Common use of Representations and Warranties and Covenants of the Seller Clause in Contracts

Representations and Warranties and Covenants of the Seller. The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, "Encumbrances"). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance. (d) Until the Settlement Date, the Seller shall execute all certificates, instruments, documents or agreements to further effectuate the delivery of the Shares pursuant to this Agreement. (e) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

Representations and Warranties and Covenants of the Seller. The Seller represents and warrants to, and covenants with, the Purchaser Purchasers and, with respect to Section 3(f), the Company that: (a) The Seller is a corporation duly formedorganized, validly existing and in good standing under the laws of its jurisdiction the State of organizationDelaware. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its their terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the The Seller has valid good and good marketable title to the SharesSecurities, and the Shares Securities are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance or any restriction on transfer or voting (collectively, "Encumbrances"). Upon delivery of the Shares Securities to the Purchaser on Purchasers at the Settlement DateClosing, against payment therefor as contemplated hereby, the Seller will deliver the Shares Securities to the Purchaser Purchasers free and clear of any Encumbrance. (d) Until No consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Settlement DateSeller is required for the execution, delivery or performance by the Seller of its obligations hereunder including, without limitation, the Seller shall execute all certificatessale, instrumentstransfer, documents or agreements to further effectuate the delivery assignment and conveyance of the Shares pursuant to this AgreementSecurities. (e) Neither execution and delivery of this Agreement nor the sale of the Securities nor the performance of the Seller's other obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the certificate of incorporation, bylaws or other organizational documents of the Seller, or (ii) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Seller or any of its assets or properties. (f) The Seller acknowledges that the Purchasers may be in possession of material non-public information not known to it (the "Excluded Information") and further acknowledges that the Purchasers and the Company (under appropriate nondisclosure agreement) have offered to share with the Seller any Excluded Information that may exist. The Seller agrees that neither the Purchasers nor the Company shall have any liability with respect to any such non-disclosure. The Seller hereby waives any and all claims and causes of action now or hereafter arising against the Purchasers and/or the Company based upon or relating to such non-disclosure and further covenants not to xxx either the Purchasers or the Company or any of their respective partners, directors, officers, employees, agents or affiliates for any loss, damage or liability arising from or relating to such non-disclosure. It is understood and agreed that the Purchasers make no representation or warranty whatsoever with respect to the business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the Company, or with respect to the value of the Securities. (g) There is no investment banker, broker, finder or other intermediary who is might be entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

Representations and Warranties and Covenants of the Seller. The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth thereinShares, the Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, "Encumbrances"). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance. (d) Until the Settlement Date, the Seller shall execute all certificates, instruments, documents or agreements to further effectuate the delivery of the Shares pursuant to this Agreement. (e) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (fe) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

Representations and Warranties and Covenants of the Seller. The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its their terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the The Seller has valid good and good marketable title to the SharesSecurities, and the Shares Securities are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance or any restriction on transfer or voting (collectively, "Encumbrances"). Upon delivery of the Shares Securities to the Purchaser on at the Settlement DateClosing, against payment therefor as contemplated hereby, the Seller will deliver the Shares Securities to the Purchaser free and clear of any Encumbrance. (d) Until No consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Settlement DateSeller is required for the execution, delivery or performance by the Seller of its obligations hereunder including, without limitation, the Seller shall execute all certificatessale, instrumentstransfer, documents or agreements to further effectuate assignment and conveyance of the Securities. (e) Neither execution and delivery of this Agreement nor the Shares pursuant sale of the Securities nor the performance of the Seller's other obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the organizational documents of the Seller, or (ii) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Seller or any of its assets or properties. (f) The Seller is aware that the Purchaser may possess material non-public information regarding the Company or the Securities. In addition, the Purchaser has received historical financial information regarding the Company through the date hereof. The Purchaser has received financial and other projections in connection with the Company, provided to the Purchaser by the Company or their financial advisors, during the months of September and October 2005, including without limitation those contained in the (i) email sent on September 26, 2005, 11:41 AM by Xxxx Xxxxxx of Xxxxxxxx Xxxxx Xxxxxx & Zurkin ("HLHZ") to Xxxxxx Xxxxxx containing earnings projections, (ii) email sent on October 5, 2005, 11:06 AM by Xxxxxx Xxxxxxxxx of the Company to Xxxxxx Xxxxxxxxx containing a weekly sales report, (iii) email sent on October 5, 2005, 8:09 PM by Xxxxxxx Xxxxx of the Company to Xxxxxx Xxxxxxxxx containing a weekly cash flow update, (iv) email sent on October 9, 2005, 5:56 PM by Xxxx Xxxxxx of HLHZ to Xxxxxx Xxxxxxxxx containing a cash flow forecast, (v) email sent on October 12, 2005, 3:50 PM by Xxxxxxx Xxxxx to Xxxxxx Xxxxxxxxx containing a weekly cash flow update and (vi) email sent on October 12, 2005, 3:36 PM by Xxxx Xxxxxx of HLHZ to Xxxxxx Xxxxxxxxx containing a cash flow forecast, all of which projections, emails and information the Purchaser has reviewed and fully understands (the "Additional Information"). The Seller has received the Additional Information via email. The Seller hereby waives any and all claims it may have or may hereafter acquire against the Purchaser relating to any failure by the Purchaser to disclose any material non-public information to the Seller in connection with the Seller's sale of the Securities. The Seller hereby represents and warrants that it is financially sophisticated; it beneficially owns over 50% of the equity in the Company prior to this transaction and is represented on the board of directors of the Company; it is capable of obtaining all information that it deems material to this transaction from its records, its agents, and/or the Company; it has been afforded the opportunity to ask such questions of the Company as it deems material to this transaction and such questions have been addressed to its satisfaction; and it acknowledges that no representations have been made by the Purchaser in respect of this transaction or the Company except as expressly set forth in this Agreement. (eg) There is no investment banker, broker, finder or other intermediary who is might be entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

