Common use of Additional Representations, Warranties and Covenants Clause in Contracts

Additional Representations, Warranties and Covenants. With respect to each of its Accounts, Borrower represents, warrants and covenants unto Agent and Lenders that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents delivered to Agent with respect thereto; (C) the amounts thereof, which may be shown on any invoices and statements delivered to Agent with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments delivered to Borrower in the ordinary course of business; (E) there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the security interest and Liens of Agent and Lenders; (I) Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.

Additional Representations, Warranties and Covenants. With respect Seller (i) consents to each the placement of a legend on any certificate or other document evidencing the Shares substantially in the form set forth in Section 3.10; (ii) has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect his interests in connection with the transactions contemplated by this Agreement; (iii) has consulted, to the extent that he has deemed necessary, with his tax, legal, accounting and financial advisors concerning Seller’s acquisition of the Shares and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its Accountsentire investment in the Shares; (iv) has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding Buyer that Seller has requested and all such public information is sufficient for Seller to evaluate the risks of acquiring the Shares; (v) has been afforded the opportunity to ask questions of and receive answers concerning Buyer and the terms and conditions of the issuance of the Shares; (vi) is not relying on any representations and warranties concerning Buyer made by Buyer or any officer, Borrower representsemployee or agent of Buyer, warrants and covenants unto Agent and Lenders that: other than those contained in this Agreement; (vii) will not sell or otherwise transfer the Shares, unless either (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentthe transfer of the Shares is registered under the Securities Act; or (B) they represent undisputed, bona fide transactions completed in accordance with an exemption from registration of the terms and provisions contained in the invoices and other documents delivered to Agent with respect theretoShares is available; (Cviii) understands and acknowledges that Buyer is under no obligation to register the amounts thereof, which may be shown on any invoices and statements delivered to Agent with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent Shares for any reasonsale under the Securities Act; (Dix) no payments have been or shall be made thereon except payments delivered represents and warrants that the address furnished to Borrower in Buyer is the ordinary course principal residence of businessSeller; (Ex) there are no setoffsunderstands and acknowledges that the Shares have not been recommended by any federal or state securities commission or regulatory authority, counterclaims that the foregoing authorities have not confirmed the accuracy or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in determined the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the security interest and Liens of Agent and Lenders; (I) Borrower has no knowledge adequacy of any fact or circumstance which would impair information concerning Buyer that has been supplied to Seller and that any representation to the validity or collectibility thereofcontrary is a criminal offense; and (Jxi) Borrower has no knowledge acknowledges that the representations, warranties and agreements made by Seller herein shall survive the execution and delivery of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 this Agreement and the acquisition of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange CommissionShares.

Additional Representations, Warranties and Covenants. With respect The Member (i) consents to each the placement of a legend on any certificate or other document evidencing the Member’s ARMEAU Shares substantially in the form set forth in Section 3.8(a); (ii) has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect his interests in connection with the transactions contemplated by this Agreement; (iii) has consulted, to the extent that he has deemed necessary, with his tax, legal, accounting and financial advisors concerning the Member’s acquisition of the ARMEAU Shares and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its Accountsentire investment in the ARMEAU Shares; (iv) has had access to the SEC Reports; (vi) has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding ARMEAU that such the Member has requested and all such public information is sufficient for the Member to evaluate the risks of acquiring the ARMEAU Shares; (vii) has been afforded the opportunity to ask questions of and receive answers concerning ARMEAU and the terms and conditions of the issuance of the ARMEAU Shares; (viii) is not relying on any representations and warranties concerning ARMEAU made by ARMEAU or any officer, Borrower representsemployee or agent of ARMEAU, warrants and covenants unto Agent and Lenders that: other than those contained in this Agreement or the SEC Reports; (ix) will not sell or otherwise transfer the ARMEAU Shares, unless either (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentthe transfer of the ARMEAU Shares is registered under the Securities Act; or (B) they represent undisputed, bona fide transactions completed in accordance with an exemption from registration of the terms and provisions contained in the invoices and other documents delivered to Agent with respect theretoARMEAU Shares is available; (Cx) understands and acknowledges that ARMEAU is under no obligation to register the amounts thereof, which may be shown on any invoices and statements delivered to Agent with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent ARMEAU Shares for any reasonsale under the Securities Act; (Dxi) no payments have been or shall be made thereon except payments delivered represents and warrants that the address furnished to Borrower in ARMEAU is the ordinary course principal residence of businessthe Member; (Exii) there are no setoffsunderstands and acknowledges that the ARMEAU Shares have not been recommended by any federal or state securities commission or regulatory authority, counterclaims that the foregoing authorities have not confirmed the accuracy or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in determined the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the security interest and Liens of Agent and Lenders; (I) Borrower has no knowledge adequacy of any fact or circumstance which would impair information concerning ARMEAU that has been supplied to the validity or collectibility thereofMember and that any representation to the contrary is a criminal offense; and (Jxiii) Borrower has no knowledge acknowledges that the representations, warranties and agreements made by the Member herein shall survive the execution and delivery of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 this Agreement and the acquisition of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange CommissionARMEAU Shares.

