Representation and Warranty Contract Clauses (8,376)

Grouped Into 318 Collections of Similar Clauses From Business Contracts

This page contains Representation and Warranty clauses in business contracts and legal agreements. We have organized these clauses into groups of similarly worded clauses.
Representation and Warranty. 9.1 Borrower hereby represents and warrants that no Event of Default or failure of condition has occurred or exists, or would exist with notice or lapse of time or both under any of the Loan Agreement, other than the Existing Default. 9.2 The forbearance period granted pursuant to the terms of this Amendment is reasonable and is based upon the projections of Borrower. 9.3 All representations and warranties of Borrower in this Amendment and the Loan Agreement are true and correct as of the date h...ereof, and shall survive the execution of this Amendment. 9.4 All of Borrower's deposit accounts (including operating and payroll accounts) and investment accounts are with Bank other than those permitted under the Loan Agreement. View More
Representation and Warranty. 9.1 7.1 Borrower hereby represents and warrants that no Event of Default or failure of condition has occurred or exists, or would exist with notice or lapse of time or both under any of the Loan Agreement, other than the Existing Default. 9.2 The forbearance period granted pursuant to the terms of this Amendment is reasonable and is based upon the projections of Borrower. 9.3 7.2 All representations and warranties of Borrower in this Amendment and the Loan Agreement are true and correct in all m...aterial respects as of the date hereof, and shall survive the execution of this Amendment. 9.4 7.3 All of Borrower's deposit accounts (including operating and payroll accounts) and investment accounts are with Bank other than those permitted under the Loan Agreement. View More
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Representation and Warranty. You represent that (i) your execution of this Agreement and your performance of your services hereunder do not and will not breach any other agreement, arrangements, understanding, obligation of confidentiality or employment relationship to which you are a party or by which you are bound and that during the term of this Agreement or any extensions thereof, you will not enter into any agreement, either written or oral, in conflict herewith, and (ii) you have such knowledge and experience in finan...cial, business and tax matters that you are capable of adequately evaluating and analyzing the merits and risks relating to your investment in the Acquired Units and that you are an "accredited investor" within the meaning of Rule 501 of Regulation D of the Securities Act of 1933, as amended. You also acknowledge and agree that you shall not provide to the Company or use in connection with your employment by the Company any proprietary or confidential information or intellectual property of any of your previous employers. View More
Representation and Warranty. You represent that (i) your execution of this Agreement and your performance of your services hereunder do not and will not breach any other agreement, arrangements, understanding, obligation of confidentiality or employment relationship to which you are a party or by which you are bound and that during the term of this Agreement or any extensions thereof, you will not enter into any agreement, either written or oral, in conflict herewith, and (ii) you have such knowledge and experience in finan...cial, business and tax matters that you are capable of adequately evaluating and analyzing the merits and risks relating to your investment in the Acquired Units granted hereunder and that you are an "accredited investor" within the meaning of Rule 501 50 I of Regulation D of the Securities Act of 1933, as amended. You also acknowledge and agree that you shall not provide to the Company or use in connection with your employment by the Company any proprietary or confidential information or intellectual property of any of your previous employers. View More
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Representation and Warranty. Sublandlord represents and warrants to Subtenant as follows: (a) On Subtenant paying rent and all other amounts payable by Subtenant under this Sublease and observing and performing all of the terms, covenants and conditions on Subtenant's part to be observed and performed under this Sublease within any applicable notice and cure period given to Subtenant in this Sublease, Subtenant shall have quiet use and enjoyment of the Subleased Premises for the Sublease Term without interference, hindrance... or interruption from Sublandlord or anyone claiming by, through or under Sublandlord, subject to all of the provisions of this Sublease. -8- (b) The Lease attached as Exhibit A to this Sublease is a true, correct and complete copy of the Lease. Also attached are all existing modifications, amendments and supplements thereto, and all of those attachments are the only existing agreements between Landlord and Sublandlord with respect to the Subleased Premises. (c) Sublandlord holds the entire leasehold estate to the Subleased Premises and has not previously assigned any of its rights under the Lease or subleased any portion of the Subleased Premises. (d) Sublandlord has the full and complete right to enter into this Sublease without the consent of any other person, other than Landlord. (e) To Sublandlord's current, actual knowledge, all of the obligations and conditions that are required to have been performed or observed by Landlord on or prior to the date of this Sublease under the terms of the Lease have been duly performed and observed. (f) To Sublandlord's current, actual knowledge, neither Landlord nor Sublandlord is currently in breach or default under the Lease, and no event has occurred which, with the giving of notice of the passage of time or both, would constitute such a breach or default. View More
