Common use of Certain Representations Clause in Contracts

Certain Representations. (a) The Buyer represents and warrants that it has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents and warrants that it has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations and warranties to Buyer: (i) Seller has good and marketable title to each of the Leases, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history and payments to be received under of each Lease, and to the best of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during the term of the Lease except as provided in Schedule 3(iii) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Leases or the exercise of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. 10.1. Each of the Parties intends and represents to each other Party that: 10.1.1 each Party is (i) an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act, as amended, (ii) a “forward contract merchant” in respect of the Safe Harbor Agreements as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code and (iii) a “swap participant” (as such term is defined in the Bankruptcy Code and used in Section 560 of the Bankruptcy Code) in respect of the Safe Harbor Agreements; 10.1.2 each purchase and sale of Product between them under any Safe Harbor Agreement is intended to constitute (i) a “forward contract” (as such term has meaning under the interpretations and guidance provided by the Commodity Futures Trading Commission and as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code) and (ii) a “commodity forward agreement” as such term is used in the definition of “swap agreement” (as such term is defined in the Bankruptcy Code and used in Section 560 of the Bankruptcy Code); 10.1.3 to the extent that any such purchase and sale of Product between them under any Safe Harbor Agreement is deemed to have any embedded volumetric optionality, (i) the Parties acknowledge and agree that (a) The Buyer represents such embedded optionality is not intended to undermine the overall nature of such purchase and warrants that it has duly authorizedsale as a forward contract, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents the predominant feature of such purchase and warrants that it has duly authorized, executed sale is actual delivery and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations such embedded optionality cannot be severed and warranties to Buyer: (i) Seller has good marketed separately from such purchase and marketable title to each of the Leasessale, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history seller thereunder acknowledges, agrees and payments represents that, at the time it enters into such purchase and sale, it shall intend to deliver the underlying relevant commodity if the embedded volumetric optionality is exercised, (iii) the buyer thereunder acknowledges, agrees and represents that, at the time it enters into such purchase and sale, it shall intend to take delivery of the underlying relevant commodity if the embedded volumetric optionality is exercised and (iv) each Party further acknowledges, agrees and represents that it is a commercial party and, at the time it enters into any such purchase and sale, such embedded volumetric optionality shall be received under of each Leaseprimarily intended to address physical factors or regulatory requirements that reasonably influence demand for, or supply of, the relevant commodity; 10.1.4 in the event any Party becomes Bankrupt, and to the best extent permitted by Applicable Law, each Party intends that, (i) the Performing Party’s right to liquidate, collect, net and set off rights and obligations under the Safe Harbor Agreements, and liquidate and terminate this Agreement shall not be stayed, avoided or otherwise limited by the Bankruptcy Code, including sections 362(a), 547, 548 or 553 thereof; (ii) the Performing Party shall be entitled to the rights, remedies and protections afforded by and under, among other sections, sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d), 553, 556, 560, 561 and 562 of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true Bankruptcy Code; and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during cash, securities, Products or other property provided as performance assurance, credit support or collateral with respect to the term transactions contemplated hereby shall constitute “margin payments” as defined in section 101(38) of the Lease except Bankruptcy Code and all payments for, under or in connection with the transactions contemplated hereby, shall constitute “settlement payments” as provided defined in Schedule 3(iiisection 101(51A) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms Bankruptcy Code; and 10.1.5 each Party intends to be a “master netting agreement participant” and for the Safe Harbor Agreements to constitute and to be deemed to be a “master netting agreement” for all purposes as each such term is defined in section 101(38A) of the Leases or the exercise Bankruptcy Code and as used in Section 561 of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense Bankruptcy Code; and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render that the rights and remedies in Section 18 hereto include the rights referred to in section 561(a) of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosureBankruptcy Code. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. As further consideration for acquisition of the Option pursuant to this Agreement, Optionee hereby represents, warrants and acknowledges to the Company as follows: (a) The Buyer represents Option is being acquired by the Optionee for its, his or her account, for investment purposes and warrants that it has duly authorizednot with a view to the sale or distribution of all or any part of the Option (or the shares underlying the Option), executed and delivered this Agreementnor with any present intention to sell or in any way distribute the same, as those terms are used in the Securities Act, and this Agreement constitutes its legal, valid the rules and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity.regulations promulgated thereunder; (b) The Seller represents Optionee has sufficient knowledge and warrants that it has duly authorized, executed experience in financial matters to be capable of evaluating the merits and delivered this Agreement, risks of