Additional Representations, Warranties and Covenants. With respect to each of its the Eligible Accounts, each Borrower represents, warrants and covenants unto Agent and Lenders Lender that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents delivered to Agent Lender with respect thereto; (C) the amounts thereof, which may be shown on any Borrowing Base Certificate or invoices and statements delivered to Agent Lender with respect thereto, are and shall be actually and absolutely owing to Borrower Borrowers and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments immediately delivered to Borrower in Lender pursuant to this Loan Agreement and the ordinary course of businessOther Agreements; (E) there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has Borrowers have not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower Borrowers in the ordinary course of its their respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lienlien, claim, encumbrance or security interest, except the first position priority security interest and Liens lien of Agent and LendersLender; (I) Borrower has Borrowers have no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has there are no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.

Additional Representations, Warranties and Covenants. With respect to each The Company and FGX Holdings represent and warrant that (a) this Agreement has been duly authorized, executed and delivered by the Company and FGX Holdings and constitutes a valid and binding obligation of its Accountsthe Company and FGX Holdings, Borrower represents, warrants and covenants unto Agent (b) the Options have been lawfully granted and Lenders that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed entitle the Executive upon exercise thereof in accordance with their terms to purchase Ordinary Shares representing as of the date hereof five percent (5%) of the issued and outstanding Ordinary Shares on a fully diluted basis (which for purposes of this representation includes (i) all issued and outstanding Ordinary Shares, (ii) all Ordinary Shares issuable upon exercise of all outstanding options to purchase Ordinary Shares, and (iii) all options authorized for issuance under the Stock Option Plan which have not yet been issued (which together with the outstanding options referenced in clause (ii) of this sentence represent as of the date hereof ten percent (10%) of the issued and outstanding Ordinary Shares on a fully diluted basis). In the event that at any time during the Employment Period which precedes the consummation of an IPO FGX Holdings shall propose to issue any Ordinary Shares to Berggruen Holdings and/or one or more affiliates of Berggruen Holdings in return for an additional cash investment in FGX Holdings, FGX Holdings shall provide Executive with ten days prior written notice of such proposed issuance (which notice shall set forth the number of Ordinary Shares proposed to be issued and the cash consideration proposed to be paid therefore) and the Executive shall have the right by delivery of written notice to FGX Holdings and Berggruen Holdings during such ten day period to purchase up to five percent (5%) of the number of Ordinary Shares proposed to be issued thereby at the same purchase price as is proposed to be paid by Berggruen Holdings; provided, however, that the Executive shall as a condition to the issuance of such Ordinary Shares enter into the Shareholders Agreement required to be entered into by him as a condition to the exercise of any Options under the terms of the Stock Option Plan and the Stock Option Agreements and all Ordinary Shares shall be subject to all of the terms and provisions contained conditions set forth in such Shareholders Agreement. The parties agree that the invoices Options granted to Executive and other documents delivered the anti-dilution provision hereof are a material inducement to Agent Executive’s acceptance of employment with the Company. Any breach by the Company or FGX Holdings of any of its covenants with respect thereto; (C) to the amounts thereof, which may be shown on any invoices and statements delivered to Agent Options or with respect thereto, are and to the anti-dilution provisions hereof shall be actually and absolutely owing to Borrower and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments delivered to Borrower in the ordinary course of business; (E) there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the security interest and Liens of Agent and Lenders; (I) Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to deemed a request for confidential treatment under Rule 24b-2 breach of the Securities Exchange Act representation and warranties of 1934, the Company hereunder entitling Executive to terminate this Agreement for Good Reason and entitling Executive to the payments on termination as amendedcontemplated by Section 7 hereof. A complete copy of this document has been filed separately with the Securities and Exchange Commission.[signatures appear on following page]

Additional Representations, Warranties and Covenants. With respect to each of its the Accounts, each Borrower represents, warrants and covenants unto Agent and Lenders the Bank that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents delivered to Agent the Bank with respect thereto; (C) the amounts thereof, which may be shown on any Schedule of Accounts or invoices and statements delivered to Agent the Bank with respect thereto, are and shall be actually and absolutely owing to Borrower Borrowers and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments immediately delivered to Borrower in the ordinary course of businessBank pursuant to this Loan Agreement and the Other Agreements; (E) except as disclosed to the Bank in writing, there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has Borrowers have not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower Borrowers in the ordinary course of its their respective businesses for prompt payment; (F) except as disclosed to the Bank, there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s 's knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lienlien, claim, encumbrance or security interest, except the first position priority security interest and Liens lien of Agent and Lendersthe Bank; (I) Borrower has except as disclosed to the Bank, Borrowers have no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has to Borrower's knowledge, except as disclosed to the Bank, there are no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.

