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

Representations and Warranties by the Seller. Seller represents and warrants to each of the Buyers as follows: (a) Seller owns the Shares and shall transfer to Buyer at the Closing good and valid title to said Shares free and clear of all liens, claims, options, charges and encumbrances whatsoever and upon the consummation of the transaction contemplated herein good title in the Shares shall vest in Buyer free of all liens, charges, encumbrances and restrictions except those arising under the Securities Act of 1933. (b) Seller has full power and authority to execute this Agreement and consummate the transactions contemplated hereby, and this Agreement is binding on Seller and enforceable in accordance with its terms. The execution and delivery of this Agreement and consummation of the transactions contemplated hereby do not violate or conflict with or constitute a default under any contract, agreement or commitment of any kind to which Seller is a party or by which Seller or Seller’s property is bound, or to Seller’s knowledge, any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over Seller or any of Seller’s property and when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. (c) There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Seller, threatened against or affecting the Seller or any of its respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the documents hereunder or the Shares or (ii) could, if there were an unfavorable decision, individually or in the aggregate, have or result in a material adverse effect. (d) The Seller is not (i) in default under or in violation of (and no event has occurred which has not been waived which, with notice or lapse of time or both, would result in a default by the Seller), nor has the Seller received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which Seller or any of Seller’s properties is bound, (ii) is in violation of any judgment or order of any court, arbitrator or governmental body, or (iii) is in violation of any statute, rule or regulation of any governmental authority, in each case of clauses (i), (ii) or (iii) above, except as could not individually or in the aggregate, have or result in a material adverse effect.

Representations and Warranties by the Seller. Each of the Seller and Case Credit represents and warrants to each the Purchaser as of the Buyers date hereof and as of the Closing Time referred to in Section 2(b) and agrees with the Purchaser as follows: (ai) Seller owns the Shares and shall transfer to Buyer at the Closing good and valid title to said Shares free and clear of all liens, claims, options, charges and encumbrances whatsoever and upon the consummation Each of the transaction contemplated herein Seller and Case Credit has been duly incorporated and is validly existing as a corporation in good title in the Shares shall vest in Buyer free of all liens, charges, encumbrances and restrictions except those arising standing under the Securities Act laws of 1933the State of Delaware. Each of the Seller and Case Credit is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which its respective ownership or lease of substantial properties or the conduct of its respective businesses requires such qualification and in which the failure to so qualify and be in good standing would materially adversely affect its respective businesses or financial condition. (bii) Seller This Agreement has full power been duly authorized, executed and authority to execute this Agreement and consummate delivered by each of the transactions contemplated hereby, and this Agreement is binding on Seller and enforceable Case Credit. (iii) Each of the Seller and Case Credit acknowledges and confirms to the Purchaser that it has no actual knowledge that the Purchaser has conditioned its willingness to purchase the Direct Purchase Notes as described in accordance with its terms. The execution and delivery Section 2(a) of this Agreement and consummation on the Seller's retention of Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated as an underwriter of the transactions contemplated hereby do not violate or conflict with or constitute a default under any contractUnderwritten Notes and it has no actual knowledge that Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated has conditioned its willingness to underwrite the Underwritten Notes as described above on the Seller's agreement or commitment of any kind to which Seller is a party or by which Seller or Seller’s property is bound, or sell the Direct Purchase Notes to Seller’s knowledge, any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over Seller or any of Seller’s property and when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Seller enforceable against the Seller in accordance with its termsPurchaser as described herein. (civ) There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Seller, threatened against or affecting Neither the Seller or any of its respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the documents hereunder or the Shares or (ii) could, if there were an unfavorable decision, individually or in the aggregate, have or result in a material adverse effect. (d) The Seller nor Case Credit is not (i) in default under or in violation of (and no event has occurred which has not been waived whichits certificate of incorporation or by-laws, with notice or lapse of time or both, would result in a default by the Seller), nor has the Seller received notice of a claim that it is in default under in the performance or that it is observance of any obligation, agreement, covenant or condition contained in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which Seller it or its properties are bound which could have a material adverse effect on the transactions contemplated herein. (v) The execution, delivery and performance of this Agreement will not, subject to obtaining any consents or approvals as may be required under the securities laws of Seller’s properties is boundvarious jurisdictions in the United States and elsewhere, (ii) is result in a breach or violation of any judgment of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any court, arbitrator governmental agency or governmental body, body or (iii) is in violation of any statute, rule court having jurisdiction over the Seller or regulation of any governmental authority, in each case of clauses (i), (ii) or (iii) above, except as could not individually or in the aggregate, have or result in a material adverse effectCase Credit.