Representation and Warranty. As of the date hereof, Sublandlord hereby represents and warrants to Subtenant as follows: (a) On Subtenant paying rent and all other amounts payable by Subtenant under this Sublease and observing and performing all (i) the copy of the terms, covenants and conditions on Subtenant's part to be observed and performed under this Sublease within any applicable notice and cure period given to Subtenant in this Sublease, Subtenant shall have quiet use and enjoyment of the Subleased Premises for the Su...blease Term without interference, hindrance or interruption from Sublandlord or anyone claiming by, through or under Sublandlord, subject to all of the provisions of this Sublease. -8- (b) The Lease attached as Exhibit A to this Sublease is a true, correct and complete copy complete; (ii) Sublandlord has not assigned, subleased or otherwise transferred or encumbered its interest in and to the Lease or the Premises; (iii) the term of the Lease. Also attached are Lease expires on December 31, 2021; (iv) Sublandlord has fully performed all existing modifications, amendments and supplements thereto, of its obligations under the Lease, including, without limitation, payment of all rent and all of those attachments are the only existing agreements between other sums and amounts due to Landlord and from Sublandlord with respect to the Subleased Premises. (c) Sublandlord holds the entire leasehold estate to the Subleased Premises and has not previously assigned any of its rights under the Lease or subleased any portion as of the Subleased Premises. (d) date hereof; (v) Sublandlord has the full and complete right to enter into this Sublease without the consent not received any written notice of any other person, other than Landlord. (e) To uncured default under the Lease and, to Sublandlord's current, actual knowledge, all of the obligations and conditions that are required to have been performed or observed by Landlord on or prior to the date of this Sublease under the terms of the Lease have been duly performed and observed. (f) To Sublandlord's current, actual knowledge, neither Landlord nor Sublandlord is not currently in breach or default under any term or provision of the Lease, and no circumstances exist or event has occurred which, with the giving pursuant to which Sublandlord may be deemed in default merely upon service of notice of or the passage of time time; (vi) to Sublandlord's actual knowledge, Landlord is not currently in default under any term or both, provision of the Lease, and no circumstances exist or event has occurred pursuant to which Landlord may be deemed in default merely upon service of notice or the passage of time; (vii) Sublandlord shall perform all obligations of Tenant under the Lease (other than those required to be performed by Subtenant hereunder) and shall not (A) amend or modify any portions of the Lease that would constitute such a breach materially and directly affect the Subleased Space or default. Subtenant's rights under the Sublease without Subtenant's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, (B) terminate the Lease or surrender the Subleased Space, or (C) take any action or suffer any inaction that would permit the Landlord to terminate the Lease; and (viii) Sublandlord is not the subject of any litigation now pending or, to the best of Sublandlord's knowledge, threatened in writing, which would materially impair the ability of Sublandlord to pay and perform Sublandlord's obligations under the Lease and this Sublease. View More
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Representation and Warranty. The Company represents and warrants, as of the date hereof, that, after giving effect to the provisions of this Amendment: (a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment. (b) This Amendment has been duly executed and delivered by the Company and constitutes the Company's legal, valid and binding obligation, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or simila...r laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability. (c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Company of this Amendment; provided that, for the avoidance of doubt, it is acknowledged that the Company may need to make certain filings in connection with its reporting obligations under the Exchange Act. (d) Each of the representations and warranties made by the Company in Article 5 of the Credit Agreement is true in all material respects on and as of the date hereof as if made on and as of the date hereof, except (i) to the extent that such representations and warranties refer to an earlier date, in which case they were true in all material respects as of such earlier date or (ii) to the extent that such representations and warranties are qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true in all respects. (e) No Default or Event of Default has occurred and is continuing. View More
