Common use of Borrower Clause in Contracts

Borrower. The Borrower hereby represents and warrants to the Custodian and the Agents that: (a) The Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual Obligation.

Borrower. The Borrower hereby represents and warrants to the Custodian and the Agents thatLender as follows: (a) The Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite organizational powercorporate authority and power to execute and deliver this Agreement and the Loan Documents and to perform its obligations thereunder. The execution and delivery of this Agreement and the Loan Documents, as well as the consummation of the transactions contemplated hereby and has thereby, have been or will be duly and validly authorized by all governmental licenses, authorizations, consents necessary corporate action on the part of Borrower and approvals, no other action or proceedings on the part of Borrower are or will be necessary to own its assets authorize the execution, delivery and carry performance of this Agreement or the Loan Documents or the transactions contemplated hereby and thereby on its business as now being or as proposed to be conducted, except where the lack part of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of LawBorrower. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by Borrower and, assuming that this Agreement constitutes the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of Lender, constitutes the legal, valid, and binding obligation of Borrower, enforceable against the Borrower in accordance with its terms, subject terms except to the Bankruptcy extent that the enforceability thereof may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and (b) general principles of equity (the “Enforceability Exceptions”). Upon the execution and delivery by Borrower of the Promissory Note, the Promissory Note will constitute the legal, valid, and binding obligations of Borrower, enforceable against it in accordance with its terms except to the extent that the enforceability thereof may be limited by the Enforceability Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by or the Borrower Promissory Note nor the consummation and performance of any of the transactions contemplated hereby or thereby by the Borrower will violate in any material respect any existing applicable law, rule, regulation, judgment, order or decree of its obligations set forth any governmental authority having jurisdiction over Borrower, provided, however, that no representation or warranty is made in this Agreement will (iSection 4.1(c) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a partymatters that would not, individually or (iii) except for the Liens created pursuant to the Security Documents, result in the creation aggregate, reasonably be expected to materially delay or imposition of any Lien upon any Property of the materially impair Borrower, pursuant ’s ability to the terms of any such material Contractual Obligationconsummate transactions contemplated hereby.

Borrower. The Borrower hereby represents covenants and warrants to that, at the Custodian execution hereof and at all times throughout the Agents thatduration hereof: (a) The Borrower (i) will join with Secured Party to file, wherever Secured Party deems appropriate, financing statements in the form and content required by Secured Party, describing the Collateral in the same manner as it is duly organized, validly existing described herein and in good standing under the laws of the jurisdiction of its organization, (ii) has Borrower will pay all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack costs of such licenses, (A) Section 111 filing. From time to time at the request of EESASecured Party, Borrower shall execute one or more financing statements and such other documents and do such other acts and things, all as implemented by any guidance or regulations issued by UST thereunderSecured Party may reasonably request, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is regarding the Security Interest in compliance in all material respects with all Requirements of Lawthe Collateral. (b) The Borrower has all necessary organizational power, the requisite corporate authority to enter into this Agreement and legal right otherwise to execute, deliver and perform carry out its obligations under this Agreementhereunder. The execution, delivery and performance by the Borrower of this Agreement has and the filings contemplated therein have been duly authorized by all necessary organizational action on its partthe part of Borrower and no further action is required by Borrower. This Agreement has been duly and validly executed and delivered by Borrower. This Agreement constitutes the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its termsterms except as such enforceability may be limited by applicable bankruptcy, subject insolvency, reorganization and similar laws of general application relating to or affecting the Bankruptcy Exceptionsrights and remedies of creditors and by general principles of equity. Borrower is the sole owner of the Collateral, free and clear of any liens, security interests, encumbrances, rights or claims, and is fully authorized to grant the Security Interests. Borrower shall at all times maintain the liens and Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. (c) No consentSecured Party may examine and inspect the Collateral at any time, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documentswherever located. (d) Neither Borrower shall deliver to Xxxxxx Xxxxx, Esq., the execution escrow agent selected by mutual agreement of Lender and delivery Borrower a certificate representing three million sixty-one thousand two hundred twenty-four (3,061,224) shares of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charterBiovest common stock, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except be held for the Liens created pursuant to the Security Documents, result in the creation or imposition benefit of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual ObligationLender as Collateral hereunder.

