Common use of Representations and Warranties of Each Grantor Clause in Contracts

Representations and Warranties of Each Grantor. Each Grantor represents, warrants and agrees as follows: a. Such Grantor has the power and authority to execute and deliver this Option and to perform its obligations hereunder, all of which have been duly authorized by all requisite action. This Option has been duly authorized, executed and delivered by such Grantor and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. b. Such Grantor owns of record and beneficially, and shall continue to own throughout the Exercise Period, all of the Option Shares subject to this Option and a sufficient number of other issued and outstanding shares of Common Stock to satisfy its obligations under any other option agreements (issued contemporaneously herewith or otherwise) and any other agreements for the sale, delivery or transfer of any shares of Common Stock or other commitments of similar character (the “Other Options”). All Option Shares are, and when delivered to the Holder upon exercise of this Option shall be, validly issued, fully paid and non-assessable, shall be free from all taxes, liens, encumbrances, charges or claims (other than any encumbrances created by or imposed upon the Holder). c. Other than certain option agreements which are substantially identical to this Option and entered into on even date herewith, such Grantor has not entered into any agreement, arrangement or other understanding (i) granting any option, warrant or right of first refusal with respect to the Option Shares to any person, (ii) restricting its right to enter into this Option or sell the Option Shares to the Holder upon the exercise of this Option, or (iii) restricting any other of its rights with respect to the Option Shares. d. The execution, delivery and performance of this Option, the transfer of shares of Common Stock by such Grantor into escrow to enable it to satisfy this Option and the Other Options and the sale of the Option Shares by such Grantor to the Holder upon exercise of this Option do not and will not (i) conflict with or constitute a violation of, or default (with the passage of time or the delivery of notice) under, (A) any agreement or instrument to which such Grantor is a party or by which it or any of its property is bound or (B) any law, administrative regulation, ordinance or judgment, order or decree of any court or governmental agency, arbitration panel or authority binding upon such Grantor or any of its property, or (ii) violate its organizational documents. e. Other than any filings that may need to be made under Section 16 of the Exchange Act and the filing of any Exchange Act Schedule 13D or 13G (or amendments thereto), as applicable, no authorization, approval, consent or order of or registration or filing with any governmental or regulatory authority, commission, board, body or agency is required for the execution, delivery and performance of this Option, the transfer of shares of Common Stock by such Grantor into escrow to enable it to satisfy this Option and the Other Options and the sale of the Option Shares by such Grantor to the Holder upon exercise of this Option. f. Such Grantor, jointly and severally with respect to the other Grantors, shall indemnify, defend and hold harmless each of the Holder and its agents, shareholders, partners, members, officers, directors, representatives, investment advisors and affiliates (each an “Indemnitee” and collectively, the “Indemnitees”) from and against any and all losses, damages, liabilities, claims and expenses, including reasonable attorneys’ fees, sustained by any Indemnitee resulting from or arising out of any material inaccuracy in, breach of, or non-fulfillment of any representation, warranty, covenant or agreement made by or other obligation of the Grantors contained in this Option.

Representations and Warranties of Each Grantor. Each Grantor representsrepresents and warrants to the Administrative Agent, warrants and agrees for the benefit of the Secured Parties, as follows: a. (i) Such Grantor owns and has good and marketable title to all of its Collateral, free and clear of any Liens other than Liens permitted pursuant to Section 6.01 of the Credit Agreement and has rights in and the power to transfer each item of the Collateral upon which it purports to ▇▇▇▇▇ ▇ ▇▇▇▇ hereunder. (ii) Such Grantor has the power right and authority power, and has taken all necessary action to execute authorize it, to execute, deliver and deliver perform this Option and to perform its obligations hereunder, all of which have been duly authorized by all requisite action. This Option has been duly authorized, executed and delivered by such Grantor and constitutes its valid and binding obligation, enforceable against it Agreement in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. b. Such Grantor owns of record and beneficially, and shall continue to own throughout the Exercise Period, all of the Option Shares subject to this Option and a sufficient number of other issued and outstanding shares of Common Stock to satisfy its obligations under any other option agreements (issued contemporaneously herewith or otherwise) and any other agreements for the sale, delivery or transfer of any shares of Common Stock or other commitments of similar character (the “Other Options”). All Option Shares are, and when delivered to the Holder upon exercise of this Option shall be, validly issued, fully paid and non-assessable, shall be free from all taxes, liens, encumbrances, charges or claims (other than any encumbrances created by or imposed upon the Holder). c. Other than certain option agreements which are substantially identical to this Option and entered into on even date herewith, such Grantor has not entered into any agreement, arrangement or other understanding (i) granting any option, warrant or right of first refusal with respect to the Option Shares to any person, (ii) restricting