Representation and Warranty. The Company Borrower represents and warrants, as of the date hereof, that, after giving effect to the provisions of this Amendment: (a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment. (b) This Amendment has been duly executed and delivered by the Company Borrower and constitutes the Company's Borrower's legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be limited by applicable... subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or by equitable principles relating to enforceability. in equity). (c) No consent, approval, consent, exemption, authorization, authorization or other action by, order of, or notice to, filing, registration or filing qualification with, any Governmental Authority court or governmental authority or third party is necessary or required in connection with the execution, delivery or performance by, or enforcement against, by the Company Borrower of this Amendment; provided that, for the avoidance of doubt, it is acknowledged that the Company may need to make certain filings in connection with its reporting obligations under the Exchange Act. Amendment. (d) Each of the representations and warranties made by the Company Borrower in Article 5 IV of the Credit Agreement is true in all material respects on and as of the date hereof as if made on and as of the date hereof, except (i) to the extent that such representations and warranties refer to an earlier date, in which case they were true in all material respects as of such earlier date or (ii) to the extent that such representations and warranties are qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true in all respects. (e) No Default or Event of Default has occurred and is continuing. (f) The obligations under the Credit Agreement are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims. View More
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Representation and Warranty. The Borrower represents and warrants as of the date hereof that, after giving effect to this Amendment, (i) the representations and warranties of the Borrower set forth in Article V of the Credit Agreement will be true in all material respects on and as of the date hereof and (ii) no Default will have occurred and be continuing on such date. It is understood and agreed that the representations and warranties made by the Borrower in this paragraph are subject to the terms of Section 4.03 of the C...redit Agreement. View More
Representation and Warranty. The Borrower represents and warrants as of the date hereof that, after giving effect to this Amendment, (i) the representations and warranties of the Borrower set forth in Article V of the Credit Agreement will be true in all material respects on and as of the date hereof and (ii) no Default will have occurred and be continuing on such date. It is understood and agreed that the representations and warranties made by the Borrower in this paragraph are subject to the terms of Section 4.03 4.04 of ...the Credit Agreement. View More
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Representation and Warranty. ImmunoGen represents and warrants to Bayer that: (a) the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate ImmunoGen corporate action; (b) this Agreement is a legal and valid obligation binding upon ImmunoGen and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to whi...ch ImmunoGen is a party or by which it is bound; (c) to ImmunoGen's knowledge, as of the Effective Date none of the patents within the Licensed Patent Rights is invalid or unenforceable; and (d) as of the 41 Portions of this Exhibit, indicated by the mark "[***]," were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant's application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. CONFIDENTIAL TREATMENT REQUESTED Effective Date, ImmunoGen has received no notice from a Third Party claiming that the exercise of the license granted hereunder to Bayer will infringe the issued patents of any such Third Party. 9.2 Bayer Representations. Bayer represents and warrants to ImmunoGen that: (a) the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate Bayer corporate action; and (b) this Agreement is a legal and valid obligation binding upon Bayer and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which Bayer is a party or by which it is bound. 9.3 Warranty Disclaimers. (a) Nothing in this Agreement is or shall be construed as a warranty or representation by ImmunoGen as to the validity or scope of any patent application or patent within the Licensed Patent Rights. (b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. View More
Representation and Warranty. ImmunoGen represents and warrants to Bayer Lilly that: (a) it is duly incorporated, validly existing and in good standing under the execution Applicable Laws of the jurisdiction of its incorporation and delivery of has full corporate power and authority to enter into this Agreement and to carry out the performance of the transactions contemplated hereby have been duly authorized by all appropriate ImmunoGen corporate action; (b) this Agreement is a legal and valid obligation binding upon ImmunoG...en and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which ImmunoGen is a party or by which it is bound; (c) to ImmunoGen's knowledge, as of the Effective Date none of the patents within the Licensed Patent Rights is invalid or unenforceable; and (d) as of the provisions hereof; 41 Portions of this Exhibit, indicated by the mark "[***]," were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant's application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. CONFIDENTIAL TREATMENT REQUESTED Effective Date, ImmunoGen has received no notice from a Third Party claiming that the exercise of the license granted hereunder to Bayer will infringe the issued patents of any such Third Party. 