Common use of Representations and Warranties of Subordinated Creditor Clause in Contracts

Representations and Warranties of Subordinated Creditor. Each Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itself, severally and not jointly, that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is a partnership, limited liability company or corporation, as applicable, duly formed and validly existing under the laws of its jurisdiction of formation or incorporation, as applicable, as set forth on Schedule 1 attached hereto; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; (f) such Subordinated Creditor is the sole owner, beneficially and of record, of its respective Subordinated Debt Documents and the Subordinated Debt; and (g) as of the date hereof, the aggregate outstanding amount of the Subordinated Debt held by such Subordinated Creditor is in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Parties.

Representations and Warranties of Subordinated Creditor. Each Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itselfwarrants, severally and not jointly, to the Company, Agent and Senior Lenders that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is individual or a partnership, limited liability company or corporation, as applicable, partnership duly formed and validly existing under the laws of its jurisdiction the State of formation or incorporationDelaware, as applicable, as set forth on Schedule 1 attached hereto; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of such Subordinated Creditor, as applicable, any material agreement binding upon such Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' ’ rights generally and by equitable principles; (fe) such Subordinated Creditor is the sole owner, beneficially and of record, of its respective Subordinated Debt Documents and the its Subordinated Debt; and (f) no Person other than the Company is obligated in respect of the Subordinated Debt or under any Subordinated Debt Documents; (g) its Subordinated Debt is not secured by any assets of the Company that do not constitute Collateral; (h) its Subordinated Debt is not secured by any assets of the Company that are not described in Schedule A attached hereto; (i) no defaults have occurred and are continuing under the Subordinated Debt or any of the Subordinated Debt Documents or would arise thereunder upon the execution, delivery and performance of the VPC Loan Documents; and (j) each of the Subordinated Debt Documents in existence as of the date hereof, the aggregate outstanding amount of the Subordinated Debt held by such Subordinated Creditor is hereof are identified in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan PartiesC attached hereto.

Representations and Warranties of Subordinated Creditor. Each The Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itselfwarrants, severally and not jointly, that to the Agent and the other Senior Creditors as of the date hereof: follows: (a) such The Subordinated Creditor (other than any Subordinated Creditor who is an individual) is a partnershipduly organized, limited liability company or corporation, as applicable, duly formed and validly existing and in good standing under the laws of its respective jurisdiction of formation or incorporation, as applicable, as set forth on Schedule 1 attached hereto; organization. (b) such The Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; action and are not prohibited by its organizational documents. (c) This Agreement, when executed and delivered, will constitute the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and legally binding obligation of such Subordinated Creditor, enforceable against such the Subordinated Creditor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; . (fd) such No provisions of any mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on the Subordinated Creditor is or affecting the sole owner, beneficially and of record, of its respective Subordinated Debt Documents and the Subordinated Debt; and (g) as of the date hereof, the aggregate outstanding amount property of the Subordinated Debt held Creditor conflicts with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or performance of the terms of this Agreement by such the Subordinated Creditor is Creditor. The execution, delivery and carrying out of the terms of this Agreement will not constitute a default under, or result in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby representscreation or imposition of, warrants and covenants or obligations to Agent and Lender Group that from and after the date hereof until all of the Senior Debt has been Paid in Full no portion of the Subordinated Debt shall be secured by create, any lien or security interest on any real or personal in the property of the Subordinated Creditor pursuant to the terms of any such mortgage, indenture, contract or agreement. No pending or, to the best of the Loan PartiesSubordinated Creditor's knowledge, threatened, litigation, arbitration or other proceedings if adversely determined would prevent the performance of the terms of this Agreement by the Subordinated Creditor. (e) The Subordinated Creditors are the owners of the Subordinated Notes specified under its name on Schedule I to the Securities Purchase Agreement.

Representations and Warranties of Subordinated Creditor. Each The Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itself, severally and not jointly, Lenders that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is a partnership, limited liability company or corporation, as applicablecompany, duly formed and validly existing under the laws of its jurisdiction the State of formation or incorporation, as applicable, as set forth on Schedule 1 attached heretoMichigan; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of the Subordinated Creditor, any material agreement binding upon the Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such the Subordinated Creditor, enforceable against such the Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; (fe) such the Subordinated Creditor is the sole owner, beneficially and of record, of its respective the Subordinated Debt Documents and the Subordinated Debt to which it is a party and the related Subordinated Debt; (f) the Subordinated Creditor has not relied and shall not rely on any representation or information of any nature made by or received from Agent or any Senior Lender relative to any Borrower or any of its Affiliates in deciding to execute this Agreement or to permit it to continue in effect; and (g) as Agent has been furnished with a true, correct and complete copy of the date hereofall instruments, the aggregate outstanding amount of agreements and securities evidencing or pertaining to the Subordinated Debt held by to which such Subordinated Creditor is a party or in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt which it has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Partiesan interest.