its right to enter into this Option or sell the Option Shares to the Holder upon the exercise of this Option, or (iii) restricting any other of its rights with respect to the Option Shares. d. The execution, delivery and performance of this OptionAgreement in accordance with its terms, including the transfer of shares of Common Stock by such Grantor into escrow to enable it to satisfy this Option and the Other Options and the sale granting of the Option Shares by such Grantor to the Holder upon exercise of this Option Security Interest hereunder, do not and will not (i) conflict with or constitute a violation ofnot, or default (with by the passage of time time, the giving of notice, or both: (A) require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, and except for filings required by applicable securities laws and regulations, which filings have been made or will be made on or prior to the date on which such filings are required to be made; (B) violate any Requirements of Law applicable to any Grantor or any judgment, order or ruling of any Governmental Authority binding on any Grantor; (C) violate or result in a default under any indenture, agreement or other instrument binding on any Grantor or any of its assets or give rise to a right thereunder to require any payment to be made by any Grantor which could have a Material Adverse Effect; and (D) result in or require the creation or imposition of any material Lien upon any of the properties or assets of any Grantor (other than any Liens created under any of the Loan Documents in favor of Administrative Agent) whether now owned or hereafter acquired. (iii) The Security Interests shall constitute a legal, valid and perfected security interest in favor of the Administrative Agent, for the benefit of the Secured Parties, in the Collateral, including the Intellectual Property, required to be perfected in accordance with the terms of the Loan Documents and for which perfection is governed by the UCC or filing with the United States Patent and Trademark Office or the United States Copyright Office upon (A) in the case of Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings in each governmental, municipal or other office as is necessary to publish notice of the Security Interests, (B) the delivery to the Administrative Agent of noticeall Collateral consisting of Instruments and Investment Property in certificated form, in each case properly endorsed for transfer to the Administrative Agent or in blank, and (C) underto the extent not subject to Article 9 of the UCC, upon recordation or other appropriate filings of the Security Interests in Patents, Trademarks and Copyrights in the applicable intellectual property registries, including, but not limited to, the United States Copyright Office and the United States Patent and Trademark Office. The Security Interests constitute or will constitute, upon satisfaction of such filings, registrations and recordings, a perfected security interest therein superior and prior to the rights of all other Persons therein (other than rights pursuant to Liens permitted pursuant to Section 6.01 of the Credit Agreement which are prior as a matter of law) and subject to no other Liens (other than Liens permitted under Section 6.01 of the Credit Agreement) and are entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfected security interests. (iv) Other than financing statements, security agreements, or other similar or equivalent documents or instruments with respect to Liens permitted pursuant to Section 6.01 of the Credit Agreement, no financing statement, mortgage, security agreement or similar or equivalent document or instrument evidencing a Lien on all or any part of the Collateral is on file or of record in any jurisdiction. None of the Collateral is in the possession of a Person asserting any claim thereto or security interest therein, except that the Administrative Agent or its designee may have possession of Collateral as contemplated hereby. (v) All Inventory and Equipment is insured in accordance with the requirements set forth in the Loan Documents. (vi) Each Grantor (A) is a corporation, limited liability company, limited partnership or limited liability partnership duly organized, validly existing and/or in good standing (as applicable) under the laws of the state or jurisdiction of its organization as set forth on Schedule 4 hereto, (B) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and to execute, deliver and perform this Agreement and (C) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, other than in such jurisdictions where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect. (vii) This Agreement, when executed and delivered, will be, a legal, valid and binding obligation of such Grantor, enforceable against such Grantor in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity. (viii) All federal, foreign, state and local Tax returns and other reports required by any Requirement of Law to be filed by any Grantor with respect to any material Tax have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon any Grantor or any property of such Grantor (including, without limitation, all federal income and social security taxes on employee’s wages and all sales taxes), which have become due and payable on or prior to the date hereof, have been paid, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or as otherwise permitted under the Credit Agreement. (ix) None of the Collateral constitutes, or is the Proceeds of Farm Products, As-Extracted Collateral, Manufactured Homes, timber to be cut, or aircraft, aircraft engines, satellites, ships or railroad rolling stock. No material portion of the Collateral consists of motor vehicles or other goods subject to certificate of title statutes of any jurisdiction. (x) Schedule 4 correctly sets forth, as of the date hereof, each Grantor’s state of organization, organizational identification number and correct legal name as