Representations and Warranties by the Seller. 11.1 The Seller represents and warrants to the Purchaser that except as otherwise qualified under Clause 12.3.1 below -(i) it has disclosed in good faith all material relevant information relating to the Target, its assets (including the Real Estate Assets) and its liabilities in the virtual Data Room and (ii) each of the Buyers representations and warranties set out in Schedule 9.A and .B (the Warranties) is true, accurate, and complete in all material respects on the date of this Agreement and will be true, accurate and complete in all material respects on the Closing Date, as followsif they were made on such Closing Date (save those Warranties which address matters only as of a particular date, which shall be true, accurate and complete in all material respects as of that date). 11.2 Each of the Warranties of the Seller shall be construed as a separate representation and/or warranty and shall not be limited by the terms of any other Warranties of the Seller. Qualifications given in the Schedules to any of the Warranties of the Seller shall not be deemed to qualify any other warranties unless explicitly repeated with respect to such other warranty, either expressly or by reference. For the avoidance of doubt, the Warranties are made only in respect of facts, matters or circumstances which occurred or arose on or before the Closing Date. 11.3 The Purchaser acknowledges and agrees that: (a) the Warranties are the only representations, warranties or other assurances of any kind given by the Seller owns and it has not entered into this Agreement in reliance on any representations or warranties, whether express or implied, other than the Shares and shall transfer to Buyer at the Closing good and valid title to said Shares free and clear of all liens, claims, options, charges and encumbrances whatsoever and upon the consummation of the transaction contemplated herein good title in the Shares shall vest in Buyer free of all liens, charges, encumbrances and restrictions except those arising under the Securities Act of 1933.Warranties; and (b) the Seller has full power and authority does not make any representation as to execute this Agreement and consummate the transactions contemplated hereby, and this Agreement is binding on Seller and enforceable in accordance with its terms. The execution and delivery of this Agreement and consummation accuracy of the transactions contemplated hereby do not violate forecasts, estimates, projections, statements of intent or conflict with or constitute a default under any contract, agreement or commitment statements of any kind to which Seller is a party or by which Seller or Seller’s property is bound, or to Seller’s knowledge, any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over Seller or any of Seller’s property and when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. (c) There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, opinion provided to the knowledge of the Seller, threatened against or affecting the Seller Purchaser or any of its respective properties before Affiliates, directors, officers, operators, employees, agents or by any court, arbitrator, governmental or administrative agency or regulatory authority professional advisors (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the documents hereunder or the Shares or (ii) could, if there were an unfavorable decision, individually or be it in the aggregate, have Data Room Documents or result in a material adverse effectotherwise). (d) The Seller is not (i) in default under or in violation of (and no event has occurred which has not been waived which, with notice or lapse of time or both, would result in a default by the Seller), nor has the Seller received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which Seller or any of Seller’s properties is bound, (ii) is in violation of any judgment or order of any court, arbitrator or governmental body, or (iii) is in violation of any statute, rule or regulation of any governmental authority, in each case of clauses (i), (ii) or (iii) above, except as could not individually or in the aggregate, have or result in a material adverse effect.

