Common use of Representation and Warranties of the Company Clause in Contracts

Representation and Warranties of the Company. 2.1. To induce the Noteholders to execute and deliver this First Amendment, the Company represents and warrants to the Noteholders that: (a) this First Amendment has been duly authorized by all necessary corporate action on part of the Company and duly executed and delivered by the Company and the Original Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (b) the execution and delivery of this First Amendment by the Company and the performance hereof and of the Original Note Purchase Agreement, as amended by this First Amendment, will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit agreement or lease, (B) corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any material order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this First Amendment or the performance hereof or of the Original Note Purchase Agreement, as amended by this First Amendment, by the Company; and (d) immediately before and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing.

Representation and Warranties of the Company. 2.1. To induce the Noteholders to execute and deliver this First Second Amendment, the Company represents and warrants to the Noteholders that: (a) this First Second Amendment has been duly authorized by all necessary corporate action on part of the Company and duly executed and delivered by the Company and the Original Note Purchase Agreement, as amended by this First Second Amendment, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (b) the execution and delivery of this First Second Amendment by the Company and the performance hereof and of the Original Note Purchase Agreement, as amended by this First Second Amendment, will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit agreement or lease, (B) corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any material order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this First Second Amendment or the performance hereof or of the Original Note Purchase Agreement, as amended by this First Second Amendment, by the Company; and (d) immediately before and after giving effect to this First Second Amendment, no Default or Event of Default has occurred which is continuing.

Representation and Warranties of the Company. 2.1. To induce the Noteholders to execute and deliver this First Amendment, the Company represents and warrants to the Noteholders (which representations shall survive the execution and delivery of this First Amendment) that: (a) this First Amendment has been duly authorized by all necessary corporate action on part of the Company and duly authorized, executed and delivered by the Company and the Original Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (b) the execution and delivery of this First Amendment and the performance by the Company and the performance hereof and of the Original Note Purchase Agreement, as amended by this First Amendment, will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit agreement or lease, (B) lease or corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any material order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this First Amendment or the performance hereof or of the Original Note Purchase Agreement, as amended by this First Amendment, by the Company; and (dc) immediately before and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing.

Representation and Warranties of the Company. 2.1. To induce (a) The Company is a corporation duly organized, validly existing and in good standing under the Noteholders laws of Colorado and has full corporate power and authority to execute and deliver this First Amendment, Agreement and to consummate the Company represents and warrants to the Noteholders that:transactions contemplated hereby. (ab) The execution and delivery of this First Amendment has Agreement and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary the board of directors of the Company and the stockholders of the Company, if required, and no further consent or authorization is required by the Company, the board of directors of the Company or of its stockholders. No other corporate action proceedings on the part of the Company are necessary to approve and duly executed authorize the execution and delivered by the Company and the Original Note Purchase delivery of this Agreement, as amended by this First Amendment, . This Agreement constitutes the legal, valid and binding obligation agreement of the Company Company, enforceable against the Company it in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium bankruptcy or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);generally. (bc) The Warrant Shares have been duly authorized, have been duly reserved for issuance and upon exercise of the Warrants and payment to the Company of the exercise price therefore, the Warrant Shares will be validly issued, fully paid and non-assessable. The SpendSmart Payments Company June 5, 2013 Page 3 of 8 (d) Neither the execution and delivery of this First Amendment Agreement by the Company and nor the performance hereof and consummation of the Original Note Purchase Agreement, as amended by this First Amendment, transactions contemplated hereby will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit agreement or lease, (B) corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2i) conflict with or result in any breach of any provisions of the Articles of Incorporation or Bylaws of the Company, each as amended to date; (ii) require any consent, approval, authorization or permit from, or filing with or notification to, any United States or foreign governmental or regulatory authority or other third party, except for any such consents approvals, authorizations, permits, filings or notifications, the absence of which would not have a material adverse effect on the Company or the Warrants, (iii) result in a breach of the terms, conditions or provisions of, constitute a default under or cause, permit or give rise to any right of termination, cancellation or acceleration under any of the terms, conditions or provisions of any material order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable agreement to which the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this First Amendment or the performance hereof or of the Original Note Purchase Agreement, as amended by this First Amendment, by the Company; and (d) immediately before and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuinga party.

