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.
Owner’s Representations and Warranties Owner represents and warrants to each Pass Through Trustee, Subordination Agent and Mortgagee that:
Contractor’s Representations and Warranties Contractor represents and warrants that neither the execution of this Agreement by Contractor, nor the acts contemplated hereby, nor compliance by Contractor with any provisions hereof will:
a) Violate any provision of the charter documents of Contractor;
b) Violate any laws, rules, regulations, or any judgment, decree, order, regulation or rule of any court or governmental authority applicable to Contractor; or
c) Violate, or be in conflict with, or constitute a default under, or permit the termination of, or require the consent of any person under, any agreement to which Contractor may be bound, the occurrence of which in the aggregate would have a material adverse effect on the properties, business, prospects, earnings, assets, liabilities, or condition (financial or otherwise) of Contractor.
Tenant’s Representations and Warranties The undersigned represents and warrants to Landlord that (i) Tenant is duly organized, validly existing and in good standing in accordance with the laws of the state under which it was organized; (ii) all action necessary to authorize the execution of this Amendment has been taken by Tenant; and (iii) the individual executing and delivering this Amendment on behalf of Tenant has been authorized to do so, and such execution and delivery shall bind Tenant. Tenant, at Landlord's request, shall provide Landlord with evidence of such authority.
Executive’s Representations and Warranties Executive represents and warrants to the Employer that (a) Executive does not have any agreements with any prior employers or other third parties that will prohibit Executive from working for the Employer or fulfilling Executive’s duties and obligations to the Employer pursuant to this Agreement, and (b) Executive has complied with any and all duties imposed on Executive with respect to Executive’s former employers, including without limitation any requirements with respect to return of property.
Environmental Representations and Warranties Except as otherwise disclosed by that certain Phase I environmental report (or Phase II environmental report, if required) delivered to Lender by Borrower in connection with the origination of the Loan (such report is referred to below as the “Environmental Report”), (a) there are no Hazardous Substances or underground storage tanks, surface impoundments, landfills, or disposal areas in, on, or under the Property and no Hazardous Substances have been handled, manufactured, generated, stored, processed, or disposed of on or released or discharged from the Property, except those that are (i) in compliance with Environmental Laws and with permits issued pursuant thereto (to the extent such permits are required under Environmental Laws), (ii) de-minimis amounts necessary to operate the Property for the purposes set forth in this Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Laws, and (iii) fully disclosed to Lender in writing prior to the execution of the Loan Documents; (b) there are no past, present or threatened Releases of Hazardous Substances in, on, under or from the Property which has not been fully remediated in accordance with Environmental Law; (c) there is no threat of any Release of Hazardous Substances migrating to the Property; (d) there is no past or present non-compliance with or liability under any Environmental Laws, or with permits issued pursuant thereto, in connection with the Property (or operations thereon) which has not been fully remediated or resolved in accordance with Environmental Law; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person (including a Governmental Authority) relating to the possible liability of any Person pursuant to any Environmental Law, any Hazardous Substances or other environmental conditions present at or otherwise involving the Property, any Hazardous Substances requiring Remediation under any Environmental Laws, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing; (f) Borrower has truthfully and fully disclosed to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property that is known to Borrower and has provided to Lender all information that is contained in Borrower’s files and records, including any reports relating to Hazardous Substances in, on, under or from the Property or the environmental condition of the Property; and (g) there are no Institutional Controls or Environmental Liens on or affecting the Property.
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.
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.
REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY All representations and warranties of the Depositor contained in this Agreement shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any controlling person in respect of such Underwriter, and shall survive delivery of the Certificates to the Underwriters.
