construction Agent, the Lessee nor any of their Subsidiaries has any material contingent liabilities not provided for or disclosed in the financial statements referred to in Section 7.3(f), which are required in accordance with GAAP to be reported in such financial statements; (e) No Governmental Action by any Governmental Authority or authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement or (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, in each case, except those which have been obtained and are in full force and effect; (i) The audited consolidated financial statements of each of the Construction Agent and the Lessee as at December 29, 1996, copies of which have been furnished to the Agent and the Owner Trustee, were prepared in accordance with GAAP and fairly present the financial condition of each of the Construction Agent and the Lessee and their Subsidiaries on a consolidated basis as of such date and their consolidated results of operations for the fiscal year then ended and (ii) the unaudited consolidated financial statements as at March 30, 1997, copies of which have been furnished to the Agent and the Owner Trustee, were prepared in accordance with GAAP (subject to normal year-end adjustments) and fairly present the financial condition of the Construction Agent and the Lessee and their Subsidiaries on a consolidated basis as of such date and their consolidated results of operations for the fiscal year then ended and such 13-week period, respectively; (g) Since the date of the audited financial statements described in Section 7.3(f), there has been no event or occurrence which has had or is reasonably likely to have a Material Adverse Effect; (h) Neither the Construction Agent nor the Lessee knows of any proposed material tax assessments against it. No extension of time for assessment or payment of any material federal, state or local tax by either the Construction Agent or the Lessee is in effect;

Representations and Warranties of the Construction Agent and the Lessee. As of the Effective Date, the date of each Funding, the date each Domestic Subsidiary becomes a Credit Party and the Rent Commencement Date, each Credit Party represents and warrants to each of the other parties hereto that: (a) The Incorporated Representations and Warranties are true and correct (unless such relate solely to an earlier point in time); (b) Each Credit Party (i) is duly organized, validly existing and in good standing under the laws of the state of its incorporation, (ii) has the corporate power, authority and legal right to own or operate its properties or to lease the properties it operates and to conduct the business in which it is currently engaged, and (iii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except where such failure to qualify could not have a Material Adverse Effect. (c) Each Credit Party has the corporate power, authority and legal right to make, deliver and perform this Agreement and the other Related Documents to which it is a party and has taken on necessary corporate action to authorize the execution, deliver and performance of this Agreement and the other Related Documents to which it is a party. No consent of any other Person (including, without limitation, the stockholders and creditors of any Credit Party), and no authorization of, notice to, or other act by any governmental authority, agency or instrumentality is required in connection with (i) the execution, delivery, performance, validity or enforceability of this Agreement or any other Related Document to which such Credit Party is a party, (ii) the acquisition of, construction of the Improvements on and installation of the Equipment at the Property in accordance with the Plans and Specifications, the completion of construction of the Improvements and the occupancy of and the operation leasing and subleasing of the Property, except as has been or will be obtained in order to satisfy the obligations of any Credit Party hereunder or under any other Related Document, or (iii) any Advance, Certificateholder Advance or Revolving Credit Advance made pursuant to the terms of the Related Documents. This Agreement and the other Related Documents to which such Credit Party is a party have been duly executed and delivered by such Credit Party, and this Agreement and the other Related Documents to which such Credit Party is a party constitute the legal, valid and binding obligation of such Credit Party, enforceability against such Credit Party in accordance with its terms, except that such enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally or by general principles of equity. (d) The execution, delivery and performance by each Credit Party of this Agreement and the other Related Documents to which it is a party will not violate any provision of any existing Law or regulation applicable to such Credit Party or any award, order or decree applicable to such Credit Party of any court, arbitrator or governmental authority or the articles or certificate of incorporation or by-laws of such Credit Party, or of any security issued by such Credit Party or of any mortgage, indenture, lease, contract or other agreement or undertaking to which such Credit Party is a party or by which such Credit Party or any of its properties or assets may be bound. (e) Upon the execution and delivery of the Master Lease, (i) the Lessee will have unconditionally accepted the Property subject to the Master Lease and will have a valid and subsisting leasehold interest in the Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Master Lease; (f) Except as otherwise contemplated by the Related Documents, the Construction Agent has not used the proceeds of any Advance or Certificateholder Advance for any purpose other than the acquisition, installation and testing of the Equipment, the design, permitting and construction of the Improvements in accordance with the Plans and Specifications and the payment of Lease Transaction Expenses; as of the date of each Funding the Construction Agent has no knowledge or reasonable expectation that the aggregate costs for the Property shall exceed the original Construction Budget (or exceed the Construction Budget as modified in accordance with the Operative Agreements) for the Property or that Completion for the Property shall not occur on or prior to the Construction Period Termination Date; (g) All information furnished by each Credit Party or its Subsidiaries to the Collateral Agent, the Agent, the Owner Trustee, any Revolving Credit Lender, any Lender or any Certificateholder for purposes of or in connection with this Agreement or the transactions contemplated hereby is, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not omit to state any material fact necessary to make such information, taken as a whole, not misleading; (h) The principal place of business, chief executive office and