Borrower. The Borrower hereby represents and warrants to (a) A certified copy of the Custodian and the Agents thatfollowing documents: (a) The Borrower (i) is duly organized, validly existing and in good standing under the laws Decree by the National Executive Power (Poder Ejecutivo de la Nación) of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses,Argentina: (A) Section 111 approving or authorizing the Ministry of EESAEconomy or the relevant authority to approve the terms of the Amendment Documents (or, as implemented by any guidance or regulations issued by UST thereunderif applicable, including 31 CFR 30 and the CP Amendment Documents only); and (B) EAWAempowering officials to execute the Amendment Documents (or, as implemented if applicable, the CP Amendment Documents only) to which it is a party and any other document related thereto. (ii) if the following approvals or authorisations are not covered by any guidance or regulation the Decree referred to in paragraph (a) above, a resolution issued by UST thereunder the Ministry of Economy or the relevant authority appointed by the National Executive Power of Argentina, to the extent that the powers to grant such approvals or authorisations would have been delegated by the National Executive Power of Argentina: (A) approving the terms of, and the transactions contemplated by, the Amendment Documents (vor, if applicable, the CP Amendment Documents only) and resolving that the Borrower execute the Amendment Documents (or, if applicable, the CP Amendment Documents only) to which it is a party; (B) authorising a specified person or persons to execute the Amendment Documents (or, if applicable, the CP Amendment Documents only) to which the Borrower is a party on behalf of the Borrower; and (A) authorising a specified person or persons, on behalf of the Borrower, to sign and/or dispatch all documents and notices to be signed and/or dispatched by the Borrower under or in compliance in all material respects connection with all Requirements of Lawthe Amendment Documents (or, if applicable, the CP Amendment Documents only) to which it is a party. (b) The certificate issued by the Ministry of Economy of Argentina (and/or, if applicable, the other relevant ministry) attaching each copy document (with English translations) provided by it or on its behalf under this Part A of Schedule 2 and certifying that: (i) the documents under paragraph (a) above are all the Authorisations necessary for the validity and enforceability of, and for the Borrower has all necessary organizational power, authority and legal right to execute, deliver deliver, and perform its obligations obligation under this Agreement and the Amended and Restated Facility Agreement. The execution; (ii) each copy document provided by it or on its behalf under this Part A of Schedule 2 is true, delivery complete and performance by in full force and effect as at a date no earlier than the Borrower date of this Agreement and none of such documents has been further amended; (iii) this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly approved in accordance with the laws of Argentina and validly executed is valid, binding and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to ; (iv) the Bankruptcy ExceptionsFacility is within the borrowing limits permitted under the laws of Argentina; and (v) the terms of Decree 882 and Resolution No. 126/2018 issued by the Ministry of Energy have been complied with or will be complied with timely. (c) No consentThe certificate issued by the Ministry of Economy of Argentina and signed by the Minister or an officer duly authorised by the Minister, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant as to the Security Documents. authority, incumbency and specimen signature of each person who will execute the Amendment Documents (dor, if applicable, the CP Amendment Documents only) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a partyparty and the statements, or reports, certificates and other documents required thereunder on behalf of the Ministry of Economy of Argentina and that will otherwise act as a representative of the Ministry of Economy of Argentina in relation to the implementation and administration of the Amendment Documents (iiior, if applicable, the CP Amendment Documents only). (d) except for The opinion of the Liens created Central Bank pursuant to Article 61 of Law No. 24,156 of Argentina stating that this Agreement and the Security Documents, result in transactions contemplated hereunder do not have an adverse impact on the creation or imposition balance of any Lien upon any Property payments of the Borrower, pursuant to the terms of any such material Contractual ObligationArgentina.

Borrower. The Borrower hereby represents In addition to and warrants to the Custodian and the Agents that: (a) The Borrower (i) is duly organized, validly existing and in good standing under the laws without limitation of the jurisdiction of its organization, (iirights and(d) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in Section 2.22, the U.K. Borrower hereby irrevocably designates, appoints and empowers the U.S. Borrower, and the U.S. Borrower hereby accepts such appointment, as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any suit, action or proceeding arising out of or relating to this Agreement will or any other Loan Document. Such service may be made by mailing or delivering a copy of such process to the U.K. Borrower in care of the U.S. Borrower at the U.S. Borrower’s address used for purposes of giving notices under Section 11.11, and the U.K. Borrower hereby irrevocably authorizes and directs the U.S. Borrower to accept such service on its behalf. In the event the U.K. Borrower or any of its assets has or hereafter acquires, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Loan Document, any immunity from jurisdiction, legal proceedings, attachment (i) conflict with whether before or result in a breach of after judgment), execution, judgment or setoff, the U.K. Borrower hereby irrevocably agrees to not claim and hereby irrevocably and unconditionally waives such immunity. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBYSECTION 11.15 IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO (WHETHER FOUNDED IN CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) the charterCERTIFIES THAT NO OTHER PARTY AND NO RELATED PERSON OF ANY OTHER PARTY HAS REPRESENTED, articles of organizationEXPRESSLY OR OTHERWISE, by lawsTHAT SUCH OTHER PARTY WOULD NOT, partnership agreement (including the Partnership Agreement)IN THE EVENT OF LITIGATION, operating agreement or similar organizational document of the Borrower, or SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) any Requirement of LawACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a partyAS APPLICABLE, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual ObligationBY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.

