Common use of Seller Representations and Covenants Clause in Contracts

Seller Representations and Covenants. (a) Seller is a corporation duly organized and validly existing under the laws of the State of Delaware and is in good standing under such laws with its principal executive office located in the State of California. The Seller has all requisite corporate power and authority to own, lease and operate its properties and assets, and to carry on its business as presently conducted. The Seller is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the nature of its business requires such qualification, except where failure to so qualify would not have a material adverse effect on the Seller. (b) There are 200,000,000 shares of Seller's Common Stock, $.001 par value per share ("Common Stock") authorized and approximately 97,719,335 outstanding as of December 17, 2002 and there are 50,000,000 shares of Seller's Preferred Stock, $.001 par value per share ("Preferred Stock") authorized and --------------- approximately 387,471 outstanding as of that same date. All issued and outstanding shares of our Common and Preferred Stock have been authorized and validly issued and are fully paid and non-assessable. The Class A Preferred Stock shall be convertible, at the Buyer's election, into a predetermined number of shares of Common Stock, calculated by multiplying the number of Shares of Class A Preferred Stock purchased by the Buyer by 2. After conversion, the Seller shall deliver replacement Common Stock certificates to the Buyer within 10 business days after written notice of conversion is sent to the Seller's address by the Buyer. Upon receipt of the Common Stock certificates after conversion, the Class A Preferred Stock shall be canceled on the stock transfer records maintained by the Seller's stock transfer agent. The Class A Preferred Stock subscribed hereby also shall carry cash dividend rights equal to a 10% cumulative dividend per annum, subordinated to any other dividend rights held by the Seller's outstanding shares of Class A Preferred Stock (the "Dividends"), with such Dividends being payable only out of the Seller's earnings before interest, taxes, depreciation and administrative expenses of the Seller ("EBIDTA"). (c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit, under, any provision of the Articles of Incorporation, and any amendments thereto, By-Laws, Stockholders Agreements and any amendments thereto of the Seller or any material mortgage, indenture, lease or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law ordinance, rule or regulation applicable to the Seller, its properties or assets. There is no action, suit or proceeding pending, or to the knowledge of the Seller, threatened against the Seller, before any court or arbitrator or any government body, agency or official, which would have a material adverse affect on Seller=s operations or financial condition. (d) The Seller is subject to the reporting requirements of Sections 13 or 15(d) of the Securities and Exchange Act. The Preferred Stock when issued, will be issued in compliance with all applicable U.S. federal and state securities laws. The execution and delivery by the Seller of this Agreement and the issuance of the Preferred Stock will not contravene or constitute a default under any provision of applicable law or regulation. The Seller is in compliance with and conforms with, and will continue to comply with and conform with, all securities laws, state and federal, ordinances, rules, regulations, orders, restrictions and all other legal requirements of any domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of its businesses or the ownership of its properties, including but not limited to all laws concerning investor relations, public relations, disclosures under the securities laws and broker-dealers statutes and laws. (e) There is no material fact known to the Seller that has not been publicly disclosed by the Seller or disclosed in writing to the Buyer which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or on the earnings, business affairs, properties or assets of the Seller, or could reasonably be expected to materially and adversely affect the ability of the Seller to perform its obligations pursuant to this Agreement. The information furnished by the Seller to Buyer for purposes of or in connection with this Agreement or any transaction contemplated hereby does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading. (f) No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Seller is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Preferred Stock or Preferred Stock, or the consummation of any other transaction contemplated hereby, except the filing with the SEC and certain other states of a Form D Notice of Sale of Securities. (g) There is no action, proceeding or investigation pending, or to the Seller's knowledge, threatened, against the Seller which might result, either individually or in the aggregate, in any material adverse change in the business, prospects, conditions, affairs or operations of the Seller. The Seller is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit proceeding or investigation by the Seller currently pending or which the Seller intends to initiate. The SEC has not issued any order suspending trading in the Seller's Preferred Stock and the Seller is not under investigation by the SEC or the National Association of Securities Dealers, and there are no proceedings pending or threatened before either regulatory body. (h) There are no other material outstanding debt or equity securities presently convertible into Preferred Stock. (j) The issuance, sale and delivery of the Preferred Stock has been duly authorized by all required corporate action on the part of the Seller, and when issued, sold and delivered in accordance with the terms hereof and thereof for the consideration expressed herein and therein, will be duly and validly issued, fully paid and non-assessable. There are no pre-emptive rights of any shareholder of Seller. (k) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally. The Seller has all requisite right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. All corporate action on the part of the Seller, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Preferred Stock has been taken. Upon their issuance to the Buyer, the Preferred Stock will be validly issued and non-assessable, and will be free of any liens or encumbrances. (l) Seller acknowledges and agrees that the transactions contemplated by this the Agreement have taken place solely and exclusively within the State of California.