Additional Representations, Warranties and Covenants. With respect to each of its the Eligible Accounts, Borrower represents, warrants and covenants unto Agent and Lenders Lender that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents delivered to Agent Lender with respect thereto; (C) the amounts thereof, which may be shown on any Borrowing Base Certificate or invoices and statements delivered to Agent Lender with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments immediately delivered to Borrower in Lender pursuant to this Loan Agreement and the ordinary course of businessOther Agreements; (E) there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in the ordinary course of its respective businesses business for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lienlien, claim, encumbrance or security interest, except the first position priority security interest and Liens lien of Agent and LendersLender; (I) Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has there are no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.

Additional Representations, Warranties and Covenants. With respect Borrowers represent and warrant to each of its Accounts, Borrower represents, warrants and covenants unto Agent and Lenders covenant with Lender that: (A) they are and the Inventory shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentkept only at the locations specified on Schedule 4.4; (B) they represent undisputedBorrowers now keep and hereafter at all times shall keep correct and accurate records itemizing and describing the age, bona fide transactions completed in accordance kind, type and quantity of Inventory and Borrowers' stated actual cost therefor, together with the terms withdrawals therefrom and provisions contained in the invoices additions thereto for each month, all of which records shall be available, upon demand, to any of Lender' s officers, employees or agents for inspection and other documents delivered to Agent with respect theretocopying thereof; (C) the amounts thereof, which may be shown on any invoices all Inventory is now and statements delivered to Agent with respect thereto, are and hereafter at all times shall be actually of good and absolutely owing to Borrower and are not contingent for any reasonmerchantable quality, free from defects; (D) no payments any of Lender's officers, employees or agents shall, now and at any time or times hereafter, have been or shall be made thereon except payments delivered the right, upon demand, to Borrower in inspect and examine the ordinary course of businessInventory and to check and test the same as to quality, quantity, value and condition; and (E) all Eligible Inventory set forth on the Borrowing Base Certificate (1) consists of (i) raw materials, (ii) work-in-process, (iii) finished goods, or (iv) packaging materials; (2) is not more than three hundred sixty-five (365) days old; (3) is not consigned to any Person; (4) does not violate the negative covenants and similar provisions of this Section 6 and does satisfy the positive covenants, and similar provisions of this Section 6; (5) is subject to Lender's first position priority preferred security interest and lien; and (7) is located at one of the locations specified on Schedule 4.4, and, if located at a warehouse, other storage facility or leased facility, Lender has (i) received an original executed Warehouse Agreement or Landlord Agreement in form and substance acceptable to Lender, (ii) filed its Uniform Commercial Code financing statements in accordance with applicable law with regard to the respective location of each such warehouse, other storage facility or leased facility, and (iii) as evidenced by then currently dated Uniform Commercial Code judgment and lien searches satisfactory to Lender, there are no setoffssecurity interests or liens in and to the Collateral located at such warehouse, counterclaims other storage facility or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefromleased facility, except regular discounts allowed by Borrower in the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the other than Lender's first position priority security interest and Liens of Agent lien. All costs, fees and Lenders; (I) Borrower has no knowledge of any fact expenses incurred by Lender in connection with this Section 6, or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant Lender becomes obligated to a request for confidential treatment under Rule 24b-2 pay, shall be part of the Securities Exchange Act of 1934Liabilities, as amended. A complete copy of this document has been filed separately with secured by the Securities Collateral and Exchange Commissionpayable by Borrowers to Lender on demand.