Borrower. The Borrower hereby represents covenants and warrants to that, at the Custodian execution hereof and at all times throughout the Agents thatduration hereof: (a) The Borrower (i) will join with Secured Party to file, wherever Secured Party deems appropriate, financing statements in the form and content required by Secured Party, describing the Collateral in the same manner as it is duly organized, validly existing described herein and in good standing under the laws of the jurisdiction of its organization, (ii) has Borrower will pay all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack costs of such licenses, (A) Section 111 filing. From time to time at the request of EESASecured Party, Borrower shall execute one or more financing statements and such other documents and do such other acts and things, all as implemented by any guidance or regulations issued by UST thereunderSecured Party may reasonably request, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is regarding the Security Interest in compliance in all material respects with all Requirements of Lawthe Collateral. (b) The Borrower has all necessary organizational power, the requisite corporate authority to enter into this Agreement and legal right otherwise to execute, deliver and perform carry out its obligations under this Agreementhereunder. The execution, delivery and performance by the Borrower of this Agreement has and the filings contemplated therein have been duly authorized by all necessary organizational action on its partthe part of Borrower and no further action is required by Borrower. This Agreement has been duly and validly executed and delivered by Borrower. This Agreement constitutes the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its termsterms except as such enforceability may be limited by applicable bankruptcy, subject insolvency, reorganization and similar laws of general application relating to or affecting the Bankruptcy Exceptionsrights and remedies of creditors and by general principles of equity. Borrower is the sole owner of the Collateral, free and clear of any liens, security interests, encumbrances, rights or claims, and is fully authorized to grant the Security Interests. Borrower shall at all times maintain the liens and Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. (c) No consentSecured Party may examine and inspect the Collateral at any time, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documentswherever located. (d) Neither the execution Borrower shall deliver to an escrow agent selected by mutual agreement of Lender and delivery Borrower a certificate representing Six Million Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six (6,666,666) shares of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth Biovest common stock, to be held in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except pledge for the Liens created pursuant to the Security Documents, result in the creation or imposition benefit of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual ObligationLender as Collateral hereunder.

Borrower. The Borrower hereby represents has been duly organized and warrants to the Custodian and the Agents that: (a) The Borrower (i) is duly organized, validly existing and exists in good standing as a corporation, limited liability company or limited partnership, as applicable, under the laws of the jurisdiction of its organizationincorporation, organization or formation. Borrower (iia) has all requisite organizational power, authority, legal right, licenses and franchises, (b) is duly qualified to do business in all jurisdictions necessary, and (c) has been duly authorized by all governmental licensesnecessary action, authorizationsto (w) own, consents lease and approvalsoperate its properties and assets, necessary to own its assets and carry on (x) conduct its business as now being or as proposed to be presently conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (By) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect Loan Documents to which the Borrower it is a party, or including the pledge of the Collateral, except, in the cases of clauses (iiia), (b), (c)(w) except for and (c)(x), where the Liens created failure to do so could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is set forth in the preamble and signature pages of this Agreement. Borrower’s location (within the meaning of Article 9 of the UCC) is set forth on Schedule 2 attached hereto, and the offices where Borrower keeps all records (within the meaning of Article 9 of the UCC) relating to the Collateral (other than property management offices maintained pursuant to the Security Management Agreements) and the Borrower’s chief executive office are as of the Closing Date at the addresses of Borrower referred to in Schedule 2. Borrower has not changed its name or location (within the meaning of Article 9 of the UCC) within the twelve (12) months preceding the Closing Date. As of the Closing Date, Borrower’s organizational identification number and its tax identification number are set forth on Schedule 2 attached hereto. Borrower has no subsidiaries. The fiscal year of Borrower is the calendar year. As of the Closing Date, Borrower has no Indebtedness, Contractual Obligations or Investments other than (a) the Loan Documents, result in (b) the creation or imposition of any Lien upon any Property Indebtedness, Contractual Obligations and Investments described on Schedule 7.01 attached hereto and (c) Indebtedness, Contractual Obligations and Investments permitted under Section 8.05. As of the BorrowerClosing Date, pursuant to the terms of Borrower does not have any such material Contractual Obligationtrade names other than as described on Schedule 6 attached hereto.