9.2 Bayer Representations. Bayer represents and warrants to ImmunoGen that: (a) (b) the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate Bayer ImmunoGen corporate action; and (b) (c) this Agreement is a legal and valid obligation binding upon Bayer ImmunoGen and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with or result in any default under any agreement, instrument or understanding to which Bayer ImmunoGen is a party or by which it is bound; (d) to ImmunoGen's knowledge, as of the Effective Date none of the issued patents within the Licensed Patent Rights is invalid or unenforceable; (e) as of the Effective Date, ImmunoGen has received no written notice from a Third Party claiming that the use of the Licensed Intellectual Property pursuant to the license granted hereunder to Lilly will infringe the issued patents of any such Third Party; and (f) as of the Effective Date, there is no pending or, to ImmunoGen's knowledge (without having conducted, or having any duty to conduct, any inquiry), threatened, litigation that alleges that the use of the Licensed Intellectual Property pursuant to the license granted hereunder to Lilly would infringe or misappropriate any intellectual property rights of any Third Party. 9.2 Lilly Representations. Lilly represents and warrants to ImmunoGen that: (a) it is duly incorporated, validly existing and in good standing under the Applicable Laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate Lilly corporate action; and (c) this Agreement is a legal and valid obligation binding upon Lilly and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with or result in a default under any agreement, instrument or understanding to which Lilly is a party or by which it is bound. 42 Portions of this Exhibit, indicated by the mark "[***]," were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant's application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. CONFIDENTIAL TREATMENT REQUESTED 9.3 Warranty Disclaimers. (a) Nothing Except as expressly set forth in Section 9.1 hereof, nothing in this Agreement is or shall be construed as a warranty or representation by ImmunoGen (i) as to the validity or scope of any patent application or patent within the Licensed Patent Rights. Rights or (ii) that anything made, used, sold or otherwise disposed of under any license granted in this Agreement is or will be free from infringement of patents, copyrights, and other rights of Third Parties. (b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. View More
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Representation and Warranty. To induce Holder to accept this Note, Maker represents and warrants that (a) Maker is duly organized and validly existing in good standing under the laws of the State of Delaware, with full power and authority to make, deliver and perform this Note, (b) the execution, delivery and performance by Maker of this Note have been duly authorized and do not and will not violate or conflict with its organizational documents or, in any material respect, any law, rule, regulation or order binding on Maker... or any agreement or instrument to which Maker is a party or which may be binding on Maker, (c) this Note has been duly executed by an authorized officer of Maker and constitutes a legal, valid and binding obligation of Maker, enforceable against Maker in accordance with its terms, except as may be limited by principles of equity, (d) no authorization, consent, approval, license or exemption from, or filing or registration with, any court or government or governmental agency is or will be necessary to the valid execution, delivery or performance by Maker of this Note, (e) the exact legal name of Maker is set forth in the introductory paragraph of this Note, and (f) the loan evidenced hereby constitutes a business loan under applicable law. 2 5. Covenants. Until such time as all obligations hereunder have been paid in full, Maker hereby covenants and agrees with Holder that Maker shall (a) preserve and maintain its separate legal existence and all rights, franchises, licenses, permits, approvals and privileges of all governmental authorities and other persons necessary to the conduct of its business; (b) observe and remain in compliance with all of the terms and conditions of its organizational documents and all requirements of law, in each case, as necessary to the conduct of its business; (c) keep and maintain complete and accurate books and records of all Collateral in form and substance reasonably satisfactory to Holder; (d) give Holder prompt written notice of the commencement of, or the threat in writing by any person to commence, any action (including self-help) or proceeding for the purpose of enforcing or protecting any actual or alleged lien upon or security interest in any of the Collateral, and including any foreclosure, repossession, attachment, execution or other process regarding any of the Collateral; and (e) promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Holder may reasonably request, in order to perfect and protect the security interest granted or purported to be granted hereby or to enable Holder to exercise and enforce its rights and remedies hereunder with respect to any Collateral. View More