acquiring the Option (and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of shares underlying the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity.Option); (c) Seller also provides the following representations Optionee has reviewed copies of such documents and warranties other information as Optionee has deemed necessary in order to Buyer: (i) Seller has good and marketable title make an informed investment decision with respect to each its, his or her acquisition of the Leases, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the DebtorOption; (iid) The schedule attached as Exhibit "B" shows Optionee understands that the payment history and payments to Option may not be received sold, transferred or otherwise disposed of without registration under the Securities Act or the availability of each Leasean exemption therefrom, and to that in the best absence of Seller’s knowledgean effective registration statement covering the Option or an available exemption from registration under the Securities Act, all information regarding the Leases that Option must be held indefinitely. Further, Optionee understands and has been provided by Seller to Buyer is true and correct the financial capability of assuming the economic risk of an investment in all material respectsthe Option for an indefinite period of time; (iiie) The Collateral is undamaged and Optionee has been advised by the Company that Optionee will not experienced any casualty during the term be able to dispose of the Lease except as provided in Schedule 3(iii) attached hereto.Option (or the shares underlying the Option), or any interest therein, without first complying with the relevant provisions of the Securities Act and any applicable state securities laws; (ivf) To Optionee understands that the best provisions of Seller’s knowledgeRule 144 promulgated under the Securities Act, no Leases are permitting the routine sales of the securities of certain issuers subject to the terms and conditions thereof, are not currently, and may not hereafter be, available with respect to the Option (or the shares underlying the Option); and (g) Optionee acknowledges that the Company is under no obligation to register the Option (or the shares underlying the Option) or to furnish any right of rescission, set-off, counterclaim information or defense, including take any other action to assist the defense of usury, nor will undersigned in complying with the operation terms and conditions of any exemption which might be available under the Securities Act or any state securities laws with respect to sales of the terms of the Leases Option (or the exercise of shares underlying the rights thereunder, render Option) in the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been assertedfuture. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. Borrower represents and warrants that, as of the Effective Date: (a) The Buyer represents and warrants that it Borrower has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents and warrants that it has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations and warranties to Buyer: (i) Seller has good and marketable title to each of the Leases, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right power and authority to sell and assign execute the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller Modification Papers and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history and payments to be received under of each Lease, and to the best of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during the term of the Lease except as provided in Schedule 3(iii) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Leases or the exercise of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is Modification Papers constitute the legal, valid and binding obligation of the Debtor thereof, Borrower enforceable in accordance with its their terms, except as such enforcement enforceability may be limited by general principles of equity and applicable bankruptcy, insolvency, reorganization or reorganization, moratorium, and other similar laws effecting affecting the enforcement of creditors’ ' rights generally generally; (b) no authorization, approval, consent or other action by, notice to, or filing with, any governmental authority or other person is required for the execution, delivery and performance by general equity principles. Borrower thereof. In addition, Borrower represents that after giving effect to this Amendment all representations and warranties contained in the Original Credit Agreement and the other Loan Documents are true and correct in all material respects (ixexcept that any representation or warranty that is qualified as to materiality shall be true and correct in all respects) The proceeds on and as of the Leases have been fully disbursedEffective Date as if made on and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case such representation or warranty is true and correct in all material respects (except that any representation or warranty that is qualified as to materiality shall be true and correct in all respects) as of such earlier date; and (c) the Borrower hereby certifies to the Administrative Agent and the Lenders that the obligations of the Borrower set forth in the Original Credit Agreement, as modified by this Eighth Amendment, qualify as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). From and after the Effective Date of this Eighth Amendment, the Borrower shall indemnify the Administrative Agent, and there is no requirement hold it harmless from, any and all losses, claims, damages, liabilities and related interest, penalties and expenses, including, without limitation, Taxes and the fees, charges and disbursements of any counsel for future advances thereunder. (x) any of the foregoing, arising in connection with the Administrative Agent’s treating, for purposes of determining withholding Taxes imposed under FATCA, the Credit Agreement as qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to Borrower’s obligations hereunder shall survive the resignation or replacement of the Administrative Agent or any assignment and transfer of rights by, or the replacement of, a Lender, the termination of the Leases Commitments and Loan Documents as contemplated hereinthe repayment, satisfaction or discharge of all of the Obligations under the Credit Agreement.