Seller Representations and Covenants. (a) Seller is a corporation duly organized and validly existing under the laws of the State of Delaware and is in good standing under such laws with its principal executive office located in the State of California. The Seller has all requisite corporate power and authority to own, lease and operate its properties and assets, and to carry on its business as presently conducted. The Seller is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the nature of its business requires such qualification, except where failure to so qualify would not have a material adverse effect on the Seller. (b) There are 200,000,000 shares of Seller's Class A Common Stock, $.001 par value per share ("Class A Common Stock") authorized and approximately 97,719,335 149,125,389 outstanding as of December 17March 31, 2002 2002; and there is 100,000 shares of Seller's Class B Common Stock, $.001 par value per share ("Class B Common Stock") authorized and 100,000 shares outstanding as of March 31, 2002; and there are 50,000,000 shares of Seller's Preferred Stock, $.001 par value per share ("Preferred Stock") authorized and --------------- approximately 387,471 337,471 shares ---------------- outstanding as of that same date. All issued and outstanding shares of our Common and Preferred Stock have been authorized and validly issued and are fully paid and non-assessable. The Class A Preferred Stock shall be convertible, at the Buyer's election, into a predetermined number of shares of Common Stock, calculated by multiplying the number of Shares of Class A Preferred Stock purchased by the Buyer by 22 (i.e. 100,000 shares). After conversion, the Seller shall deliver replacement Common Stock certificates to the Buyer within 10 business days after written notice of conversion is sent to the Seller's address by the Buyer. Upon receipt of the Common Stock certificates after conversion, the Class A Preferred Stock shall be canceled on the stock transfer records maintained by the Seller's stock transfer agent. The Class A Preferred Stock subscribed hereby also shall carry cash dividend rights equal to a 10% cumulative dividend per annum, subordinated to any other dividend rights held by the Seller's outstanding shares of Class A Preferred Stock (the "Dividends"), with such Dividends being payable only out of the Seller's earnings before interest, taxes, depreciation and administrative expenses of the Seller ("EBIDTA"). (c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit, under, any provision of the Articles of Incorporation, and any amendments thereto, By-Laws, Stockholders Agreements and any amendments thereto of the Seller or any material mortgage, indenture, lease or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law ordinance, rule or regulation applicable to the Seller, its properties or assets. There is no action, suit or proceeding pending, or to the knowledge of the Seller, threatened against the Seller, before any court or arbitrator or any government body, agency or official, which would have a material adverse affect on Seller=s operations or financial condition. (d) The Seller is subject to the reporting requirements of Sections 13 or 15(d) of the Securities and Exchange Act. The Preferred Stock when issued, will be issued in compliance with all applicable U.S. federal and state securities laws. The execution and delivery by the Seller of this Agreement and the issuance of the Preferred Stock will not contravene or constitute a default under any provision of applicable law or regulation. The Seller is in compliance with and conforms with, and will continue to comply with and conform with, all securities laws, state and federal, ordinances, rules, regulations, orders, restrictions and all other legal requirements of any domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of its businesses or the ownership of its properties, including but not limited to all laws concerning investor relations, public relations, disclosures under the securities laws and broker-dealers statutes and laws. (e) There is no material fact known to the Seller that has not been publicly disclosed by the Seller or disclosed in writing to the Buyer which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or on the earnings, business affairs, properties or assets of the Seller, or could reasonably be expected to materially and adversely affect the ability of the Seller to perform its obligations pursuant to this Agreement. The information furnished by the Seller to Buyer for purposes of or in connection