Representations and Warranties by the Seller. The Seller represents and warrants to each of the Buyers Buyer as follows: (a) Seller owns is a corporation validly existing and in good standing under the Shares and shall transfer to Buyer at the Closing good and valid title to said Shares free and clear of all liens, claims, options, charges and encumbrances whatsoever and upon the consummation laws of the transaction contemplated herein good title in State of Delaware with the Shares shall vest in Buyer free of all liens, charges, encumbrances corporate power and restrictions except those arising under authority to conduct its business and to own its assets (including the Securities Act of 1933Assets). (b) Subject to approval of the sale by the Sale Order, Seller has full the power and authority to execute execute, deliver, and perform this Agreement and consummate the other agreements and instruments to be executed and delivered by it in connection with the transactions contemplated herebyhereby and thereby, and this Agreement is binding on Seller and enforceable in accordance with its terms. The has taken all necessary corporate action to authorize the execution and delivery of this Agreement and such other agreements and instruments necessary for the consummation of the transactions contemplated hereby do not violate or conflict Transactions. This Agreement is, and the other agreements and instruments to be executed and delivered by Seller in connection with or constitute a default under any contractthe Transactions shall be, agreement or commitment of any kind to which Seller is a party or by which Seller or Seller’s property is boundthe legal, or to Seller’s knowledgevalid, any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over Seller or any and binding obligations of Seller’s property and when delivered , enforceable in accordance with the terms hereof, will constitute the valid and binding obligation of the Seller enforceable against the Seller in accordance with its their terms. (c) At the Closing, Seller will have, and will transfer to Buyer, good and marketable title to the Assets, free and clear of any and all mortgages, liens, security interests, claims, encumbrances and other interests. (d) In no instance has the eligibility of the Software or Documentation for protection under applicable copyright law been forfeited to the public domain. Seller has not applied for or obtained any registration of any copyright associated with the Software, Documentation or any related intellectual property. (e) SCHEDULE 8(e) hereto sets forth all patents and/or patent applications owned by the Seller as of the date hereof (the "PATENTS"). There is no actionlitigation or proceeding pending concerning the validity or enforceability of the Patents. Other than as set forth on SCHEDULE 8(e), suitthe Seller is the sole and exclusive owner of the entire right, inquirytitle and interest in and to each of the Patents free and clear of any liens, charges, encumbrances and adverse claims, including without limitation pledges, assignments, licenses, shop rights and other interests. The Seller has preserved and maintained all rights in the Patents, including without limitation the payment when due of all maintenance fees and other fees, taxes and other expenses incurred or accrued with respect to the Patents. (f) Seller has used its best efforts, but at a minimum commercially reasonable efforts, to protect the integrity and confidentiality of the trade secrets contained within the Assets. There has been no material violation of its trade secret policies. There have been no unauthorized disclosures of such trade secrets and all such disclosures have been made pursuant to confidentiality agreements commercially reasonable in form and substance and effective to protect the proprietary nature of such trade secrets. There have been no breaches of any such confidentiality agreements. The Software, Documentation and all confidential or proprietary materials pertaining to thereto (1) have at all times been maintained in confidence, (2) have been disclosed by Seller only to employees and consultants having "a need to know" the contents thereof in connection with the performance of their duties to Seller. (g) All personnel, including employees, agents, consultants, and contractors, who have contributed to or participated in the conception and development of the Software and the Documentation on behalf of Seller have been party to a "work-for-hire" arrangement or agreement with Seller, in accordance with applicable federal and state law, that has accorded and/or assigned Seller full, effective, exclusive, and original ownership of all tangible and intangible property thereby arising, and have executed all necessary instruments of assignment in favor of Seller necessary to convey to Seller full, effective, and exclusive ownership of all tangible and intangible property thereby arising. SCHEDULE 8(g) identifies all such agreements or instruments referenced in the preceding sentence as well as all employment, consulting or other agreements with any individuals who have contributed to or participated in the conception and development of the Software, the Documentation or any other intellectual property rights of the Seller. All employees and/or officers of the Seller (whether or not presently employed by Seller) have executed Seller's Employee Intellectual Property Agreement in the form attached hereto EXHIBIT E. (h) The Documentation includes the source code, system documentation, statements of principles of operation, and schematics for the Software as well as any pertinent commentary or explanation that may be necessary to render such materials understandable and usable by a trained computer programmer. The Documentation also includes any program (including compilers), "workbenches," tools, and higher level (or "proprietary") language used for the development, maintenance, and implementation of the Software. (i) Neither the Software, the Documentation, the Trademarks, the Domain