Representation and Warranties of the Company. 2.1. To induce the Noteholders Purchasers to execute and deliver this First Amendment, the Company represents and warrants to the Noteholders Purchasers (which representations shall survive the execution and delivery of this First Amendment) that: (a) this First Amendment has been duly authorized by all necessary corporate action on part of the Company and duly authorized, executed and delivered by the Company and the Original Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (b) the execution and delivery of this First Amendment and the performance by the Company and the performance hereof and of the Original Note Purchase Agreement, as amended by this First Amendment, will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit agreement or lease, (B) lease or corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any material order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this First Amendment or the performance hereof or of the Original Note Purchase Agreement, as amended by this First Amendment, by the Company; and (dc) immediately before and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing.

Representation and Warranties of the Company. 2.1. To induce the Noteholders to execute and deliver this First AmendmentThe COMPANY hereby covenants, the Company represents and warrants to and for the Noteholders benefit of the BROKER- DEALER that: (a) this First Amendment The COMPANY will at all times comply with all applicable rules, regulations and, orders of the NASD, and any court, government or unit or agency thereof which has jurisdiction over it. (b) There is no action, suit, litigation or proceeding before or by any court or governmental agency pending or threatened against or involving the property or business of the COMPANY or its Affiliates, which is likely to result in any material adverse change of the condition (financial or otherwise), business or prospects of the COMPANY or its Affiliates, other than as disclosed in the COMPANY'S annual report filed with the SEC on Form 10K for the year ended August 31, 1998. (c) This Agreement has been duly authorized by all necessary corporate action on part of the Company and duly validly authorized, executed and delivered by and on behalf of the Company COMPANY and the Original Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation agreement of the Company COMPANY enforceable against the Company it in accordance with its terms, except as such enforceability may be limited by (1) terms subject to any applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other similar laws affecting the enforcement enforceability of creditors’ creditor's rights generally generally, from time to time in effect and (2) general principles except as the indemnification provisions of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);the Section 6 hereof may be limited under the Federal securities laws. (bd) The COMPANY has the execution corporate power and authority to execute, deliver and perform its obligations under this Agreement and has taken all action required by law, its Certificate of Incorporation, its By-Laws, or otherwise to authorize the execution, delivery and performance of this First Amendment by the Company Agreement and the execution, delivery and performance hereof and of the Original Note Purchase Agreement, as amended by this First Amendment, will Agreement does not (1) contravene, result in any breach of, or constitute a default under, or result in violate the creation of any Lien in respect of any property provision of the Company Certificate of Incorporation or any Subsidiary under, (A) any material indenture, mortgage, deed By-Laws of trust, loan, purchase the COMPANY or credit agreement or lease, (B) corporate charter or by-laws or (C) any other material agreement or instrument to which the Company or any Subsidiary COMPANY is bound a party or by which the Company and/or its assets are bound, or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any material order, judgment, decree rule or ruling of any court, arbitrator or Governmental Authority regulation applicable to the Company COMPANY of any court or any Subsidiary governmental body or administrative agency having jurisdiction over the COMPANY. (3e) violate in any material A registration statement has been prepared with respect any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary; (c) no consentBonds, approval or authorization of, or registration, filing or declaration with, any Governmental Authority including a prospectus prepared by the COMPANY which is required materially in connection conformity with the execution and delivery of this First Amendment or the performance hereof or requirements of the Original Note Purchase AgreementSecurities Act of 1933, as amended by this First Amendment(the "Act"), and the rules and regulations of the SEC thereunder and has been filed with the SEC under the Act. (f) To the Company's knowledge, neither the SEC nor the National Association of Securities Dealers has issued any order preventing or suspending the use of any Prospectus with respect to the Bonds and any further amendments or supplements thereto. The COMPANY further represents that said Prospectus and related documents contain all statements which are required to be stated therein by the CompanyAct and the Rules and Regulations and conform in all material respects with the requirements of the Act and the Rules and Regulations; andneither the Registration Statement nor the Prospectus nor any amendment or supplement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representations or warranties are made as to information contained in or omitted from the Registration Statement or the Prospectus or any amendment or supplement thereto in reliance upon written information furnished to the COMPANY by the BROKER-DEALER or its representatives specifically for inclusion therein. (dg) immediately before The consolidated financial statements of the COMPANY included in the Prospectus fairly present the balance sheets, statements of operations, cash flows, and after giving effect capital, shares and equities of the COMPANY at the respective dates of such statements and for the periods therein set forth and have been prepared in conformity with generally accepted accounting principles. (h) The COMPANY represents that there are no minimum requirement of Bonds to this First Amendmentbe sold to make the offering effective and that no escrow requirement exists under NASD or under the Act, (i) The COMPANY assures the BROKER-DEALER that the States' "blue sky" securities laws shall have been complied with and all conditions pertaining to State securities laws and regulations in the states in which the COMPANY allows the BROKER-DEALER to offer Bonds will have been met prior to such offering of said Bonds by the BROKER-DEALER or its agents. (j) The COMPANY has presently obtained "blue sky" clearance in the states of Arizona, no Default or Event Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Washington, and Wyoming. The COMPANY shall promptly notify the BROKER-DEALER in the event of Default has occurred which is continuingany changes.