Certain Representations. (a) The Buyer Each Loan Party represents and warrants that it has duly authorizedthat, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents and warrants that it has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations and warranties to Buyer: Effective Date: (i) Seller it has good and marketable title to each of the Leases, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right power and authority to sell execute the Modification Papers to which it is a party and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history and payments to be received under of each Lease, and to the best of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during the term of the Lease except as provided in Schedule 3(iii) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Leases or the exercise of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is Modification Papers constitute the legal, valid and binding obligation of the Debtor thereof, such Loan Party enforceable in accordance with its their terms, except as such enforcement enforceability may be limited by general principles of equity and applicable bankruptcy, insolvency, reorganization or reorganization, moratorium, and other similar laws effecting affecting the enforcement of creditors’ rights generally generally; and (ii) no authorization, approval, consent or other action by, notice to, or filing with, any Governmental Authority or other Person is required for the execution, delivery and performance by general equity principleseach Loan Party thereof. In addition, each Loan Party represents that after giving effect to this Amendment all representations and warranties contained in the Original Credit Agreement and the other Loan Documents are true and correct in all material respects (provided that any such representations or warranties that are, by their terms, requalified by reference to materiality shall be true and correct without regard to such materialty standard) on and as of the Effective Date as if made on and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case such representation or warranty is true and correct in all material respects (or true and correct without regard to such materiality standard, as applicable) as of such earlier date. (ixb) The proceeds In addition, each Loan Party represents and warrants that as of the Leases have been fully disbursedEffective Date, there are no claims or offsets or defenses or counterclaims to its obligations under the Loan Documents, and there is no requirement for future advances thereunder.in accordance therewith each Loan Party: (xi) The Leases waives any and all such claims, offsets, defenses or counterclaims, whether known or unknown, arising under the Loan Documents comply with all applicable laws, statutes, and regulations.prior to the Effective Date; and (xiii) The Debtor is not required releases and discharges Administrative Agent and Lenders and their officers, directors, employees, agents, shareholders, affiliates and attorneys (the “Released Parties”) from any and all obligations, indebtedness, liabilities, claims, rights, causes of action or other demands whatsoever, whether known or unknown, suspected or unsuspected, in law or equity, which it ever had, now has or claims to consent have or may have against any Released Party arising prior to any assignment the Effective Date and transfer from or in connection with the Loan Documents or the transactions contemplated thereby, except those resulting from the gross negligence or willful misconduct of the Leases and Loan Documents as contemplated hereinReleased Party.