Borrower. The This provision does not constitute a waiver of any Events of Default or an agreement by Lender to permit any late payments whatsoever. In no event will the interest rate on this Note exceed the highest rate permissible under any law which a court of competent jurisdiction will, in a final determination, deem applicable hereto. In the event that a court determines that Lender has received interest and other charges under this Note in excess of the highest permissible rate applicable hereto, such excess will be deemed received on account of, and will automatically be applied to reduce the amounts due to Lender from Borrower hereby represents and warrants to the Custodian under this Note, other than interest, and the Agents that: (a) The provisions hereof will be deemed amended to provide for the highest permissible rate. If there are no such amounts outstanding, Lender will refund to Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreementexcess. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutesall endorsers, or when executed sureties, guarantors and deliveredother persons liable on this Note hereby waive presentment for payment, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing withdemand, notice to or of dishonor, protest, notice of protest and all other act by or in respect of, any Governmental Authority or any other Person is required demands and notices in connection with the execution, delivery, performance, validity or enforceability performance and enforcement of this Agreement, except (i) consents, approvals, authorizations, filings, registrationsNote, and notices that have been consent to one or more renewals or extensions of this Note. This Note may not be changed orally, but only by an instrument in writing. This Note will be obtained or madeconstrued and enforceable in accordance with, each and be governed by the internal laws of, the State of which is California, without regard to principles of conflict of laws. Borrower agrees that the State and Federal courts in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery Santa Xxxxx County, California will have exclusive jurisdiction over all matters arising out of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth Note; provided that nothing contained in this Agreement will prevent Lender from bringing any action, enforcing any award or judgment or exercising any rights against Borrower, against any security or against any property of Borrower within any other county, state or other foreign or domestic jurisdiction, and (ib) conflict with or result that service of process in a breach of (A) any such proceeding will be effective if mailed to Borrower at its address described in the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document Notices section of the BorrowerAgreement. BORROWER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE. EXECUTION PAGE TO FOLLOW (EXECUTION PAGE TO XXXXXXXX LAND LLC $3,200,000 PROMISSORY NOTE) BAM! ENTERTAINMENT, or (B) any Requirement of LawINC. By: _________________________________ Print Name: _________________________ Title: ______________________________ XXXXXXXX LAND LLC By: _________________________________ Print Name: _________________________ Title: ______________________________ EXHIBIT C REQUEST FOR LOAN EXHIBIT D BORROWER'S ACCOUNT Wire Instructions: Bank: Comerica Bank 000 X. Xxxxx Xxxxx Xxxxxx San Jose, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a partyCA 95113 ABA#: 000000000 Account Name: BAM! Entertainment, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual Obligation.Inc. Account #: 1891438333 EXHIBIT E BORROWER'S DISCLOSURES