Representation and Warranties of the Company. 2.1. To induce the Noteholders to execute and deliver this First Amendment, the The Company hereby represents and warrants to the Noteholders that: (a) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this First Amendment Agreement. (b) This Agreement has been duly authorized by all necessary corporate action on part of the Company and duly validly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery by the Original Note Purchase AgreementInitial Purchasers, as amended by this First Amendment, the Trustee and the Escrow Agent) constitutes the legal, a valid and binding obligation agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (1) subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting the enforcement of creditors’ ' rights generally and (2) remedies generally, and subject, as to enforceability, to general principles of equity equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding at law or in equity or at lawequity);, and except that rights to indemnification and contribution thereunder may be limited by public policy relating thereto. (bc) the execution The execution, delivery and delivery performance of this First Amendment Agreement by the Company and the performance hereof and will not conflict with or result in a breach or violation of any of the Original Note Purchase Agreementterms or provisions of, impose any lien, charge or encumbrance (except as amended contemplated by this First Amendment, will not (1Agreement) contravene, result in upon any breach ofproperty or assets of the Company pursuant to, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (A) any material indenture, mortgage, deed of trust, loan, purchase or credit loan agreement or leaseother agreement, (B) corporate charter or by-laws or (C) any other material agreement license or instrument to which the Company or any Subsidiary is bound a party or by which the Company or any Subsidiary or any of their respective properties may be is bound or affected, (2) conflict with or result in a breach of to which any of the termsproperty or assets of the Company is subject, conditions or nor will such actions result in any violation of the provisions of any material order, judgment, decree the charter or ruling bylaws of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate in any material respect any provision of any statute or other any order, rule or regulation of any Governmental Authority applicable to court or governmental agency or body having jurisdiction over the Company or any Subsidiary;of its properties or assets. (cd) Other than as described in the Offering Memorandum, dated August 5, 2004, relating to the Notes, as supplemented by the Offering Memorandum Supplement, dated August 18, 2004, no consent, approval approval, authorization or authorization order of, or registrationfiling, filing registration or declaration qualification with, any Governmental Authority such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company, other than filings of UCC financing statements. (e) There are no legal or governmental proceedings pending to which the Company is a party or of which any property or assets of the Company is the subject which, if determined adversely to the Company would reasonably be expected to have a material adverse effect on the operations, management, financial position, results of operations, business or prospects of the Company, and to the Company's knowledge, no such proceedings have been threatened by governmental authorities or others. (f) The Company has not taken, and will not take, any action that might cause the pledge of the Collateral pursuant to this Agreement to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. (g) Upon the delivery to the Escrow Agent of the Collateral in connection the Proceeds Account and the filing of UCC financing statements with the Secretary of State of the State of Delaware and the Secretary of State of the State of New York, the Trustee will have a valid, duly perfected first priority security interest in such Collateral, as security for the payment and performance of the Secured Obligations for the benefit of the Trustee and the Holders of the Notes, and enforceable as such against all creditors of the Company and any Persons purporting to purchase any of such Collateral from the Company. The actions, recordings and filings described in the immediately preceding sentence are the only actions, recordings and filings necessary to publish notice of and perfect the rights of the Trustee in all of such Collateral. (h) Concurrently with the execution and delivery of this First Amendment or Agreement, the performance hereof or amount of $198,077,777.78, which consists of (i) $196,250,000 in net cash proceeds from the sale of the Original Note Purchase AgreementNotes and (ii) $2,411,111.18 of additional cash, as amended has been deposited by this First Amendment, by or on behalf of the Company; andCompany into the Proceeds Account. (di) immediately before and after giving effect The Escrowed Funds are sufficient to this First Amendment, no Default or Event of Default has occurred which is continuingmake any payment that may be required under Section 3.3 hereof.