Certain Representations. (a) The Buyer Cytogen represents to Elan the following: (i) Cytogen is duly and warrants that it validly existing in good standing in the state of Delaware and each other jurisdiction in which the conduct of its business requires such qualification; (ii) Cytogen has duly authorized, executed full corporate authority to execute and delivered deliver this AgreementAgreement and the Supplemental Agreements and to consummate the transactions contemplated hereby and thereby, and this Agreement has been duly executed and delivered and constitutes its legal, the legal and valid obligation of Cytogen and binding obligation is enforceable against the Buyer Cytogen in accordance with its terms; (iii) the Convertible Note and the shares of Cytogen Common Stock issuable upon conversion thereof, except have been or will be duly and validly authorized and when issued will be fully paid and non assessable and free from any and all options, warrants and preemptive and other rights; (iv) Cytogen is not in default in any material respect of its charter or by laws, any applicable laws or regulations or any contract or agreement binding upon or affecting it or its properties or assets and the execution, delivery and performance of this Agreement and the transactions contemplated hereby will not result in any such violation; (v) after due inquiry, Cytogen is not aware of any liability or obligation of Targon, for indebtedness, in respect of employee or development or other matters or otherwise, other than as enforcement of previously disclosed in writing to EIS; and (vi) Cytogen has not retained any broker or finder in connection with the terms hereof transactions contemplated hereby and thereof may be limited by applicable bankruptcyno person or entity is entitled to any fee, insolvency, reorganization, liquidation, moratorium commission or similar laws affecting enforcement of creditors’ rights generally, and general principles of equityother compensation in respect thereof. (b) The Seller represents Elan and warrants that it EIS, jointly and severally, represent to Cytogen the following: (i) each of Elan and EIS is duly and validly existing in good standing in the jurisdiction of its incorporation and each other jurisdiction in which the conduct of its business requires such qualification; (ii) each of Elan and EIS has full corporate authority to execute and deliver this Agreement and the Supplemental Agreements and to consummate the transactions contemplated hereby and thereby; this Agreement has been duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, the legal and valid obligations of each of Elan and binding obligation EIS and is enforceable against the Seller them in accordance with its terms; (iii) neither Elan nor EIS is in default in any material respect of its memorandum and articles of association, except as enforcement any applicable laws or regulations or any contract or agreement binding upon or affecting it or its properties or assets and the execution, delivery and performance of this Agreement and the terms hereof transactions contemplated hereby will not result in any such violation and thereof may be limited by applicable bankruptcy(iv) neither Elan nor EIS has retained any broker or finder in connection with the transactions contemplated hereby and no person or entity is entitled to any fee, insolvency, reorganization, liquidation, moratorium commission or similar laws affecting enforcement of creditors’ rights generally, and general principles of equityother compensation in respect thereof. (c) Seller also provides the following representations and warranties to Buyer: (i) Seller Neither Elan nor EIS has good and marketable title to each entered into on behalf of Targon, as of the Leasesdate hereof, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history and payments to be received under of each Lease, and commercial transactions relating to the best of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during the term licensing of the Lease except intellectual property relating to Morphelan (as provided defined in Schedule 3(iiithe Morphelan Agreements) attached hereto. (iv) To the best or marketing of Seller’s knowledgeMorphelan. In addition, no Leases are subject to any right of rescissionneither Elan nor EIS is, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any as of the terms date hereof, in substantive discussion with any third party relating to the licensing of the Leases intellectual property relating to Morphelan or the exercise marketing of the rights thereunderMorphelan. For greater clarity EIS, render the Leases unenforceable, Elan and/or Targon may continue and consummate any discussions or negotiations currently underway in whole connection with such intellectual property or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been assertedproducts without breaching this representation. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. The Borrower and each of the Guarantors, jointly and severally, represents and warrants that, as of the date hereof: (a) the representations and warranties contained in the Loan Agreement as amended hereby are true and correct on and as of the date hereof as made on and as of such date; (b) no event has occurred and is continuing which constitutes a Default or an Event of Default; (c) The Buyer Borrower represents and warrants that it that, as of the date hereof: (i) the Borrower has duly authorized, executed full power and delivered authority to execute this AgreementFifrth Amendment, and this Agreement Fifth Amendment constitutes its the legal, valid and binding obligation of the Borrower enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidationmoratorium, moratorium or and other similar laws affecting the enforcement of creditors’ ' rights generally; and (ii) no authorization, approval, consent