Borrower. The Nothing herein shall be deemed to excuse Borrower hereby represents from restoring, repairing and warrants to maintaining each Property as required herein. Notwithstanding the Custodian and the Agents that: foregoing, provided that so long as either (a) The Borrower the Material Casualty Loss affects less than fifty (50%) percent of the then current fair market value of the Property, as determined by Appraisal reviewed and approved by Lender in its reasonable judgment, and no Event of Default or event, which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred, or (b) all of the following conditions are fully satisfied by Borrower, Lender shall disburse insurance proceeds from a Material Casualty Loss for repair and restoration of a Property in accordance with Lender’s standard construction loan disbursement conditions and requirements: (i) is duly organizedno Event of Default or event which, validly existing with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and in good standing under the laws of the jurisdiction of its organization, be continuing; (ii) has all requisite organizational power, Borrower shall have delivered evidence satisfactory to Lender that such Property can be fully repaired and has all governmental licenses, authorizations, consents and approvals, necessary restored at least six (6) months prior to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack maturity of the Obligations; (iii) no Lease of such licenses, Property is cancelable or terminable by the Tenant or Borrower on account of the casualty or, if it is, the Tenant or Borrower (Aas applicable) Section 111 of EESA, as implemented by any guidance has waived in writing its right to cancel; (iv) the work is performed under a fixed price or regulations issued by UST thereunder, including 31 CFR 30 guaranteed maximum price contract reasonably satisfactory to Lender in accordance with plans and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder specifications and a budget reasonably satisfactory to Lender in accordance with all legal requirements; (v) is in compliance in all material respects Borrower shall have deposited with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required Lender for disbursement in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except restoration the greater of: (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (iiX) the filings and recordings in respect of applicable deductible under the Liens created pursuant to insurance policies covering the Security Documents. loss; or (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (AY) the charter, articles of organization, amount by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower cost of restoration of such Property to substantially the same value, condition and character as existed prior to such damage is a party, or (iii) except for estimated by Lender to exceed the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual Obligation.net insurance proceeds;

Borrower. The from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Notwithstanding the foregoing, any Lender may, with notice to, but(h) without consent of, any Borrower hereby represents and warrants the Administrative Agent, and in accordance with the definition of “Conduit Lender” set forth in Section 1.1 hereof and the terms of this Section 11.7(h), designate a Conduit Lender and fund any of the Loans or Unreimbursed Amounts which such Lender is obligated to make or pay hereunder by causing such Conduit Lender to fund such Loans or Unreimbursed Amounts on behalf of such Lender. Any Conduit Lender may assign any or all of the Loans or Unreimbursed Amounts it may have funded hereunder to its designating Lender without the consent of any Borrower or the Administrative Agent and without regard to the Custodian limitations set forth in Section 11.7(c). Each Borrower, each Lender and the Agents that: (a) The Borrower Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy, insolvency or similar Law in connection with any obligation of such Conduit Lender under the Loan Documents, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. In addition, notwithstanding the foregoing, any Conduit Lender may (i) is duly organizedwith notice to, validly existing and in good standing under but without the laws of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect prior written consent of, any Governmental Authority Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any other Person is required in connection with Loans or Reimbursement Obligations to any financial institutions (consented to by the execution, delivery, performance, validity U.S. Borrower and the Administrative Agent) providing liquidity and/or credit support to or enforceability for the account of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been such Conduit Lender to support the funding or will be obtained maintenance of Loans or made, each of which is in full force and effect Reimbursement Obligations by such Conduit Lender and (ii) the filings disclose on a confidential basis any non-public information relating to its Loans and recordings in respect of the Liens created pursuant its Reimbursement Obligations to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with any rating agency, commercial paper dealer or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition provider of any Lien upon any Property of surety, guarantee or credit or liquidity enhancement to such Conduit Lender. This clause (h) may not be amended without the Borrower, pursuant to the terms written consent of any such material Contractual Obligation.Conduit Lender directly affected thereby. Adjustments;

Borrower. The Borrower hereby represents and warrants to the Custodian and the Agents that: (a) The Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses,, authorizations, consents and approvals could not be reasonably expected to have a Material Adverse (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law. (b) The Borrower has all necessary organizational power, authority and legal right to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms of any such material Contractual Obligation.

Borrower. PLANAR SYSTEMS, INC., for itself and each other Borrower By Name: Title: LIBOR Pricing Date LIBOR LIBOR Variance Maturity Date % TO: SILICON VALLEY BANK Date: FROM: PLANAR SYSTEMS, INC., et al The Borrower hereby represents undersigned authorized officer of Planar Systems, Inc. (for itself and warrants to on behalf of each other “Borrower”, the Custodian and the Agents that: (a“Borrower”) The Borrower (i) is duly organized, validly existing and in good standing certifies that under the laws terms and conditions of the jurisdiction of its organizationLoan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (ii1) has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects with on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all Requirements material respects as of Law. such date, (b4) The Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all necessary organizational powerforeign, authority federal, state and legal right to executelocal taxes, deliver assessments, deposits and perform its obligations under this Agreement. The execution, delivery and performance contributions owed by the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy Exceptions. (c) No consent, approval or authorization of, registration or filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security Documents. (d) Neither the execution and delivery of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect to which the Borrower is a party, or (iii) except for the Liens created pursuant to the Security Documents, result in the creation or imposition of any Lien upon any Property of the Borrower, as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any such material Contractual Obligationof its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.

