Common use of Representations and Warranties of the Assignors Clause in Contracts

Representations and Warranties of the Assignors. The Assignor hereby makes the following representations and warranties to Assignee, which shall survive the Closing: (a) The Assets are owned by Assignor free and clear of any and all liens, claims, encumbrances, preemptive rights, right or first refusal and adverse interests of any kind. (b) Assignor has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and otherwise to carry out Assignor’s obligations hereunder. (c) Except for Vicis Capital Mater Fund (which consent has been received), no consent, approval or agreement of any individual or entity is required to be obtained by Assignor in connection with the execution and performance by Assignor of this Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. (d) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, against Assignor or any of Assignor’s’ properties or any of its assets, at law or in equity. (e) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no judgment, decree or order against Assignor that could prevent, enjoin, alter, or delay any of the transactions contemplated by this Agreement. (f) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there are no material claims, actions, suits, proceedings, inquiries, labor disputes or investigations pending against the Assignor or any of its assets, at law or in equity or by or before any governmental entity or in arbitration or mediation. (g) No bankruptcy, receivership or debtor relief proceedings are pending or, to Assignor’s knowledge, threatened against Assignor. (h) Assignor has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order). (i) Assignor is aware of Assignee’s business affairs and financial condition and has reached an informed and knowledgeable decision to assign the Assets. (j) There are no liabilities, commitments, contracts, agreements, obligations or other claims against Assignor or the Assets, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise associated with the Assets. (k) All representations, covenants and warranties of Assignor contained in this Agreement shall be true and correct on and as of the Closing with the same effect as though the same had been made on and as of such date. Assignor agrees to defend, indemnify, and hold harmless Assignee, its officers, directors, agents and assigns with respect to any claim constituting a breach of the representations or warranties contained in this Agreement. With respect to any such claims, either party shall give the other party prompt notice of the claim. Assignee and Assignor agree to fully cooperate in the defense against claims. The indemnifying party, Assignor, shall pay, upon presentation, a legal retainer, if required, and all of Assignee’s legal fees and costs, expenses, losses, and charges incurred in defending against such suits, as incurred, month to month. Assignee shall not, without the prior written consent of Assignor, the indemnifying party, agree to the settlement, compromise or discharge of such claim, though written consent of Assignor cannot be unreasonably withheld.

Representations and Warranties of the Assignors. The Each Assignor (individually and not jointly) hereby makes the following representations and warranties to Assignee, which shall survive the ClosingAssignees: (a) The Assets are owned by Such Assignor owns its applicable Note free and clear of all any and all liens, claims, encumbrances, preemptive rights, right or of first refusal and adverse interests of any kind. (b) Such Assignor has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and otherwise to carry out such Assignor’s obligations hereunder. (c) Except for Vicis Capital Mater Fund (which consent has been received), no . No consent, approval or agreement of any individual or entity is required to be obtained by such Assignor in connection with the execution and performance by such Assignor of this Agreement or the execution and performance by such Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. Upon execution and delivery hereof, this Agreement shall be a legal, valid and bonding agreement of each Assignor, enforceable against such Assignor in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights and by general principles of equity. (dc) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to such Assignor’s knowledge, threatened against such Assignor or any of Assignor’s’ properties or any of its assets, at law or in equity. (e) Except as set forth in the such Assignor’s filing with properties, in each case that could reasonably be expected to prevent the Securities and Exchange Commission, there assignment of the Notes contemplated hereby. There is no judgment, decree or order against such Assignor that could prevent, enjoin, alter, alter or delay any of the transactions contemplated by this Agreement. (fd) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there There are no material claims, actions, suits, proceedings, inquiries, labor disputes or investigations pending or, to such Assignor’s knowledge, threatened against the such Assignor or any of its assets, at law or in equity or by or before any governmental entity or in arbitration or mediation. (g) , in each case that could reasonably be expected to prevent the assignment of the Notes contemplated hereby. No bankruptcy, receivership or debtor relief proceedings are pending or, to such Assignor’s knowledge, threatened against such Assignor. (he) Assignor has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order). (i) Such Assignor is aware of Assignee’s the Makers’ business affairs and financial condition and has reached an informed and knowledgeable decision to assign the Assets. (j) There are no liabilities, commitments, contracts, agreements, obligations or other claims against Assignor or the Assets, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise associated with the Assets. (k) All representations, covenants and warranties a portion of Assignor contained in this Agreement shall be true and correct on and as of the Closing with the same effect as though the same had been made on and as of such date. Assignor agrees to defend, indemnify, and hold harmless Assignee, its officers, directors, agents and assigns with respect to any claim constituting a breach of the representations or warranties contained in this Agreement. With respect to any such claims, either party shall give the other party prompt notice of the claim. Assignee and Assignor agree to fully cooperate in the defense against claims. The indemnifying party, Assignor, shall pay, upon presentation, a legal retainer, if required, and all of Assignee’s legal fees and costs, expenses, losses, and charges incurred in defending against such suits, as incurred, month to month. Assignee shall not, without the prior written consent of Assignor, the indemnifying party, agree applicable Note to the settlement, compromise or discharge of such claim, though written consent of Assignor cannot be unreasonably withheldAssignees.