with this Agreement or any transaction contemplated hereby does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading. (f) No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Seller is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Preferred Stock or Preferred Stock, or the consummation of any other transaction contemplated hereby, except the filing with the SEC and certain other states of a Form D Notice of Sale of Securities. (g) There is no action, proceeding or investigation pending, or to the Seller's knowledge, threatened, against the Seller which might result, either individually or in the aggregate, in any material adverse change in the business, prospects, conditions, affairs or operations of the Seller. The Seller is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit proceeding or investigation by the Seller currently pending or which the Seller intends to initiate. The SEC has not issued any order suspending trading in the Seller's Preferred Stock and the Seller is not under investigation by the SEC or the National Association of Securities Dealers, and there are no proceedings pending or threatened before either regulatory body. (h) There are no other material outstanding debt or equity securities presently convertible into Preferred Stock. (ji) The issuance, sale and delivery of the Preferred Stock has been duly authorized by all required corporate action on the part of the Seller, and when issued, sold and delivered in accordance with the terms hereof and thereof for the consideration expressed herein and therein, will be duly and validly issued, fully paid and non-assessable. There are no pre-emptive rights of any shareholder of Seller. (kj) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally. The Seller has all requisite right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. All corporate action on the part of the Seller, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Preferred Stock has been taken. Upon their issuance to the Buyer, the Preferred Stock will be validly issued and non-assessable, and will be free of any liens or encumbrances. (lk) Seller acknowledges and agrees that the transactions contemplated by this the Agreement have taken place solely and exclusively within the State of California.

Seller Representations and Covenants. (a) Seller is a corporation duly organized and validly existing under the laws of the State of Delaware and is in good standing under such laws with its principal executive office located in the State of California. The Seller has all requisite corporate power and authority to own, lease and operate its properties and assets, and to carry on its business as presently conducted. The Seller is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the nature of its business requires such qualification, except where failure to so qualify would not have a material adverse effect on the Seller. (b) There are 200,000,000 shares of Seller's ’s Class A Common Stock, $.001 par value per share ("“Class A Common Stock"”) authorized and approximately 97,719,335 149,125,389 outstanding as of December 17March 31, 2002 2002; and there is 100,000 shares of Seller’s Class B Common Stock, $.001 par value per share (“Class B Common Stock”) authorized and 100,000 shares outstanding as of March 31, 2002; and there are 50,000,000 shares of Seller's Preferred Stock, $.001 par value per share ("Preferred Stock") authorized and --------------- approximately 387,471 337,471 shares outstanding as of that same date. All issued and outstanding shares of our Common and Preferred Stock have been authorized and validly issued and are fully paid and non-assessable. The Class A Preferred Stock shall be convertible, at the Buyer's ’s election, into a predetermined number of shares of Common Stock, calculated by multiplying the number of Shares of Class A Preferred Stock purchased by the Buyer by 22 (i.e. 100,000 shares). After conversion, the Seller shall deliver replacement Common Stock certificates to the Buyer within 10 business days after written notice of conversion is sent to the Seller's ’s address by the Buyer. Upon receipt of the Common Stock certificates after conversion, the Class A Preferred Stock shall be canceled on the stock transfer records maintained by the Seller's ’s stock transfer agent. The Class A Preferred Stock subscribed hereby also shall carry cash dividend rights equal to a 10% cumulative dividend per annum, subordinated to any other dividend rights held by the Seller's outstanding shares of Class A Preferred Stock (the "Dividends"), with such Dividends being payable only out of the Seller's earnings before interest, taxes, depreciation and administrative expenses of the Seller ("EBIDTA"). (c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit, under, any provision of the Articles of Incorporation, and any amendments thereto, By-Laws, Stockholders Agreements and any amendments thereto of the Seller or any material mortgage, indenture, lease or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law ordinance, rule or regulation applicable to the Seller, its properties or assets. There is no action, suit or proceeding pending, or to the knowledge of the Seller, threatened against the Seller, before any court or arbitrator or any government body, agency or official, which would have a material adverse affect on Seller=s 's operations or financial condition. (d) The Seller is subject to the reporting requirements of Sections 13 or 15(d) of the Securities and Exchange Act. The Preferred Stock when issued, will be issued in compliance with all applicable U.S. federal and state securities laws. The execution and delivery by the Seller of this Agreement and the issuance of the Preferred Stock will not contravene or constitute a default under any provision of applicable law or regulation. The Seller is in compliance with and conforms with, and will continue to comply with and conform with, all securities laws, state and federal, ordinances, rules, regulations, orders, restrictions and all other legal requirements of any domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of its businesses or the ownership of its properties, including but not limited to all laws concerning investor relations, public relations, disclosures under the securities laws and broker-dealers statutes and laws. (e) There is no material fact known to the Seller that has not been publicly disclosed by the Seller or disclosed in writing to the Buyer which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or on the earnings, business affairs, properties or assets of the Seller, or could reasonably be expected to materially and adversely affect the ability of the Seller to perform its obligations pursuant to this Agreement. The information furnished by the Seller to Buyer for purposes of or in connection with this Agreement or any transaction contemplated hereby does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading. (f) No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Seller is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Preferred Stock or Preferred Stock, or the consummation of any other transaction contemplated hereby, except the filing with the SEC and certain other states of a Form D Notice of Sale of Securities. (g) There is no action, proceeding or investigation pending, or to the Seller's knowledge, threatened, against the Seller which might result, either individually or in the aggregate, in any material adverse change in the business, prospects, conditions, affairs or operations of the Seller. The Seller is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit proceeding or investigation by the Seller currently pending or which the Seller intends to initiate. The SEC has not issued any order suspending trading in the Seller's Preferred Stock and the Seller is not under investigation by the SEC or the National Association of Securities Dealers, and there are no proceedings pending or threatened before either regulatory body. (h) There are no other material outstanding debt or equity securities presently convertible into Preferred Stock. (ji) The issuance, sale and delivery of the Preferred Stock has been duly authorized by all required corporate action on the part of the Seller, and when issued, sold and delivered in accordance with the terms hereof and thereof for the consideration expressed herein and therein, will be duly and validly issued, fully paid and non-assessable. There are no pre-emptive rights of any shareholder of Seller. (kj) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally. The Seller has all requisite right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. All corporate action on the part of the Seller, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Preferred Stock has been taken. Upon their issuance to the Buyer, the Preferred Stock will be validly issued and non-assessable, and will be free of any liens or encumbrances. (lk) Seller acknowledges and agrees that the transactions contemplated by this the Agreement have taken place solely and exclusively within the State of California.