Representation and Warranty. To induce Holder to accept this Note, Maker represents and warrants that (a) Maker is duly organized and validly existing in good standing under the laws of the State of Delaware, with full power and authority to make, deliver and perform this Note, (b) the execution, delivery and performance by Maker of this Note have been duly authorized and do not and will not violate or conflict with its organizational documents or, in any material respect, any law, rule, regulation or order binding on Maker... or any agreement or instrument to which Maker is a party or which may be binding on Maker, (c) this Note has been duly executed by an authorized officer of Maker and constitutes a legal, valid and binding obligation of Maker, enforceable against Maker in accordance with its terms, except as may be limited by principles of equity, (d) no authorization, consent, approval, license or exemption from, or filing or registration with, any court or government or governmental agency is or will be necessary to the valid execution, delivery or performance by Maker of this Note, (e) the exact legal name of Maker is set forth in the introductory paragraph of this Note, and (f) the loan evidenced hereby constitutes a business loan under applicable law. 2 5. Covenants. Until such time as all obligations hereunder have been paid in full, Maker hereby covenants and agrees with Holder that Maker shall (a) preserve and maintain its separate legal existence and all rights, franchises, licenses, permits, approvals and privileges of all governmental authorities and other persons necessary to the conduct of its business; (b) observe and remain in compliance with all of the terms and conditions of its organizational documents and all requirements of law, in each case, as necessary to the conduct of its business; (c) keep and maintain complete and accurate books and records of all Collateral in form and substance reasonably satisfactory to Holder; (d) give Holder prompt written notice of the commencement of, or the threat in writing by any person to commence, any action (including self-help) or proceeding for the purpose of enforcing or protecting any actual or alleged lien upon or security interest in any of the Collateral, and including any foreclosure, repossession, attachment, execution or other process regarding any of the Collateral; and (e) promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Holder may reasonably request, in order to perfect and protect the security interest granted or purported to be granted hereby or to enable Holder to exercise and enforce its rights and remedies hereunder with respect to any Collateral. View More
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Representation and Warranty. Each Party (as Borrower or parent of a Borrower) and each subsidiary of a Party which becomes a Borrower, represents and warrants to the other Party (as Lender) that on the date hereof, and on the date that each and every Loan is made to such Person after the date hereof: 4.1 NON-CONTRAVENTION. The execution and delivery by such Party (and, if applicable, the deemed joinder by any such subsidiary) of this Agreement, the other Loan Documents to which it is a party, and the performance by such Bor...rower of its obligations hereunder and thereunder: (i) are not in contravention of any provision of such Borrower's organizational documents; (ii) will not violate any law or regulation, or any order or decree of any court or governmental instrumentality; (iii) will not conflict with or result in the breach or termination of, constitute a default under, or accelerate any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Party or such Borrower is a party or by which such Party or such Borrower or any of such Party's or such Borrower's property is bound; (iv) will not result in the creation or imposition of any Lien upon any of the property of such Party or such Borrower other than those in favor of the applicable Lender; and (v) do not require the consent or approval of any governmental body, agency, authority or any other Person except such consents as have been obtained, except, in the case of each of (ii), (iii), (iv) and (v), for any violation or conflict which would not reasonably be expected to have a Material Adverse Effect. 4 4.2 ENFORCEABLE OBLIGATIONS. This Agreement and the other Loan Documents to which such Party is a party have been duly and validly executed by such Party (or deemed executed in the case of a subsidiary Borrower) and constitute the legal, valid, and binding obligations of such Party or such Borrower, as the case may be, enforceable against such Person in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization or similar laws generally affecting the enforcement of the rights of creditors. View More
Representation and Warranty. Each Party (as Borrower or parent of a Borrower) and each subsidiary of a Party which becomes a Borrower, represents and warrants to the other Party (as Lender) that on the date hereof, and on the date that each and every Loan is made to such Person after the date hereof: 4.1 NON-CONTRAVENTION. The execution and delivery by such Party (and, if applicable, the deemed joinder by any such subsidiary) of this Agreement, the other Loan Documents to which it is a party, and the performance by such Bor...rower of its obligations hereunder and thereunder: (i) are not in contravention of any provision of such Borrower's organizational documents; (ii) will not violate any law or regulation, or any order or decree of any court or governmental instrumentality; (iii) will not conflict with or result in the breach or termination of, constitute a default under, or accelerate any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Party or such Borrower is a party or by which such Party or such Borrower or any of such Party's or such Borrower's property is bound; (iv) will not result in the creation or imposition of any Lien upon any of the property of such Party or such Borrower other than those in favor of the applicable Lender; and (v) do not require the consent or approval of any governmental body, agency, authority or any other Person except such consents as have been obtained, except, in the case of each of (ii), (iii), (iv) and (v), for any violation or conflict which would not reasonably be expected to have a Material Adverse Effect. 