indicated on the public record of such Grantor’s jurisdiction of organization. (xi) Schedule 1(c) of the Perfection Certificate correctly sets forth, as of the date hereof, all names that each Grantor has used within the last five (5) years and the names of all Persons that have merged into or been acquired by such Grantor. (xii) Schedule 1(c)of the Perfection Agreement correctly sets forth, as of the date hereof, all trade names that each Grantor has used within the last five (5) years. (xiii) Schedule 2 of the Perfection Certificate correctly sets forth, as of the date hereof, each Grantor’s chief executive office. (xiv) Schedule 12 of the Perfection Certificate correctly sets forth, as of the date hereof, all letters of credit under which any Grantor is a beneficiary, and Grantor has obtained the consent of each issuer of any letter of credit to the assignment of the Proceeds of the letter of credit to the Administrative Agent. (xv) Schedule 1 correctly sets forth, as of the date hereof, all Commercial Tort Claims owned by any Grantor. (xvi) With respect to any Inventory granted as Collateral hereunder, (A) each Grantor has good, indefeasible and merchantable title to its Inventory and such Inventory is not subject to any Lien or security interest or document whatsoever, except for Liens permitted pursuant to Section 6.01 of the Credit Agreement, (B) except as specifically disclosed to the Administrative Agent in writing, such Inventory is of good and merchantable quality, free from any defects, (C) such Inventory is not subject to any licensing, patent, royalty, trademark, trade name or copyright agreements with any third parties that would require any consent of any third party upon sale or disposition of that Inventory or the payment of any monies to any third party upon such sale or other disposition, and (D) the completion of manufacture, sale or other disposition of such Inventory by the Administrative Agent following an Event of Default shall not require the consent of any Person and shall not constitute a breach or default under any contract or agreement or instrument to which such Grantor is a party or by to which it or any of its such property is bound subject. (xvii) All Intellectual Property owned by such Grantor is valid, subsisting, enforceable, unexpired and in full force and effect. The use of Intellectual Property, or of embodiments thereof, in the business of such Grantor does not infringe, misappropriate, dilute or violate in any material respect the intellectual property rights of any other Person. Each Grantor has taken all steps reasonably required to protect such Grantor’s rights in trade secrets constituting Intellectual Property developed by or for such Grantor, including using commercially reasonable efforts to ensure that no trade secrets constituting Intellectual Property owned or licensed by such Grantor are authorized to be used or disclosed by such Grantor to any third party, other than pursuant to a written non-disclosure agreement that adequately protects the proprietary interests of such Grantor in and to such trade secrets. (xviii) No authorization, approval or other action by, and no notice to or filing with any Governmental Authority is required for either (A) the pledge or grant by any Grantor of the Security Interests purported to be created in favor of the Administrative Agent for the benefit of the Secured Parties hereunder, or (B) any law, administrative regulation, ordinance or judgment, order or decree the exercise by the Administrative Agent of any court rights or remedies in respect of any Collateral, except for the filings contemplated hereunder and as may be required in connection with the disposition of any Collateral. (xix) There is no action, suit, proceeding, governmental agencyinvestigation or arbitration, arbitration panel at law or authority binding upon such in equity, or before or by any Governmental Authority, pending, or to the knowledge of any Grantor, threatened against any Grantor or such Grantor’s property that will materially and adversely affect the ability of any Grantor to perform its obligations under this Agreement, including, without limitation, the granting of the Security Interests in any of its property, or (ii) violate its organizational documentsthe Collateral. e. Other than (xx) All information with respect to the Collateral set forth in any filings that may need to be made under Section 16 of the Exchange Act and the filing of schedule, certificate or other writing at any Exchange Act Schedule 13D time heretofore or 13G (or amendments thereto), as applicable, no authorization, approval, consent or order of or registration or filing with any governmental or regulatory authority, commission, board, body or agency is required for the execution, delivery and performance of this Option, the transfer of shares of Common Stock by such Grantor into escrow to enable it to satisfy this Option and the Other Options and the sale of the Option Shares hereafter furnished by such Grantor to the Holder upon exercise of this Option. f. Such GrantorAdministrative Agent or any other Secured Party, jointly and severally with respect all other written information heretofore or hereafter furnished by such Grantor to the Administrative Agent or any other GrantorsSecured Party, shall indemnify, defend is and hold harmless each will be true and correct in all material respects as of the Holder and its agents, shareholders, partners, members, officers, directors, representatives, investment advisors and affiliates (each an “Indemnitee” and collectively, the “Indemnitees”) from and against any and all losses, damages, liabilities, claims and expenses, including reasonable attorneys’ fees, sustained by any Indemnitee resulting from or arising out of any material inaccuracy in, breach of, or non-fulfillment of any representation, warranty, covenant or agreement made by or other obligation of the Grantors contained in this Optiondate furnished.