office of the Construction Agent and the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Related Document are kept are located at 12740 Xxx Xxxxxxxx Xxxx, Sylmar, California 91342, and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit I; (i) Each Credit Party is in all material respects in compliance with its obligations under the Related Documents and there exists no Potential Default or Event of Default under any of the Related Documents which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Related Document or otherwise waived in accordance with the applicable Related Document. No Potential Default or Event of Default will occur under any of the Related Documents as a result of, or after giving effect to, any Funding requested by a Requisition on the date of each Funding; (j) The Lessor has good and insurable leasehold title to and a valid leasehold interest in the Property enforceable against North Campus - University Park Development Corporation and the Board of Trustees of California State University, in accordance with the terms of Ground Sublease and the Landlord Waiver, subject only to Permitted Liens; (k) No portion of the Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if the Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for the Property in accordance with Section 10 of the Master Lease and in accordance with the National Flood Insurance Act of 1968, as amended; (l) The Property complies with all requirements for insurance set forth in Section 10 of the Master Lease; (m) The Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Requirements), except to the extent that failure to comply therewith, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (n) All utility services and facilities necessary for the construction of the improvements on and the installation of the Equipment at the Property in accordance with the Plans and Specifications, and thereafter for the operation and use of the Property, (including without limitation gas, electrical, water and sewage services and facilities) are available or will be constructed prior to the Completion Date; (o) At all times during the Construction Period and as of the Completion Date, the acquisition, installation and testing of the Equipment and construction of the Improvements on the Property shall have been performed in a good and workmanlike manner, in accordance with the Plans and Specifications; (i) The Security Documents create, as security for the Secured Obligations (as such term is defined in the Security Documents), valid and enforceable Liens on all of the Collateral, in favor of the Collateral Agent, for the benefit of the Secured Parties, as their respective interests appear in the Related Documents. Upon recordation of the Security Documents in the real estate recording office identified by the Credit Parties, the Lien created by the Security Documents in the real property described therein shall be a perfected first priority mortgage Lien on all of Lessor's right, title and interest in the Property and Equipment in favor of the Collateral Agent, for the benefit of the Secured Parties, as their respective interests appear in the Related Documents. To the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices identified by the Credit Parties, upon filing of the Financing Statements in such filing offices, the security interests created by the Security Documents shall be perfected security interests in such personal property in favor of the Collateral Agent, for the benefit of the Secured Parties, as their respective interests appear in the Related Documents, subject only to Permitted Liens; (ii) The Trust Security Documents create, as security for the obligations of the Lessor under the Related Documents, valid and enforceable Liens on the Collateral described in the Trust Security Documents, in favor of the Collateral Agent, and such Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title commitment issued under Section 5.3(e) with respect to the Property. (iii) Upon recordation of the memorandum of the Master Lease and the memorandum of the Ground Sublease (or, in either case, a short form Master Lease or Ground Sublease) in the real estate recording office identified by the Construction Agent or the Lessee, the Lien created by the Master Lease in the leasehold estate described therein shall be a perfected first priority mortgage Lien on such leasehold estate in favor of the Lessor and the Collateral Agent as the Lessor's assignee, for the benefit of the Agent, the Lenders, the Certificateholders and the Owner Trustee, as their respective interests appear in the Related Documents. To the extent that the security interests in the portion of the Property comprised of personal property can be perfected by the filing of the Lessor Financing Statements, upon filing of the Lessor Financing Statements in the appropriate filing offices, the security interest created by the Master Lease shall be a perfected security interest in such personal property, subject only to Permitted Liens, in favor of the Lessor and the Collateral Agent as the Lessor's assignee, for the benefit of the Agent, the Lenders, the Certificateholders and the Owner Trustee, as their respective interests appear in the Related Documents; (q) The Plans and Specifications for the Property have been prepared in accordance with all applicable Legal Requirements (including without limitation all applicable Environmental Requirements and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect. Upon completion of the Improvements for the Property in accordance with the Plans and Specifications, such Improvements will be within any and all building restriction lines and will not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Collateral Agent if such approval is required under any of the Related Documents); (r) As of the Completion Date, the Property shall be improved in accordance with the Plans and Specifications and in a good and workmanlike manner and shall be operational; (s) Each Domestic Subsidiary that is not an Inactive Subsidiary has executed this Agreement in its capacity as a Subsidiary Guarantor; and (t) The software and the hardware operated by each Credit Party are capable of providing or being adapted to provide the ability to process dates or store data within the twenty-first century or between the twentieth and twenty-first century, or otherwise operate without error with respect to twenty-first century dates in substantially the same manner and with the same functionality as such software records, stores processes and presents such data as of the date hereof ("Y2K Compliance"). All adaptations and replacements of software and hardware required to achieve full Y2K Compliance will be completed on or before September 30, 1999, except where a failure to achieve full Y2K Compliance will not have a Materially Adverse Effect.