or other action by, notice to, or filing with, any governmental authority or other person is required for the execution, delivery and general principles performance by the Borrower of equitythis Fifth Amendment. (bd) The Seller Each Guarantor represents and warrants that it that, as of the date hereof: (i) such Guarantor has duly authorized, executed full power and delivered authority to execute this AgreementFifth Amendment, and this Agreement Fifth Amendment constitutes its the legal, valid and binding obligation of such Guarantor enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidationmoratorium, moratorium or and other similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations and warranties to Buyer: (i) Seller has good and marketable title to each of the Leases, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history and payments to be received under of each Lease, and to the best of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during the term of the Lease except as provided in Schedule 3(iii) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Leases or the exercise of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render the rights and remedies of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ ' rights generally generally; and (ii) no authorization, approval, consent or other action by, notice to, or filing with, any governmental authority or other person is required for the execution, delivery and performance by general equity principlessuch Guarantor of this Fifth Amendment. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. (a) The Buyer represents and warrants that it has duly authorized, executed and delivered As further consideration for acquisition of the Option pursuant to this Agreement, Optionee hereby represents, warrants and this Agreement constitutes its legal, valid and binding obligation enforceable against acknowledges to the Buyer in accordance with its terms, except Company as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents and warrants that it has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations and warranties to Buyerfollows: (i) Seller has good The Option is being acquired by the Optionee for its, his or her account, for investment purposes and marketable title not with a view to each the sale or distribution of all or any part of the LeasesOption (or the shares underlying the Option), nor with any present intention to sell or in any way distribute the same, as those terms are used in the Securities Act, and upon transfer to Buyer, each Lease will be free the rules and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtorregulations promulgated thereunder; (ii) The schedule attached as Exhibit "B" shows the payment history Optionee has sufficient knowledge and payments experience in financial matters to be received under capable of each Lease, evaluating the merits and to risks of acquiring the best of Seller’s knowledge, all information regarding Option (and the Leases that has been provided by Seller to Buyer is true and correct in all material respectsshares underlying the Option); (iii) The Collateral is undamaged Optionee has reviewed copies of such documents and other information as Optionee has not experienced any casualty during the term deemed necessary in order to make an informed investment decision with respect to its, his or her acquisition of the Lease except as provided in Schedule 3(iii) attached hereto.Option; (iv) To Optionee understands that the best Option may not be sold, transferred or otherwise disposed of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including without registration under the defense of usury, nor will the operation of any of the terms of the Leases Securities Act or the exercise availability of an exemption therefrom, and that in the rights thereunderabsence of an effective registration statement covering the Option or an available exemption from registration under the Securities Act, render the Leases unenforceableOption must be held indefinitely. Further, Optionee understands and has the financial capability of assuming the economic risk of an investment in whole or in part, or subject it to any right the Option for an indefinite period of rescission, set-off, counterclaim or defense and no such right has been asserted.time; (v) The Leases contain customary and enforceable provisions, Optionee has been advised by the Company that Optionee will not be able to dispose of the Option (and are not subject to consumer loan regulationsor the shares underlying the Option), such as to render or any interest therein, without first complying with the rights and remedies relevant provisions of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosure.Securities Act and any applicable state securities laws; (vi) Since their originationOptionee understands that the provisions of Rule 144 promulgated under the Securities Act, permitting the Leases have routine sales of the securities of certain issuers subject to the terms and conditions thereof, are not been in default except as provided in Schedule 3(vicurrently, and may not hereafter be, available with respect to the Option (or the shares underlying the Option).; and (vii) To Optionee acknowledges that the best Company is under no obligation to register the Option (or the shares underlying the Option) or to furnish any information or take any other action to assist the undersigned in complying with the terms and conditions of Seller’s knowledge any exemption which might be available under the Collateral is being operated Securities Act or any state securities laws with all necessary inspections, licenses and certificates necessary respect to operate such Collateral for the business purposes sales of the DebtorOption (or the shares underlying the Option) in the future. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.

