any obligation accruing prior to such expiration
or termination, including, but not limited to, obligations to pay royalties
and/or milestones under Article 3, Sections 3.6 through 3.9, 4.1, and Articles
5, 6, 7, 8, 9, 10, 11, 12.
(b)
The rights of any sublicensee under any
permitted sublicense granted pursuant to Section 2.3 or 2.4 will survive the
termination of this Agreement to the extent provided in the sublicense, and the
licensor therein agrees to assign all such sublicenses to the other Party
hereto.
All payments then or thereafter due to such licensor from each
surviving sublicense shall become owed directly to the other Party hereto;
provided that such Party shall remit to the other Party the amount by which any
such payments exceed the corresponding amount that would have been payable
hereunder.
ARTICLE 9.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1
REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
Each Party represents and warrants to the other Party that, as of the Effective
Date:
(A)
SUCH PARTY IS DULY ORGANIZED AND VALIDLY
EXISTING UNDER THE LAWS OF THE STATE OF ITS INCORPORATION AND HAS FULL CORPORATE
POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CARRY OUT THE PROVISIONS
HEREOF;
(B)
SUCH PARTY HAS TAKEN ALL CORPORATE ACTION
NECESSARY TO AUTHORIZE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(C)
THIS AGREEMENT IS A LEGAL AND VALID
OBLIGATION OF SUCH PARTY, BINDING UPON SUCH PARTY AND ENFORCEABLE AGAINST SUCH
PARTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY SUCH PARTY DOES NOT CONFLICT WITH ANY
AGREEMENT, INSTRUMENT OR UNDERSTANDING, ORAL OR WRITTEN, TO WHICH SUCH PARTY IS
A PARTY OR BY WHICH SUCH PARTY MAY BE BOUND, AND DOES NOT VIOLATE ANY LAW OR
REGULATION OF ANY COURT, GOVERNMENTAL BODY OR ADMINISTRATIVE OR OTHER AGENCY
HAVING AUTHORITY OVER SUCH PARTY. ALL CONSENTS, APPROVALS AND AUTHORIZATIONS
FROM ALL GOVERNMENTAL AUTHORITIES OR OTHER THIRD PARTIES REQUIRED TO BE OBTAINED
BY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT HAVE BEEN OBTAINED;
(D)
SUCH PARTY HAS THE FULL AND EXCLUSIVE RIGHT,
POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT, TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT (INCLUDING THE RESEARCH PLAN) AND TO GRANT THE LICENSES
GRANTED HEREUNDER;
(E)
AVI EXPRESSLY ACKNOWLEDGES THE LIMITATIONS
AND RESTRICTIONS THAT APPLY TO SUBLICENSEES UNDER THE UNC LICENSE AND ISIS CLA
AND WARRANTS THAT IT WILL ADHERE TO SUCH LIMITATIONS AND RESTRICTIONS.
Ercole represents and warrants that, as of the date of this Agreement:
(A)
OTHER THAN THE ISIS CLA AND THAT UNC
LICENSE, THERE ARE NO AGREEMENTS BETWEEN ERCOLE AND ANY THIRD PARTIES WHICH
WOULD PRECLUDE OR OTHERWISE LIMIT ITS ABILITY TO CONDUCT ITS TASKS AND
OBLIGATIONS UNDER THE RESEARCH PLAN OR OTHERWISE FULFIL ITS OBLIGATIONS UNDER
THIS AGREEMENT;
(B)
THE ISIS CLA AND THE UNC LICENSE ARE IN FULL
FORCE AND EFFECT, AND THE COPIES ATTACHED HERETO ARE ACCURATE AND COMPLETE.
ERCOLE SHALL NOT AMEND THESE AGREEMENTS IN A WAY THAT