Common use of Representations, Warranties, Covenants and Agreements of the Borrower Clause in Contracts

Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower represents and warrants to, and covenants and agrees with, the Lender as follows: a. The Borrower has the requisite power and authority to execute, deliver this Note and perform the obligations under this Note. This Note constitutes a legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except only as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor's rights generally. b. The Borrower is the sole owner of the Collateral free and clear of any liens, security interests, encumbrances, rights or claims, and is fully authorized to grant the Security Interest in and to pledge the Collateral encumbered thereby. . c. This Note creates in favor of the Lender a valid first priority security interest in the Collateral securing the payment and performance of the obligations hereunder and, upon making the filings permitted to Lender, a perfected first priority security interest in such Collateral. d. On or immediately after the date of execution of this Note, upon request by Lender, the Borrower wxxx xxliver to the Lender one or more executed UCC financing statements on Form-1 with respect to the Security Interest for filing with such jurisdictions as are requested. On or immediately after the date of execution of this Note, upon request by Lender, the Borrower will deliver to the Lender one or more executed irrevocable stock powers or assignments separate from certificate allowing for the transfer of the Collateral to Lender in the event of Default hereunder. e. All information heretofore, herein or hereafter supplied to the Lender by or on behalf of the Borrower with respect to the Collateral is accurate and complete in all material respects as of the date furnished.

Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower represents and warrants to, and covenants and agrees with, the Lender as follows: a. 3.1 The Borrower has the requisite corporate power and authority to executeenter into this Agreement and otherwise to carry out its Obligations. The execution, deliver delivery and performance by the Borrower of this Note Agreement and perform the obligations under this Notefilings contemplated therein have been duly authorized by all necessary action on the part of the Borrower and no further action is required by the Borrower. This Note Agreement constitutes a legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except only as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor's ’s rights generally. b. 3.2 The Borrower represents and warrants that its principal place of business is located in San Diego, California, where its respective books of account and records are kept (other than temporarily at the offices of its attorneys or accountants) or places where Collateral is stored or located, except as set forth on Schedule A attached hereto; 3.3 The Borrower is the sole owner of the Collateral (except for non-exclusive licenses granted by the Borrower in the ordinary course of business), free and clear of any liens, security interests, encumbrances, rights or claims, and is fully authorized to grant the Security Interest in and to pledge the Collateral, there is not on file in any governmental or regulatory authority, agency or recording office an effective financing statement, security agreement, license or transfer or any notice of any of the foregoing (other than those that have been filed in favor of the Lender pursuant to this Agreement) covering or affecting any of the Collateral encumbered therebyexcept as set forth on Exhibit 3(c). So long as this Agreement shall be in effect, the Borrower shall not execute and shall not knowingly permit to be on file in any such office or agency any such financing statement or other document or instrument (except to the extent filed or recorded in favor of the Lender pursuant to the terms of this Agreement). c. 3.4 No part of the Collateral has been judged invalid or unenforceable. No written claim has been received that any Collateral or the Borrower’s use of any Collateral violates the rights of any third party. There has been no adverse decision to the Borrower’s claim of ownership rights in or exclusive rights to use the Collateral in any jurisdiction or to the Borrower’s right to keep and maintain such Collateral in full force and effect, and there is no proceeding involving said rights pending or, to the best knowledge of the Borrower, threatened before any court, judicial body, administrative or regulatory agency, arbitrator or other governmental authority. 3.5 The Borrower shall at all times maintain its books of account and records relating to the Collateral at its principal place of business and its Collateral at the locations set forth on Schedule A attached hereto and may not relocate such books of account and records or tangible Collateral unless it delivers to the Lender at least 30 days prior to such relocation (i) written notice of such relocation and the new location thereof (which must be within the United States) and (ii) evidence that appropriate financing statements and other necessary documents have been filed and recorded and other steps have been taken to perfect the Security Interest to create in favor of the Lender valid, perfected and continuing liens in the Collateral. 3.6 This Note Agreement creates in favor of the Lender a valid first priority security interest in the Collateral securing the payment and performance of the obligations hereunder and, upon making the filings permitted to Lender, a perfected first priority security interest in such CollateralObligations. d. 3.7 On or immediately after the date of execution of this Note, upon request by LenderAgreement, the Borrower wxxx xxliver will deliver to the Lender one or more executed UCC financing statements on Form-1 with respect to the Security Interest for filing with the jurisdictions indicated on Schedule B, attached hereto and in such other jurisdictions as are requested. On or immediately after may be requested by the date of execution Lender. 3.8 The execution, delivery and performance of this NoteAgreement does not conflict with or cause a breach or default, upon or an event that with or without the passage of time or notice, shall constitute a breach or default, under any agreement to which the Borrower is a party or by which the Borrower is bound. No consent (including, without limitation, from stock holders or creditors of the Borrower) is required for the Borrower to enter into and perform its Obligations hereunder. 3.9 The Borrower shall at all times cooperate with the Lender in maintaining the liens and Security Interest provided for hereunder as valid and perfected, first priority, liens and security interests in the Collateral in favor of the Lender until this Agreement and the Security Interest hereunder shall terminate pursuant to Section 11. The Borrower hereby agrees to defend the same against any and all persons. The Borrower shall safeguard and protect all Collateral for the account of the Lender. At the request by of the Lender, the Borrower will sign and deliver to the Lender at any time or from time to time one or more executed irrevocable stock powers financing statements pursuant to the UCC (or assignments separate any other applicable statute) in form reasonably satisfactory to the Lender and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Lender to be, necessary or desirable to effect the rights and Obligations provided for herein. Without limiting the generality of the foregoing, the Borrower shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interest hereunder, and the Borrower shall obtain and furnish to the Lender from certificate allowing for time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the transfer priority of the Security Interest hereunder. 3.10 The Borrower shall keep and preserve its Equipment, Inventory and other tangible Collateral in good condition, repair and order and shall not operate or locate any such Collateral (or cause to be operated or located) in any area excluded from insurance coverage. 3.11 The Borrower shall, within ten (10) days of obtaining knowledge thereof, advise the Lender promptly, in sufficient detail, of any substantial change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Lender’s security interest therein. 3.12 The Borrower shall promptly execute and deliver to the Lender such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as the Lender may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce its security interest in the Collateral including, without limitation, the execution and delivery of a separate security agreement with respect to the Borrower’s intellectual property (“Intellectual Property Security Agreement”) in which the Lender has been granted a security interest hereunder, substantially in a form acceptable to the Lender, which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof. 3.13 The Borrower shall permit the Lender and its representatives and agents to inspect the Collateral at any time during reasonable business hours, and to make copies of records pertaining to the Collateral as may be requested by the Lender from time to time, so long as the Lender provides the Borrower with reasonable prior notice. 3.14 The Borrower will take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral. 3.15 The Borrower shall promptly notify the Lender in sufficient detail upon becoming aware of any attachment, garnishment, execution or other legal process levied against any Collateral and of any other information received by the event Borrower that may materially affect the value of Default the Collateral, the Security Interest or the rights and remedies of the Lender hereunder. e. 3.16 All information heretofore, herein or hereafter supplied to the Lender by or on behalf of the Borrower with respect to the Collateral is accurate and complete in all material respects as of the date furnished.

Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower represents and warrants to, and covenants and agrees with, the Lender as follows: a. The Borrower has the requisite power and authority to execute, deliver this Note and perform the obligations under this Note. This Note constitutes a legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except only as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor's rights generally. b. The Borrower is the sole owner of the Collateral free and clear of any liens, security interestsinterest, encumbrances, rights or claims, and is fully authorized to grant the Security Interest in and to pledge the Collateral encumbered thereby. . c. This Note creates in favor of the Lender a valid first priority security interest in the Collateral securing the payment and performance of the obligations hereunder and, upon making the filings permitted to Lender, a perfected first priority security interest in such Collateral. d. . On or immediately after the date of execution of this Note, upon request by Lender, the Borrower wxxx xxliver will deliver to the Lender one or more executed UCC financing statements on Form-1 Form-I with respect to the Security Interest for filing with such jurisdictions as are requested. On or immediately after the date of execution of this Note, upon request by Lender, the Borrower will deliver to the Lender one or more executed irrevocable stock powers or assignments separate from certificate allowing for the transfer of the Collateral to Lender in the event of Default hereunder. e. d. All information heretofore, herein or hereafter supplied to the Lender by or on behalf of the Borrower with respect to the Collateral is accurate and complete in all material respects as of the date furnished.