Seller Representations and Covenants. (a) Seller is a corporation duly organized and validly existing under the laws of the State of Delaware and is in good standing under such laws with its principal executive office located in the State of California. The Seller has all requisite corporate power and authority to own, lease and operate its properties and assets, and to carry on its business as presently conducted. The Seller is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the nature of its business requires such qualification, except where failure to so qualify would not have a material adverse effect on the Seller. (b) There are 200,000,000 400,000,000 shares of Seller's Common Stock, $.001 par value per share ("Common Stock") authorized and approximately 97,719,335 137,283,905 outstanding as of December 17, 2002 the date of this Agreement and there are 50,000,000 shares of Seller's Preferred Stock, $.001 par value per share ("Preferred Stock") authorized and --------------- approximately 387,471 11,575,000 outstanding as of that same date. All issued and outstanding shares of our Common and Preferred Stock have been authorized and validly issued and are fully paid and non-assessable. The Class A Preferred Stock shall be convertible, at the Buyer's election, into a predetermined number of shares of Common Stock, calculated by multiplying the number of Shares of Class A Preferred Stock purchased by the Buyer by 2. After conversion, the Seller shall deliver replacement Common Stock certificates to the Buyer within 10 business days after written notice of conversion is sent to the Seller's address by the Buyer. Upon receipt of the Common Stock certificates after conversion, the Class A Preferred Stock shall be canceled on the stock transfer records maintained by the Seller's stock transfer agent. The Class A Preferred Stock subscribed hereby also shall carry cash dividend rights equal to a 10% cumulative dividend per annum, subordinated to any other dividend rights held by the Seller's outstanding shares of Class A Preferred Stock (the "Dividends"), with such Dividends being payable only out of the Seller's earnings before interest, taxes, depreciation and administrative expenses of the Seller ("EBIDTA"). (c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit, under, any provision of the Articles of Incorporation, and any amendments thereto, By-Laws, Stockholders Agreements and any amendments thereto of the Seller or any material mortgage, indenture, lease or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law ordinance, rule or regulation applicable to the Seller, its properties or assets. There is no action, suit or proceeding pending, or to the knowledge of the Seller, threatened against the Seller, before any court or arbitrator or any government body, agency or official, which would have a material adverse affect on Seller=s 's operations or financial condition. (d) The Seller is subject to the reporting requirements of Sections 13 or 15(d) of the Securities and Exchange Act. The Preferred Stock when issued, will be issued in compliance with all applicable U.S. federal and state securities laws. The execution and delivery by the Seller of this Agreement and the issuance of the Preferred Stock will not contravene or constitute a default under any provision of applicable law or regulation. The Seller is in compliance with and conforms with, and will continue to comply with and conform with, all securities laws, state and federal, ordinances, rules, regulations, orders, restrictions and all other legal requirements of any domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of its businesses or the ownership of its properties, including but not limited to all laws concerning investor relations, public relations, disclosures under the securities laws and broker-dealers statutes and laws. (e) There is no material fact known to the Seller that has not been publicly disclosed by the Seller or disclosed in writing to the Buyer which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or on the earnings, business affairs, properties or assets of the Seller, or could reasonably be expected to materially and adversely affect the ability of the Seller to perform its obligations pursuant to this Agreement. The information furnished by the Seller to Buyer for purposes of or in connection with this Agreement or any transaction contemplated hereby does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading. (f) No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Seller is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Preferred Stock or Preferred Stock, or the consummation of any other transaction contemplated hereby, except the filing with the SEC and certain other states of a Form D Notice of Sale of Securities. (g) There is no action, proceeding or investigation pending, or to the Seller's knowledge, threatened, against the Seller which might result, either individually or in the aggregate, in any material adverse change in the business, prospects, conditions, affairs or operations of the Seller. The Seller is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit proceeding or investigation by the Seller currently pending or which the Seller intends to initiate. The SEC has not issued any order suspending trading in the Seller's Preferred Stock and the Seller is not under investigation by the SEC or the National Association of Securities Dealers, and there are no proceedings pending or threatened before either regulatory body. (h) There are no other material outstanding debt or equity securities presently convertible into Preferred Stock. (j) The issuance, sale and delivery of the Preferred Stock has been duly authorized by all required corporate action on the part of the Seller, and when issued, sold and delivered in accordance with the terms hereof and thereof for the consideration expressed herein and therein, will be duly and validly issued, fully paid and non-assessable. There are no pre-emptive rights of any shareholder of Seller. (k) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally. The Seller has all requisite right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. All corporate action on the part of the Seller, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Preferred Stock has been taken. Upon their issuance to the Buyer, the Preferred Stock will be validly issued and non-assessable, and will be free of any liens or encumbrances. (l) Seller acknowledges and agrees that the transactions contemplated by this the Agreement have taken place solely and exclusively within the State of California.