Representations and Warranties of the Assignors. The Assignor hereby makes (a) Each of the following representations Assignors represents and warranties to Assignee, which shall survive the Closingwarrants for itself that: (ai) The Assets are owned it has all requisite power and authority, and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations under, and consummate the transactions contemplated by, this Agreement; (ii) the execution, delivery and compliance with the terms hereof by Assignor it and the delivery of all instruments required to be delivered by it hereunder do not and will not violate any Governmental Requirement applicable to it; (iii) this Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of such Assignor, enforceable against it in accordance with its terms; (iv) all approvals and authorizations of, all filings with and all actions by any Governmental Authority necessary for the validity or enforceability of its obligations under this Agreement have been obtained; (v) it has good title, to and is the sole legal and beneficial owner of, the Assigned Interest, free and clear of any and all liensLiens, claims, encumbrances, preemptive rights, right participations or first refusal and adverse interests other charges of any kindnature whatsoever and has the right to transfer to the Assignee, the rights being transferred; and (vi) the amounts set forth on Schedule A and Schedule B by each of the respective Assignors as its portion of the Assigned Interest and Retained Interest is true and correct. (b) Assignor has Each of the requisite power and authority Assignors does not (i) make any representation or warranty or assume any responsibility with respect to enter into this Agreement and to consummate any statements, warranties or representations made (x) by the transactions contemplated hereby and otherwise to carry out Assignor’s obligations hereunder. (c) Except for Vicis Capital Mater Fund (which consent has been received), no consent, approval Borrower in or agreement of any individual or entity is required to be obtained by Assignor in connection with the execution and performance by Assignor of this Credit Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. (dy) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, against Assignor or any of Assignor’s’ properties or any of its assets, at law or in equity. (e) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no judgment, decree or order against Assignor that could prevent, enjoin, alter, or delay any of the transactions contemplated by this Agreement. (f) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there are no material claims, actions, suits, proceedings, inquiries, labor disputes or investigations pending against the Assignor or any of its assets, at law or in equity or by or before any governmental entity or in arbitration or mediation. (g) No bankruptcy, receivership or debtor relief proceedings are pending or, to Assignor’s knowledge, threatened against Assignor. (h) Assignor has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order). (i) Assignor is aware of Assignee’s business affairs and financial condition and has reached an informed and knowledgeable decision to assign the Assets. (j) There are no liabilities, commitments, contracts, agreements, obligations or other claims against Assignor or the Assets, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise associated with the Assets. (k) All representations, covenants and warranties of Assignor contained in this Agreement shall be true and correct on and as of the Closing with the same effect as though the same had been made on and as of such date. Assignor agrees to defend, indemnify, and hold harmless Assignee, its officers, directors, agents and assigns with respect to any claim constituting a breach the execution, legality, validity, enforceability, genuineness, sufficiency or value of the representations Credit Agreement, any other Loan Document or warranties contained in this Agreement. With any other instrument or document furnished pursuant hereto or thereto, or any collateral or the legality, validity, perfection or priority of any Lien granted or purported to be granted pursuant to any Security Instrument, or (ii) make any representation or warranty or assume any responsibility with respect to the financial condition of Borrower or any such claims, either party shall give other obligor or the performance or observance by Borrower or any other party prompt notice obligor of any of their respective obligations under the claim. Assignee and Assignor agree to fully cooperate in the defense against claims. The indemnifying party, Assignor, shall pay, upon presentation, a legal retainer, if required, and all of Assignee’s legal fees and costs, expenses, losses, and charges incurred in defending against such suits, as incurred, month to month. Assignee shall not, without the prior written consent of Assignor, the indemnifying party, agree to the settlement, compromise Credit Agreement or discharge of such claim, though written consent of Assignor cannot be unreasonably withheldany other Loan Document or any other instrument or document furnished pursuant hereto or thereto.

Representations and Warranties of the Assignors. The Assignor hereby makes the following representations and warranties to Assignee, which shall survive the Closing: (a) The Assets are owned by Assignor free and clear of any and all liens, claims, encumbrances, preemptive rights, right or first refusal and adverse interests of any kind. (b) Assignor has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and otherwise to carry out Assignor’s obligations hereunder. (c) Except for Vicis Capital Mater Fund (which consent has been received), no consent, approval or agreement of any individual or entity is required to be obtained by Assignor in connection with the execution and performance by Assignor of this Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement. (d) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, against Assignor or any of Assignor’s’ properties or any of its assets, at law or in equity. (ed) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there is no judgment, decree or order against Assignor that could prevent, enjoin, alter, or delay any of the transactions contemplated by this Agreement. (fe) Except as set forth in the Assignor’s filing with the Securities and Exchange Commission, there are no material claims, actions, suits, proceedings, inquiries, labor disputes or investigations pending against the Assignor or any of its assets, at law or in equity or by or before any governmental entity or in arbitration or mediation. (gf) No bankruptcy, receivership or debtor relief proceedings are pending or, to Assignor’s knowledge, threatened against Assignor. (hg) Assignor has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order). (ih) Assignor is aware of Assignee’s business affairs and financial condition and has reached an informed and knowledgeable decision to assign the Assets. (ji) There are no liabilities, commitments, contracts, agreements, obligations or other claims against Assignor or the Assets, whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise associated with the Assets. (kj) All representations, covenants and warranties of Assignor contained in this Agreement shall be true and correct on and as of the Closing with the same effect as though the same had been made on and as of such date. Assignor agrees to defend, indemnify, and hold harmless Assignee, its officers, directors, agents and assigns with respect to any claim constituting a breach of the representations or warranties contained in this Agreement. With respect to any such claims, either party shall give the other party prompt notice of the claim. Assignee and Assignor agree to fully cooperate in the defense against claims. The indemnifying party, Assignor, shall pay, upon presentation, a legal retainer, if required, and all of Assignee’s legal fees and costs, expenses, losses, and charges incurred in defending against such suits, as incurred, month to month. Assignee shall not, without the prior written consent of Assignor, the indemnifying party, agree to the settlement, compromise or discharge of such claim, though written consent of Assignor cannot be unreasonably withheld.