Additional Representations, Warranties and Covenants. With respect The Member (i) consents to each the placement of a legend on any certificate or other document evidencing the SBES Shares substantially in the form set forth in SECTION 3.8(A); (ii) has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect his interests in connection with the transactions contemplated by this Agreement; (iii) has consulted, to the extent that he has deemed necessary, with his tax, legal, accounting and financial advisors concerning its Accountsacquisition of the SBES Shares and can afford to bear such risks for an indefinite period of time, Borrower representsincluding, warrants without limitation, the risk of losing its entire investment in the SBES Shares; (iv) has had access to the SEC Reports; (vi) has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding SBES that such the Member has requested and covenants unto Agent all such public information is sufficient for the Member to evaluate the risks of acquiring the SBES Shares; (vii) has been afforded the opportunity to ask questions of and Lenders that: receive answers concerning SBES and the terms and conditions of the issuance of the SBES Shares; (viii) is not relying on any representations and warranties concerning SBES made by SBES or any officer, employee or agent of SBES, other than those contained in this Agreement or the SEC Reports; (ix) will not sell or otherwise transfer the SBES Shares, unless either (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentthe transfer of the SBES Shares is registered under the Securities Act; or (B) they represent undisputed, bona fide transactions completed in accordance with an exemption from registration of the terms and provisions contained in the invoices and other documents delivered to Agent with respect theretoSBES Shares is available; (Cx) understands and acknowledges that SBES is under no obligation to register the amounts thereof, which may be shown on any invoices and statements delivered to Agent with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent SBES Shares for any reasonsale under the Securities Act; (Dxi) no payments have been or shall be made thereon except payments delivered represents and warrants that the address furnished to Borrower in SBES is the ordinary course principal residence of businessthe Member; (Exii) there are no setoffsunderstands and acknowledges that the SBES Shares have not been recommended by any federal or state securities commission or regulatory authority, counterclaims that the foregoing authorities have not confirmed the accuracy or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular discounts allowed by Borrower in determined the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the security interest and Liens of Agent and Lenders; (I) Borrower has no knowledge adequacy of any fact or circumstance which would impair information concerning SBES that has been supplied to the validity or collectibility thereofMember and that any representation to the contrary is a criminal offense; and (Jxiii) Borrower has no knowledge acknowledges that the representations, warranties and agreements made by the Member herein shall survive the execution and delivery of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 this Agreement and the acquisition of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange CommissionSBES Shares.

Additional Representations, Warranties and Covenants. With respect to each of its the Eligible Accounts, Borrower represents, warrants and covenants unto Agent and Lenders Lender that: (A) they are and shall be genuine, in all respects what they purport to be and are not evidenced by a judgment; (B) they represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents delivered to Agent Lender with respect thereto; (C) the amounts thereof, which may be shown on any Borrowing Base Certificate or invoices and statements delivered to Agent Lender with respect thereto, are and shall be actually and absolutely owing to Borrower and are not contingent for any reason; (D) no payments have been or shall be made thereon except payments immediately delivered to Borrower in Lender pursuant to this Loan Agreement and the ordinary course of businessOther Agreements; (E) there are no setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefrom, except regular rebates and discounts for prompt payment allowed by Borrower in the ordinary course of its respective businesses for prompt paymentbusiness; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrower’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any LienLien or claim, except the first position priority security interest and Liens Lien of Agent and LendersLender; (I) Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has there are no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.

Additional Representations, Warranties and Covenants. With respect Borrowers represent and warrant to each of its Accounts, Borrower represents, warrants and covenants unto Agent and Lenders covenant with Lender that: (A) they are and the Inventory shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentkept only at the locations specified on Schedule 4.4; (B) they represent undisputedBorrowers now keep and hereafter at all times shall keep correct and accurate records itemizing and describing the age, bona fide transactions completed in accordance kind, type and quantity of Inventory and Borrowers’ stated actual cost therefor, together with the terms withdrawals therefrom and provisions contained in the invoices additions thereto for each month, all of which records shall be available, upon demand, to any of Lender’s officers, employees or agents for inspection and other documents delivered to Agent with respect theretocopying thereof; (C) the amounts thereof, which may be shown on any invoices all Inventory is now and statements delivered to Agent with respect thereto, are and hereafter at all times shall be actually of good and absolutely owing to Borrower and are not contingent for any reasonmerchantable quality, free from defects; (D) no payments any of Lender’s officers, employees or agents shall, now and at any time or times hereafter, have been or shall be made thereon except payments delivered the right, upon demand, to Borrower in inspect and examine the ordinary course of businessInventory and to check and test the same as to quality, quantity, value and condition; and (E) all Eligible Inventory set forth on the Borrowing Base Certificate (1) consists of (i) raw materials, (ii) work-in-process, (iii) finished goods, or (iv) packaging materials; (2) is not more than three hundred sixty-five (365) days old; (3) is not consigned to any Person; (4) does not violate the negative covenants and similar provisions of this Section 6 and does satisfy the positive covenants, and similar provisions of this Section 6; (5) is subject to Lender’s first position priority preferred security interest and lien; and (7) except as otherwise permitted in Section 6.1 above, is located at one of the locations specified on Schedule 4.4, and, if located at a warehouse, other storage facility or leased facility, Lender has (i) received an original executed Warehouse Agreement or Landlord Agreement in form and substance acceptable to Lender, (ii) filed its Uniform Commercial Code financing statements in accordance with applicable law with regard to the respective location of each such warehouse, other storage facility or leased facility, and (iii) as evidenced by then currently dated Uniform Commercial Code judgment and lien searches satisfactory to Lender, there are no setoffssecurity interests or liens in and to the Collateral located at such warehouse, counterclaims other storage facility or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefromleased facility, except regular discounts allowed by Borrower in the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrowerother than Lender’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the first position priority security interest and Liens of Agent lien. All costs, fees and Lenders; (I) Borrower has no knowledge of any fact expenses incurred by Lender in connection with this Section 6, or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant Lender becomes obligated to a request for confidential treatment under Rule 24b-2 pay, shall be part of the Securities Exchange Act of 1934Liabilities, as amended. A complete copy of this document has been filed separately with secured by the Securities Collateral and Exchange Commissionpayable by Borrowers to Lender on demand.”