4 4.2 ENFORCEABLE OBLIGATIONS. This Agreement and the other Loan Documents to which such Party is a party have been duly and validly executed by such Party (or deemed executed in the case of a subsidiary Borrower) and constitute the legal, valid, and binding obligations of such Party or such Borrower, as the case may be, enforceable against such Person in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization or similar laws generally affecting the enforcement of the rights of creditors. 4 5. AFFIRMATIVE COVENANTS. During the term of this Agreement, unless the other Party (as Lender and on behalf of its subsidiaries which are Lenders) shall otherwise consent in writing and while any Loans remain outstanding to a Party or any of its subsidiaries as Borrower under this Agreement or any Loan Document: 5.1 CORPORATE EXISTENCE, ETC. Such Party shall (and shall cause each of its subsidiaries which is a Borrower to) maintain its corporate existence, and maintain its assets and properties in good repair and working order, unless, in each case, such failure would not reasonably be expected to have a Material Adverse Effect. 5.2 TAXES. Such Party will (and will cause each of its subsidiaries which is a Borrower to) pay all real and personal property taxes, assessments and charges as well as all franchise, income, unemployment, withholding, sales and other taxes assessed against it, or payable by it at such times and in such manner as to prevent any penalty from accruing or any Lien or charge from attaching to its property, and will furnish the other Party upon request, receipts, or other evidence that deposits or payments have been made, unless, in each case, such failure would not reasonably be expected to have a Material Adverse Effect. View More
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Representation and Warranty. Holdings and each Borrower hereby represents and warrants that (i) no Default or Event of Default exists under the Existing Second Lien Credit Agreement or under any other Loan Document as of the date hereof, (ii) all representations and warranties contained in the Amended Second Lien Credit Agreement and the other Loan Documents are true and correct in all material respects as of the date hereof, except to the extent that (A) such representations or warranties are qualified by a materiality sta...ndard (in which case such representations or warranties are true and correct in all respects), (B) such representations or warranties expressly relate to an earlier date (in which case such representations or warranties are true and correct in all material respects as of such earlier date) and (C) such representations or warranties relate to Section 5.01(f) of the Amended Second Lien Credit Agreement (in which case such representations or warranties are limited to clause (c) of the definition of "Material Adverse Effect" in the Amended Second Lien Credit Agreement) and (iii) this Amendment will not conflict with, constitute a default under or violate any of the terms, conditions or provisions of (i) the Indenture for the Existing Second Lien Notes, (ii) the Security Agreement, (iii) the Existing Intercreditor Agreement, (iv) the First Lien Credit Agreement, (v) the Letter of Credit Reimbursement Agreement, dated as of December 28, 2016, by and among Holdings, the Borrowers, certain financial institutions and Citibank, N.A. as administrative agent and issuing bank, as amended, modified, supplemented or restated and in effect from time to time, (vi) that certain Second Amended and Restated Loan Agreement, dated as of October 18, 2017, by and among Line of Credit Lender, JPP II, LLC, the Borrowers and the other borrower parties thereto, as amended, modified, supplemented or restated and in effect from time to time, (vii) that certain Amended and Restated Loan Agreement, dated as of May 22, 2017, by and among the Line of Credit Lender, JPP II, LLC, Cascade Investment, L.L.C., the Borrowers and other borrower parties thereto, as amended, modified, supplemented or restated and in effect from time to time and (viii) that certain Receivables and Participation Purchase Agreement, dated as of June 15, 2017, by and among Line of Credit Lender, JPP II, LLC, Holdings, Kmart Operations LLC and Sears Operations LLC, as amended, modified, supplemented or restated and in effect from time to time. View More
Representation and Warranty. Holdings and By execution of this Amendment, each Borrower hereby represents and warrants that (i) Loan Party certifies that: a. no Default or Event of Default exists has occurred and is continuing under the Existing Amended Second Lien Credit Agreement or under any other Loan Document as of the date hereof, (ii) Document; b. all representations and warranties contained in the Amended Second Lien Credit Agreement and the other Loan Documents are true and correct in all material respects as of th...e date hereof, except to the extent that (A) such representations or warranties are qualified by a materiality standard (in which case such representations or warranties are true and correct in all respects), (B) such representations or warranties expressly relate to an earlier date (in which case such representations or warranties are true and correct in all material respects as of such earlier date) and date); (C) such representations or warranties relate to Section 5.01(f) of the Amended Second Lien Credit Agreement (in which case such representations or warranties are limited to clause (c) of the definition of "Material Adverse Effect" in the Amended Second Lien Credit Agreement) Agreement); c. the execution, delivery and (iii) performance by each Loan Party party