Certain Representations. 10.1 Each of the Parties intends and represents to each other Party that: 10.1.1 each Party is (i) an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act, as amended, (ii) a “forward contract merchant” in respect of the Safe Harbor Agreements as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code and (iii) a “swap participant” (as such term is defined in the Bankruptcy Code and used in Section 560 of the Bankruptcy Code) in respect of the Safe Harbor Agreements; 10.1.2 each purchase and sale of Product between them under any Safe Harbor Agreement is intended to constitute (i) a “forward contract” (as such term has meaning under the interpretations and guidance provided by the Commodity Futures Trading Commission and as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code) and (ii) a “commodity forward agreement” as such term is used in the definition of “swap agreement” (as such term is defined in the Bankruptcy Code and used in Section 560 of the Bankruptcy Code); 10.1.3 to the extent that any such purchase and sale of Product between them under any Safe Harbor Agreement is deemed to have any embedded volumetric optionality, (i) the Parties acknowledge and agree that (a) The Buyer represents such embedded optionality is not intended to undermine the overall nature of such purchase and warrants that it has duly authorizedsale as a forward contract, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Buyer in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (b) The Seller represents the predominant feature of such purchase and warrants that it has duly authorized, executed sale is actual delivery and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforcement of the terms hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and general principles of equity. (c) Seller also provides the following representations such embedded optionality cannot be severed and warranties to Buyer: (i) Seller has good marketed separately from such purchase and marketable title to each of the Leasessale, and upon transfer to Buyer, each Lease will be free and clear of any and all liens, pledges, charges, or security interests of any nature and Seller has the full right and authority to sell and assign the Leases, and further the Leases were executed with duly authorized and legally binding upon Seller and the Debtor; (ii) The schedule attached as Exhibit "B" shows the payment history seller thereunder acknowledges, agrees and payments represents that, at the time it enters into such purchase and sale, it shall intend to deliver the underlying relevant commodity if the embedded volumetric optionality is exercised, (iii) the buyer thereunder acknowledges, agrees and represents that, at the time it enters into such purchase and sale, it shall intend to take delivery of the underlying relevant commodity if the embedded volumetric optionality is exercised and (iv) each Party further acknowledges, agrees and represents that it is a commercial party and, at the time it enters into any such purchase and sale, such embedded volumetric optionality shall be received under of each Leaseprimarily intended to address physical factors or regulatory requirements that reasonably influence demand for, or supply of, the relevant commodity; 10.1.4 in the event any Party becomes Bankrupt, and to the best extent permitted by Applicable Law, each Party intends that, (i) the Performing Party’s right to liquidate, collect, net and set off rights and obligations under the Safe Harbor Agreements, and liquidate and terminate this Agreement shall not be stayed, avoided or otherwise limited by the Bankruptcy Code, including sections 362(a), 547, 548 or 553 thereof; (ii) the Performing Party shall be entitled to the rights, remedies and protections afforded by and under, among other sections, sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d), 553, 556, 560, 561 and 562 of Seller’s knowledge, all information regarding the Leases that has been provided by Seller to Buyer is true Bankruptcy Code; and correct in all material respects; (iii) The Collateral is undamaged and has not experienced any casualty during cash, securities, Products or other property provided as performance assurance, credit support or collateral with respect to the term transactions contemplated hereby shall constitute “margin payments” as defined in section 101(38) of the Lease except Bankruptcy Code and all payments for, under or in connection with the transactions contemplated hereby, shall constitute “settlement payments” as provided defined in Schedule 3(iiisection 101(51A) attached hereto. (iv) To the best of Seller’s knowledge, no Leases are subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms Bankruptcy Code; and 10.1.5 each Party intends to be a “master netting agreement participant” and for the Safe Harbor Agreements to constitute and to be deemed to be a “master netting agreement” for all purposes as each such term is defined in section 101(38A) of the Leases or the exercise Bankruptcy Code and as used in Section 561 of the rights thereunder, render the Leases unenforceable, in whole or in part, or subject it to any right of rescission, set-off, counterclaim or defense Bankruptcy Code; and no such right has been asserted. (v) The Leases contain customary and enforceable provisions, (and are not subject to consumer loan regulations), such as to render that the rights and remedies in Section 18 hereto include the rights referred to in section 561(a) of the holder thereof adequate for the realization against the collateral of the benefits of the security, including realization by judicial foreclosureBankruptcy Code. (vi) Since their origination, the Leases have not been in default except as provided in Schedule 3(vi). (vii) To the best of Seller’s knowledge the Collateral is being operated with all necessary inspections, licenses and certificates necessary to operate such Collateral for the business purposes of the Debtor. (viii) The Leases and other agreements executed in connections therewith are genuine, and each is the legal, valid and binding obligation of the Debtor thereof, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws effecting the enforcement of creditors’ rights generally and by general equity principles. (ix) The proceeds of the Leases have been fully disbursed, and there is no requirement for future advances thereunder. (x) The Leases and Loan Documents comply with all applicable laws, statutes, and regulations. (xi) The Debtor is not required to consent to any assignment and transfer of the Leases and Loan Documents as contemplated herein.