Names, nor any other Asset any infringes, violates or misappropriates in any manner any United States or foreign patent, copyright, trade secret, license, know-how, trademark, trade name, or other proprietary or intellectual property right of any third person. Seller has not received any notice of, nor is Seller aware of, any conflict with any asserted trademark, trade name, patent, trade secret, license, copyright, know-how, or other proprietary right of violationany other person. (j) Other than as set forth on SCHEDULE 8(j) hereto, proceeding the Software is and will be free from all viruses, bugs, worms, trap doors, back doors, built-in or investigation use driven destruction mechanisms, injurious or damaging algorithms, time bombs, trojan horses, calendar or date computing problems or other deficiencies that can disable or adversely affect the performance of the Software. The Software conforms in all material respects with the specifications and performance standards set forth in the Documentation, contains no known material defects and is compatible with operating systems commonly used in the industry. The Software includes all source code and object code prepared in connection with or created for the Software including the most current and all previous versions, all updates, enhancements, bug fixes and/or any other materials associated with the Software. (k) Except as set forth on SCHEDULE 8(k) hereto, the Software, Documentation and other Assets contain no source code, object code, or other programming materials or intellectual property in which any third-party can claim superior, joint or common ownership or other interest in. The Software and Documentation do not contain derivative works of any programming or other materials not owned in their entirety by Seller and included in the Assets. (l) SCHEDULE 8(l) hereto is a complete list of customers that have purchased products or services from the Seller since the commencement of its business. (m) Except as set forth in SCHEDULE 8(m) hereto there are no material licenses, permits, authorizations, consents and franchises necessary to own the Assets or to conduct the business substantially as presently conducted by Seller. (n) Except as may be required by the Bankruptcy Court pursuant to applicable law, no consents, approvals, or authorizations of or filings with any governmental body or authority are required on the part of Seller in connection with the execution, delivery, or performance of this Agreement. (o) Except for Seller's Chapter 11 Petition before the Bankruptcy Court and as set forth in SCHEDULE 8(o) hereto, there are no claims, actions, suits, proceedings, or investigations pending before any court, governmental body, or arbitration tribunal or, to the knowledge best of the Seller's knowledge, threatened against Seller nor has Seller received any written notice of infringement or affecting conflict with the asserted rights of others with respect to the Software, Documentation and/or any of the other Assets or otherwise related to the business of Seller. Except as disclosed in SCHEDULE 8(o) hereto, there is no order, decree or judgment of any kind in existence enjoining or restraining Seller or any of its directors, officers, or employees (in their respective properties before capacities as such) or by requiring any court, arbitrator, governmental of them to take or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability refrain from taking any action of any of kind relative to the documents hereunder Assets or the Shares or (ii) could, if there were an unfavorable decision, individually or in the aggregate, have or result in a material adverse effectthis Agreement. (dp) The use, operation, ownership, and possession of the Assets (including without limitation the Software and Documentation) as presently used, operated, owned and possessed by Seller is have not and do not violate or infringe any applicable laws, statutes, ordinances, rules, regulations, or directives, whether legislatively, judicially, or administratively promulgated, including without limitation those relating to health, safety, or the environment. (iq) Neither this Agreement, the schedules and exhibits attached hereto, the certificates furnished (or other documents executed by Seller and delivered to Buyer) in default under connection herewith, nor the materials and responses provided by Buyer to Seller in connection with Buyer's due diligence contain or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in violation order to make the statements contained herein or therein not misleading. (r) Except as disclosed on SCHEDULE 8(r), all tax returns of every kind (including without limitation returns of real and no event personal property taxes, federal and state income taxes, franchise taxes, intangible taxes, withholding taxes, and FICA and unemployment compensation taxes) relating to the Seller's business that are due to have been filed in accordance with any applicable law have been duly filed and all taxes shown to be due on such returns have been paid in full. Seller has occurred which has not been waived which, with notice or lapse never had any of time or both, would result its tax returns in a default any year audited by the Seller), nor has the Seller received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement Internal Revenue Service or any other agreement governmental authority. There are no pending or instrument threatened deficiency assessments with respect to which it is a party the Seller's federal, state or local taxes. There are no tax liens imposed by which Seller or any of Seller’s properties is bound, (ii) is in violation of any judgment or order of any court, arbitrator or governmental body, or (iii) is in violation of any statute, rule or regulation of any governmental authorityauthority outstanding against the assets, in each case properties or business of clauses (i), (ii) or (iii) above, except as could not individually or in the aggregate, have or result in a material adverse effectSeller.