hereto and thereto of this Amendment and the other documents executed in connection herewith, and the consummation of the transactions contemplated hereby or thereby, are within such Loan Party's powers, have been duly authorized by all necessary organizational action, and do not contravene (A) the charter or by-laws or other organizational or governing documents of such Loan Party or (B) law or any contractual restriction binding on or affecting any Loan Party, except, for purposes of this clause (B), to the extent such contravention would not reasonably be expected to have a Material Adverse Effect; d. no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance of this Amendment and the other documents executed in connection herewith, in each case by any Loan Party party thereto, that has not already been obtained if the failure to obtain such authorization, approval or other action could reasonably be expected to result in a Material Adverse Effect; e. this Amendment has been duly executed and delivered by each Loan Party party hereto, constitutes the legal, valid and binding obligation of each Loan Party party hereto enforceable against such Loan Party in accordance with its terms subject to the effect of any applicable bankruptcy, insolvency, reorganization or moratorium or similar laws affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); and f. the execution, delivery and performance by each Loan Party of this Amendment and the other documents executed in connection herewith, and the consummation of the transactions contemplated hereby or thereby, will not conflict with, constitute a default under or violate any of the terms, conditions or provisions of (i) the Indenture for the Existing Second Lien Notes, (ii) the Security Agreement, (iii) the Existing Intercreditor Agreement, (iv) the First Lien Credit Agreement, (v) the Letter of Credit Reimbursement Agreement, dated as of December 28, 2016, by and among Holdings, the Borrowers, certain financial institutions and Citibank, N.A. as administrative agent and issuing bank, as amended, modified, supplemented or restated and in effect from time to time, (vi) that certain Second Amended and Restated Loan Agreement, dated as of October 18, 2017, by and -2- among Line of Credit Lender, JPP, LLC, JPP II, LLC, the Borrowers Sears, Roebuck and Co, Kmart Corporation and the other borrower parties thereto, as amended, modified, supplemented or restated and in effect from time to time, (vii) that certain Amended and Restated Loan Agreement, dated as of May 22, 2017, by and among the Line of Credit Lender, JPP, LLC, JPP II, LLC, Cascade Investment, L.L.C., Sears, Roebuck and Co, Kmart Corporation and the Borrowers and other borrower parties thereto, as amended, modified, supplemented or restated and in effect from time to time and time, (viii) that certain Receivables and Participation Purchase Agreement, dated as of June 15, 2017, by and among Line of Credit Lender, Kmart Operations LLC, Sears Operations LLC, Holdings, JPP, LLC and JPP II, LLC, Holdings, Kmart Operations LLC and Sears Operations LLC, as amended, modified, supplemented or restated and in effect from time to time and (ix) that certain Term Loan Credit Agreement, dated as of January 4, 2018, among Holdings, the Borrowers, the guarantors party thereto from time to time, the lenders party thereto from time to time and JPP, LLC, as administrative agent and collateral administrator, as amended, modified, supplemented or restated and in effect from time to time. 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Representation and Warranty. (a) As of the date hereof, each of the Parties hereby represents and warrants to the other Parties, severally and not jointly, as follows: i. Each such Party has all requisite organizational power and authority to execute and deliver this Agreement and to perform its obligations contemplated hereby. This Agreement has been validly executed and delivered by such Party and, assuming that this Agreement constitutes the legal, valid and binding obligation of the other Parties hereto, constitutes the... legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies). ii. The execution and delivery of this Agreement by such Party does not, and the performance of this Agreement by such Party will not, (i) conflict with or violate any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to such Party or by which it is bound or affected, (ii) (A) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, (B) give to any other person any rights of termination, amendment, acceleration or cancellation of, or (C) result in the creation of any pledge, claim, lien, charge, encumbrance or security interest of any kind or nature whatsoever upon any of the properties or assets of such Party under, any agreement, contract, indenture, note or instrument to which such Party is a party or by which it is bound or affected, except for such breaches, defaults or other occurrences that would not prevent or materially delay the performance by such Party of any of such Party's obligations under this Agreement, or (iii) require any filing by such Party with, or any permit, authorization, consent or approval of, any governmental or regulatory authority, except where the failure to make such filing or obtain such permit, authorization, consent or approval would not prevent or materially delay the performance by such Party of any of such Party's obligations under this Agreement. iii. As of the date hereof, no Party, nor any of its respective properties or assets is subject to any order, writ, judgment, injunction, decree, determination or award that would prevent or delay the consummation of