Common use of Representations and Warranties of NB Clause in Contracts

Representations and Warranties of NB. NB represents and warrants to the Company that (A) the authorized signatories of NB set forth on the signature pages hereto have the power and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement and to bind NB thereto, (B) this Agreement has been duly authorized, executed and delivered by NB, and assuming due execution by the Company, constitutes a valid and binding obligation of NB, and is enforceable against NB in accordance with its terms except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles, (C) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in a breach or violation of the organizational documents of NB as currently in effect, (D) the execution, delivery and performance of this Agreement by NB does not and will not (1) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to NB or (2) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which such member is a party or by which it is bound, (E) as of the date of this Agreement, NB beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) 4,760,464 Common Shares, (F) as of the date hereof, and except as set forth in clause (E) above, NB does not currently have, and does not currently have any right to acquire, any interest in any securities or assets of the Company or its Affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable (whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence of a specified event) for such securities or assets or any obligations measured by the price or value of any securities of the Company or any of its controlled Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of Common Shares or any other class or series of the Company’s stock, whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act), and whether or not to be settled by delivery of Common Shares, payment of cash or by other consideration, and without regard to any short position under any such contract or arrangement), and (G) NB has not directly or indirectly, compensated or agreed to compensate, and will not, directly or indirectly, compensate or agree to compensate any director or director nominee of the Company for his or her respective service as a director of the Company, including any Agreed Appointee, with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement), or other form of compensation directly or indirectly related to the Company or its securities.

Representations and Warranties of NB. NB represents and warrants to the Company that that (A) the authorized signatories of NB set forth on the signature pages hereto have the power and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement and to bind NB thereto, (B) this Agreement has been duly authorized, executed and delivered by NB, and assuming due execution by the Company, constitutes a valid and binding obligation of NB, and is enforceable against NB in accordance with its terms except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles, (C) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in a breach or violation of the organizational documents of NB as currently in effect, (D) the execution, delivery and performance of this Agreement by NB does not and will not (1) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to NB or (2) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which such member is a party or by which it is bound, (E) as of the date of this Agreement, NB beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) 4,760,464 Common Shares, (F) as of the date hereof, and except as set forth in clause (E) above, NB does not currently have, and does not currently have any right to acquire, any interest in any securities or assets of the Company or its Affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable (whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence of a specified event) for such securities or assets or any obligations measured by the price or value of any securities of the Company or any of its controlled Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of Common Shares or any other class or series of the Company’s stock, whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act), and whether or not to be settled by delivery of Common Shares, payment of cash or by other consideration, and without regard to any short position under any such contract or arrangement), and (G) NB has not directly or indirectly, compensated or agreed to compensate, and will not, directly or indirectly, compensate or agree to compensate any director or director nominee of the Company for his or her respective service as a director of the Company, including any Agreed Appointee, with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement), or other form of compensation directly or indirectly related to the Company or its securities.

Representations and Warranties of NB. NB represents and warrants to the Company that (Aa) the each of NB’s authorized signatories of NB set forth named on the signature pages hereto have page of this Agreement has the power and authority to execute and deliver this Agreement and any other documents or agreements to be entered into in connection with this Agreement and to bind NB theretoAgreement, (Bb) this Agreement has been duly and validly authorized, executed and delivered by NB, and assuming due execution by the Companyeach NB Member that is a signatory hereto, constitutes a valid and valid, binding obligation of NB, each NB Member that is a signatory hereto and is enforceable against each such NB Member in accordance with its terms terms, except as such enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principlesEnforceability Exceptions, (Cc) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, by the Agreement and the fulfillment of the terms hereofof this Agreement, in each case in accordance with the terms hereofof this Agreement, will not conflict with, with or result in a breach or violation of the organizational documents of any such NB Member as currently in effecteffect on the Effective Date, (Dd) the execution, delivery and performance of this Agreement by each such NB Member does not and will not (1i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to such NB Member or (2ii) result in any breach or violation of or constitute a default (or an any event which that with notice or lapse of time or both would could constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which such member NB Member is a party or by which it is bound, (Ee) as of June 5, 2019, NB is deemed to beneficially own in the aggregate 1,743,621 shares of Common Stock and $9,300,000 principal amount of 1.5% Convertible Senior Notes, and (f) as of the date of this Agreement, NB beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) 4,760,464 Common Shares, (F) as of the date hereof, and except as set forth in clause (E) aboveEffective Date, NB does not currently have, and does not currently or have any right to acquire, any interest in any other securities or assets of the Company or its Affiliates (or any rights, options or other securities convertible into or into, exercisable or exchangeable for such securities or any obligations measured by the price or value of any securities of the Company or any of its Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of Common Stock, in each case (i) whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence of a specified event, (ii) for such securities or assets or any obligations measured by the price or value of any securities of the Company or any of its controlled Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of Common Shares or any other class or series of the Company’s stock, whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act), and (iii) whether or not to be settled by delivery of Common SharesStock, payment of cash or by other consideration, and (iv) without regard to any short position under any such contract or arrangement), and (G) NB has not directly or indirectly, compensated or agreed to compensate, and will not, directly or indirectly, compensate or agree to compensate any director or director nominee of the Company for his or her respective service as a director of the Company, including any Agreed Appointee, with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement), or other form of compensation directly or indirectly related to the Company or its securities.