Representations and Warranties of Subordinated Creditor. Each Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itselfwarrants, severally and not jointly, to the Agent and Senior Lenders that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is individual or a partnership, limited liability company or corporation, as applicable, partnership duly formed and validly existing under the laws of its jurisdiction the State of formation or incorporationDelaware, as applicable, as set forth on Schedule 1 attached hereto; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of such Subordinated Creditor, as applicable, any material agreement binding upon such Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' ’ rights generally and by equitable principles; (fe) such Subordinated Creditor is the sole owner, beneficially and of record, of its respective Subordinated Debt Documents and the its Subordinated Debt; and (f) no Person other than the Company is obligated in respect of the Subordinated Debt or under any Subordinated Debt Documents; (g) its Subordinated Debt is not secured by any assets of the Company that do not constitute Collateral; (h) its Subordinated Debt is not secured by any assets of the Company that are not described in Schedule A attached to the Subordination Agreement; (i) no defaults have occurred and are continuing under the Subordinated Debt or any of the Subordinated Debt Documents or would arise thereunder upon the execution, delivery and performance of the Amended and Restated Financing Agreement; and (j) each of the Subordinated Debt Documents in existence as of the date hereof, hereof are identified in Schedule C attached to the aggregate outstanding amount of the Subordinated Debt held by such Subordinated Creditor is Subordination Agreement (as amended in the respective amount listed on Schedule 2 manner provided by the documents attached hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Partiesas Exhibit A).

Representations and Warranties of Subordinated Creditor. Each Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itself, severally and not jointly, that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is a partnership, limited liability company or corporation, as applicable, duly formed and validly existing under the laws of its jurisdiction of formation or incorporation, as applicable, as set forth on Schedule 1 attached hereto; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; (f) such Subordinated Creditor is the sole owner, beneficially and of record, of its respective Subordinated Debt Documents and the Subordinated Debt; and (g) as of the date hereof, the aggregate outstanding amount of the Subordinated Debt held by such Subordinated Creditor is in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Parties. -12- 4.

Representations and Warranties of Subordinated Creditor. Each Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders, as to itself, severally and not jointly, Lenders that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individuali) with respect to Huntingdon only, is a partnership, limited liability company or corporation, as applicable, duly formed and validly existing under the laws of its jurisdiction the State of formation or incorporationFlorida; (ii) with respect to Herrick only, as applicableis a natural person, as set forth on Schedule 1 attached heretodomiciled in the State of Florxxx; xxd (iii) with respect to Herrick Trust only, is a trust, duly formed and validly existing xxxxx xhe laws of the State of Michigan (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) with respect to Huntingdon and the Herrick Trust only, the execution of this Agreement by such Subordinated Suborxxxxxxx Creditor will not violate or conflict with the organizational documents of such Subordinated Creditor, any material agreement binding upon such Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; (fe) such Subordinated Creditor is the sole owner, beneficially and of record, of its respective the Subordinated Debt Documents and the Subordinated Debt to which it is a party and the related Subordinated Debt, and the Subordinated Creditors, collectively, are the sole owners, beneficially and of record, of the Subordinated Debt Documents and the Subordinated Debt as of the date hereof; (f) such Subordinated Creditor has not relied and shall not rely on any representation or information of any nature made by or received from Agent or any Senior Lender relative to any Borrower or any of its Affiliates in deciding to execute this Agreement or to permit it to continue in effect; and (g) as Agent has been furnished with a true, correct and complete copy of the date hereofall instruments, the aggregate outstanding amount of agreements and securities evidencing or pertaining to the Subordinated Debt held by to which such Subordinated Creditor is a party or in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt which it has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Partiesan interest.

Representations and Warranties of Subordinated Creditor. Each The Subordinated Creditor hereby represents and warrants to Agent Agent, MediaBay and Senior Lenders, as to itself, severally and not jointly, Lenders that as of the date hereof: (a) such Subordinated Creditor (other than any Subordinated Creditor who is an individual) is a partnership, limited liability company or corporation, as applicable, duly formed and validly existing under the laws of its jurisdiction the State of formation or incorporation, as applicable, as set forth on Schedule 1 attached heretoConnecticut; (b) such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or conflict with the organizational documents of the Subordinated Creditor, any material agreement binding upon the Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) the execution of this Agreement by Subordinated Creditor will not require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (e) this Agreement is the legal, valid and binding obligation of such the Subordinated Creditor, enforceable against such the Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by equitable principles; (fe) such the Subordinated Creditor is the sole owner, beneficially and of record, of its respective the Subordinated Debt Documents and the Subordinated Debt to which it is a party and the related Subordinated Debt; (f) the Subordinated Creditor has not relied and shall not rely on any representation or information of any nature made by or received from Agent or any Senior Lender relative to any Borrower (including, without limitation, MediaBay) or any of its Affiliates in deciding to execute this Agreement or to permit it to continue in effect; and (g) as Agent has been furnished with a true, correct and complete copy of the date hereofall instruments, the aggregate outstanding amount of agreements and securities evidencing or pertaining to the Subordinated Debt held by to which such Subordinated Creditor is a party or in the respective amount listed on Schedule 2 hereto opposite its legal name. Each Subordinated Creditor hereby represents, warrants and covenants to Agent and Lender Group that from and after the date hereof until all of the Senior Debt which it has been Paid in Full no portion of the Subordinated Debt shall be secured by any lien or security interest on any real or personal property of any of the Loan Partiesan interest.