Borrower. The Borrower hereby represents and warrants to Any of the Custodian and the Agents thatfollowing events shall constitute an "EVENT OF DEFAULT OF BORROWER": (a) The Borrower shall fail to pay when due any payment of: (i) is duly organized, validly existing and in good standing principal or interest due under the laws Note in accordance with the terms thereof, and such failure continues for a period of one (1) Business Day after the jurisdiction of its organization, date such payment is due and the Borrower has (ii) any other amounts due to the Lender hereunder or under the Note and such failure continues for a period of five (5) Business Days after the date such payment is due and the Borrower has all requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack received written notice of such licenses, (A) Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) is in compliance in all material respects with all Requirements of Law.non-payment; or (b) The Borrower has shall without the prior written approval of the Lender assign, transfer, encumber or convey, prior to the release of the same from the security interest created under the Loan Documents, any or all necessary organizational powerof its rights, authority and legal right title or interest in or to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by any item of Collateral or the proceeds thereof; the Borrower of this Agreement has been duly authorized by all necessary organizational action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation shall attempt to do any of the Borrower, enforceable against the Borrower in accordance with its terms, subject foregoing; or there shall otherwise occur any loss of or impairment to the Bankruptcy Exceptions.first priority perfected status of the security interest created under the Loan Documents and the incidents thereof; or (c) No consentOther than with respect to any failure to pay any amounts when due hereunder, approval the Borrower shall fail to perform or authorization ofto observe any other covenant or agreement contained herein or in the other Loan Documents, registration and such failure continues for a period of 30 days after written notice thereof has been given to the Borrower by the Lender or filing with, notice to or other act by or the Borrower otherwise has knowledge thereof; or (d) The Borrower shall default in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except : (i) consents, approvals, authorizations, filings, registrations, and notices that have been any payment obligation under any loan from Lender or will be obtained any subsidiary of Lender or made, each of which is in full force and effect and any obligation to pay for securities delivered to Borrower by Lender or a subsidiary; (ii) the filings and recordings in respect Borrower shall fail to pay any money due under any other agreement, note, indenture or instrument evidencing, securing, guaranteeing or otherwise relating to indebtedness of the Liens created pursuant Borrower for borrowed money, which failure to pay constitutes an event of default under any such agreement or instrument or constitutes a default and such default shall continue beyond any applicable grace periods therein specified or the Borrower shall default in the observance or performance of any other covenant or condition in any such agreement or instrument, which default has not been waived by the creditor or other applicable party thereunder, and such default shall continue beyond any applicable grace periods therein specified; (iii) any other event shall occur or condition shall exist if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such indebtedness; or (iv) any such indebtedness shall be declared due and payable prior to the Security Documents. (d) Neither stated maturity thereof; other than, in the execution and delivery case of this Agreement by the Borrower nor the performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) any Requirement of Law, items (ii) constitute a default under any material Contractual Obligation thereof (iv), indebtedness with respect to which the Borrower is failure to pay would not, individually or in the aggregate, be expected to have a partymaterial adverse effect on the financial condition, operations, business or prospects of the Borrower; or (e) Any Governmental Authority shall take any action, or any other event shall occur, with respect to the Borrower which has a material adverse effect on the condition (financial or otherwise) of the Borrower or on the ability of the Borrower to perform its obligations under any of the Loan Documents; or (f) The Borrower shall: (i) become insolvent; (ii) be dissolved; (iii) except fail generally to pay its debts as such debts become due; (iv) commence a voluntary case under federal bankruptcy, insolvency or other similar law; (v) consent to the appointment of or taking of possession by a receiver, liquidator, assignee, trustee, custodian, or sequestrator (or other similar official) of the Borrower or of any substantial part of its property; (vi) make an assignment for the Liens created pursuant benefit of creditors; or (vii) take any action intended or likely to the Security Documents, result in any event described in the creation foregoing clauses (i) through (vi); or (g) There shall be filed or imposition entered in respect of the Borrower a petition, decree or order for relief by a court having jurisdiction in the premises in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal, state or foreign bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or other similar official) of the Borrower or of any Lien upon any Property substantial part of its property, or ordering the Borrowerwinding up or liquidation of its affairs, pursuant to the terms of and any such material Contractual Obligation.petition, decree or order shall continue undismissed, unstayed and in effect for a period of 90 days; or