Representations and Warranties and Covenants of the Seller. The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the The Seller has valid good and good marketable title to the SharesSecurities, and the Shares Securities are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance or any restriction on transfer or voting (collectively, "“Encumbrances"”). Upon delivery of the Shares Securities to the Purchaser on at the Settlement DateClosing, against payment therefor as contemplated hereby, the Seller will deliver the Shares Securities to the Purchaser free and clear of any Encumbrance. (d) Until Subject only to the Settlement Daterequirements of that certain Order Granting Emergency Motion for Entry of an Order Pursuant to Sections 105(a), 362(a)(3) and 541 of the Bankruptcy Code (A) Limiting Certain Transfers of Equity Interests in the Debtors and Claims Against the Debtors and (B) Approving Related Notice Procedures (the “Trading Order”) entered by the Bankruptcy Court, no consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Seller is required for the execution, delivery or performance by the Seller of its obligations hereunder including, without limitation, the Seller shall execute all certificatessale, instrumentstransfer, documents or agreements assignment and conveyance of the Securities. (e) Subject only to further effectuate the requirements of the Trading Order, neither execution and delivery of this Agreement nor the Shares sale of the Securities nor the performance of the Seller’s other obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the organizational documents of the Seller, or (ii) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Seller or any of its assets or properties. (f) The Seller is aware that the Purchaser may possess material non-public information regarding the Company or the Securities. In addition, the Purchaser has received historical financial information regarding the Company through the date hereof. The Purchaser has received financial and other projections in connection with the Company, provided to the Purchaser by the Company or their financial advisors, (A) from September 2005 through the date hereof, including without limitation those contained on Schedule A to this Agreement, (B) in connection with the negotiation and execution of, or pursuant to, the Debtor-in-Possession Credit and Guaranty Agreement, dated as of November 7, 2005, with the Company, and (C) in connection with the negotiation, development and filing of the Plan, all of which projections, emails and information referred to above the Purchaser has reviewed and fully understands (the “Additional Information”). The Seller has received or had access to the Additional Information. The Seller hereby waives any and all claims it may have or may hereafter acquire against the Purchaser relating to any failure by the Purchaser to disclose any material non-public information to the Seller in connection with the Seller’s sale of the Securities. The Seller hereby represents and warrants that it is financially sophisticated; it beneficially owns approximately 39% of the equity in the Company prior to this transaction and is represented on the board of directors of the Company; it is capable of obtaining all information that it deems material to this transaction from its records, its agents, and/or the Company; it has been afforded the opportunity to ask such questions of the Company as it deems material to this transaction and such questions have been addressed to its satisfaction; and it acknowledges that no representations have been made by the Purchaser in respect of this transaction or the Company except as expressly set forth in this Agreement. (eg) There is no investment banker, broker, finder or other intermediary who is might be entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

Representations and Warranties and Covenants of the Seller. The Seller Each of the Sellers represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the The Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, "“Encumbrances"”). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance. (d) Until the Settlement Date, the Seller shall execute all certificatesany certificate, instrumentsinstrument, documents document or agreements to further effectuate agreement reasonably requested by the Purchaser in connection with the delivery of the Shares pursuant to this Agreement. (e) There is no investment banker, broker, finder finder, or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares. (g) Seller is a “qualified institutional buyer” as defined in Rule 144A(a)(1) of the Securities Act of 1933, as amended. (h) Seller acknowledges that Purchaser has a related person serving as a director on the Company’s board who, as a result, may have access to information about the Shares and the Company (including, without limitation, information relating to the business, assets, liabilities, results of operation, financial condition, prospects, legal proceedings, and other aspects of the Company) that may include material, non-public information. Although both parties believe that each party’s related person has substantially equal access to information about the Shares and the Company that is made available to the Company’s board, both parties understand and acknowledge that one party (together with its related persons and other affiliates) may have material non-public information relating to the Shares or the Company that the other party does not possess. (i) Seller is (i) together with its professional advisers, a sophisticated investor with respect to the Shares and the Company, and is capable of evaluating the risks associated with a transaction involving the Shares and the Company, including the risk of transacting on the basis of potentially inferior information, and (ii) capable of sustaining any loss resulting there from without material injury. (j) Seller acknowledges and agrees that Purchaser shall have no liability arising from this transaction, and it hereby to the extent permitted by law waives and releases any claims it may have against the other party arising from this transaction. (k) Seller acknowledges that the Purchaser has not given any investment advice or opinion on whether the transaction in the Shares described herein is prudent.