Additional Representations, Warranties and Covenants. With respect Borrowers represent and warrant to each of its Accounts, Borrower represents, warrants and covenants unto Agent and Lenders covenant with Lender that: (A) they are and the Inventory shall be genuine, in all respects what they purport to be and are not evidenced by a judgmentkept only at the locations specified on Schedule 4.4; (B) they represent undisputedBorrowers now keep and hereafter at all times shall keep correct and accurate records itemizing and describing the age, bona fide transactions completed in accordance kind, type and quantity of Inventory and Borrowers’ stated actual cost therefor, together with the terms withdrawals therefrom and provisions contained in the invoices additions thereto for each month, all of which records shall be available, upon demand, to any of Lender’ s officers, employees or agents for inspection and other documents delivered to Agent with respect theretocopying thereof; (C) the amounts thereof, which may be shown on any invoices all Inventory is now and statements delivered to Agent with respect thereto, are and hereafter at all times shall be actually of good and absolutely owing to Borrower and are not contingent for any reasonmerchantable quality, free from defects; (D) no payments any of Lender’s officers, employees or agents shall, now and at any time or times hereafter, have been or shall be made thereon except payments delivered the right, upon demand, to Borrower in inspect and examine the ordinary course of businessInventory and to check and test the same as to quality, quantity, value and condition; and (E) all Eligible Inventory set forth on the Borrowing Base Certificate (1) consists of (i) raw materials, (ii) work-in-process, (iii) finished goods, or (iv) packaging materials; (2) is not more than three hundred sixty-five (365) days old; (3) is not consigned to any Person; (4) does not violate the negative covenants and similar provisions of this Section 6 and does satisfy the positive covenants, and similar provisions of this Section 6; (5) is subject to Lender’s first position priority preferred security interest and lien; and (7) is located at one of the locations specified on Schedule 4.4, and, if located at a warehouse, other storage facility or leased facility, Lender has (i) received an original executed Warehouse Agreement or Landlord Agreement in form and substance acceptable to Lender, (ii) filed its Uniform Commercial Code financing statements in accordance with applicable law with regard to the respective location of each such warehouse, other storage facility or leased facility, and (iii) as evidenced by then currently dated Uniform Commercial Code judgment and lien searches satisfactory to Lender, there are no setoffssecurity interests or liens in and to the Collateral located at such warehouse, counterclaims other storage facility or disputes existing or asserted with respect thereto and Borrower has not made and will not make any agreement with any Account Debtor for any deduction therefromleased facility, except regular discounts allowed by Borrower in the ordinary course of its respective businesses for prompt payment; (F) there are no facts, events or occurrences known to Borrower which in any way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder; (G) to Borrowerother than Lender’s knowledge, all Account Debtors have the capacity to contract and are solvent; (H) the services furnished or Goods sold giving rise thereto are not subject to any Lien, except the first position priority security interest and Liens of Agent lien. All costs, fees and Lenders; (I) Borrower has no knowledge of any fact expenses incurred by Lender in connection with this Section 6, or circumstance which would impair the validity or collectibility thereof; and (J) Borrower has no knowledge of any proceedings or actions which are threatened or pending against any Account Debtor which might result in any material adverse change in its financial condition. Portions herein identified by [*****] have been omitted pursuant Lender becomes obligated to a request for confidential treatment under Rule 24b-2 pay, shall be part of the Securities Exchange Act of 1934Liabilities, as amended. A complete copy of this document has been filed separately with secured by the Securities Collateral and Exchange Commissionpayable by Borrowers to Lender on demand.”