the transactions contemplated hereby. iv. Each Party acknowledges and agrees that at the time of the execution of this Agreement, all interest and principal of the Company under the Promissory Note has been paid by the Company and the Company's obligations thereunder are satisfied in full. 2 (b) The Company represents and warrants to the other Parties that the Company has the requisite corporate power and authority to issue shares of its common stock, par value $.001 per share ("Common Stock"), as contemplated by this Agreement. Such shares of Common Stock, when issued in accordance with the terms of this Agreement, shall have been duly authorized and validly issued, and will be fully paid and non-assessable, free and clear of all liens and encumbrances. (c) ETI represents and warrants to the other Parties that it has the requisite corporate power and authority to enter into this Agreement as the authorized agent and representative of the Investors and to transfer shares of the Company's Common Stock as contemplated by this Agreement. Such shares of Common Stock, when transferred in accordance with the terms of this Agreement, shall free and clear of all liens and encumbrances and shall vest ownership of such shares in the name of the transferee. View More
Representation and Warranty. (a) The Company, Reddot, Megawell USA and Confection Ventures represent and warrant, severally but not jointly, that the statements set forth in the Preamble above are true and correct in all material respects. (b) The Company, Confection Ventures, Megawell USA and Reddot represent and warrant that they, severally but not jointly, have made reasonably commercial efforts to determine the signatory authorized to act on behalf of Megawell USA. (d) The Company represents and warrants that it has bee...n presented with sufficient documentation by Confections Ventures and Megawell USA to demonstrate that the Company received the advances from Confections Ventures of $939,500 in consideration of its entering into the Convertible Note Purchase Agreement (defined below) and issuing the Convertible Promissory Note (as defined below) to Confections Ventures. (e) Reddot represents and warrants that has been paid by the Company all funds due to it as of the date hereof by the Company. (f) As of the date hereof, each of the Parties hereby represents and warrants to the other Parties, severally and not jointly, as follows: i. Each such Party has all requisite organizational power and authority to execute and deliver this Agreement and to perform its obligations contemplated hereby. This Agreement has been validly executed and delivered by such Party and, assuming that this Agreement constitutes the legal, valid and binding obligation of the other Parties hereto, constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies). ii. The execution and delivery of this Agreement by such Party does not, and 2 the performance of this Agreement by such Party will not, (i) conflict with or violate any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to such Party or by which it is bound or affected, (ii) (A) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, (B) give to any other person any rights of termination, amendment, acceleration or cancellation of, or (C) result in the creation of any pledge, claim, lien, charge, encumbrance or security interest of any kind or nature whatsoever upon any of the properties or assets of such Party under, any agreement, contract, indenture, note or instrument to which such Party is a party or by which it is bound or affected, except for such breaches, defaults or other occurrences that would not prevent or materially delay the performance by such Party of any of such Party's obligations under this Agreement, or (iii) require any filing by such Party with, or any permit, authorization, consent or approval of, any governmental or regulatory authority, except where the failure to make such filing or obtain such permit, authorization, consent or approval would not prevent or materially delay the performance by such Party of any of such Party's obligations under this Agreement. iii. As of the date hereof, no neither such Party, nor any of its respective properties or assets is subject to any order, writ, judgment, injunction, decree, determination or award that would prevent or delay the consummation of the transactions contemplated hereby. iv. Each Party acknowledges and agrees that at the time of the execution of this Agreement, all interest and principal of the Company under the Promissory Note has been paid by the Company and the Company's obligations thereunder are satisfied in full. 2 (b) The Company represents and warrants to the other Parties that the Company has the requisite corporate power and authority to issue shares of its common stock, par value $.001 per share ("Common Stock"), as contemplated by this Agreement. Such shares of Common Stock, when issued in accordance with the terms of this Agreement, shall have been duly authorized and validly issued, and will be fully paid and non-assessable, free and clear of all liens and encumbrances. (c) ETI represents and warrants to the other Parties that it has the requisite corporate power and authority to enter into this Agreement as the authorized agent and representative of the Investors and to transfer shares of the Company's Common Stock as contemplated by this Agreement. Such shares of Common Stock, when transferred in accordance with the terms of this Agreement, shall free and clear of all liens and encumbrances and shall vest ownership of such shares in the name of the transferee. View More
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