Common use of Updates to Schedules Clause in Contracts

Updates to Schedules. From and after the date of this Agreement until the earlier to occur of the Closing and the date on which this Agreement is terminated in accordance with its terms, the Company or the Seller, as applicable, shall disclose to the Buyer in writing (in the form of updates to the applicable Schedules delivered on the date hereof (each such update, a “Disclosure Supplement”)) any information, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement shall be deemed to amend and/or supplement the Schedules delivered on the date hereof for any purpose hereunder (including for purposes of determining whether the conditions set forth in Section 6.1 have been satisfied and/or for purposes of Article VII), nor shall the information contained in or the delivery of any Disclosure Supplement affect any of the Buyer’s rights or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereof.

Updates to Schedules. From During the Pre-Closing Period, the Company and each Seller (solely with respect to itself) shall promptly deliver to the Buyer supplemental information concerning events or circumstances occurring subsequent to the date hereof which would render any representation, warranty or statement of the Company or such Seller, as applicable, in this Agreement or any Schedule incomplete or inaccurate in any material respect at any time after the date of this Agreement until the earlier to occur of the Closing and the date on which this Agreement is terminated in accordance with its terms, the Company or the Seller, as applicable, shall disclose to the Buyer in writing (in the form of updates to the applicable Schedules delivered on the date hereof (each such update, a “Disclosure Supplement”)) any information, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the BuyerClosing. No such supplemental information contained in any Disclosure Supplement shall be deemed to amend and/or supplement avoid or cure any misrepresentation or breach of warranty or constitute an amendment of any representation, warranty or statement in this Agreement or the Schedules delivered Schedules. Notwithstanding the foregoing, if (a) such supplemental information relates to an event or circumstance hereafter arising (without breach of Section 5.2 (Conduct of Business) or Section 5.3 (Exclusivity)), (b) such supplemental information is accompanied by a written statement from the Securityholder Representative, on behalf of the Securityholders, informing the Buyer of the Securityholder Representative’s belief that the Buyer is entitled to terminate this Agreement in accordance with the provisions of Section 8.1(b) (Termination) as a result of such supplemental information (which statement shall be binding on the date hereof Sellers) and (c) the Buyer would, in fact, have the right to terminate this Agreement pursuant to Section 8.1(b) (Termination) as a result of the information so disclosed and it does not exercise such right prior to the Closing, then such supplemental information shall constitute an amendment of the representation, warranty or statement to which it relates for any purpose hereunder (including for purposes of determining whether the conditions set forth in Section 6.1 have been satisfied and/or for purposes of Article VII), nor VII (Survival; Indemnification) of this Agreement such that the Buyer shall not be entitled to indemnification under Article VII of this ActiveUS 136966801v.1 Agreement with respect to such matter to the extent of the information contained in or so disclosed; provided, further, that if such supplemental information is provided to the delivery of any Disclosure Supplement affect any of Buyer less than two (2) full business days prior to the Buyer’s rights or remedies under ARTICLE VII hereofscheduled Closing Date, which rights and remedies then the Closing Date shall be determined on deferred by two (2) business days to provide the basis of the Schedules delivered on the date hereofBuyer with sufficient time to evaluate such information.

Updates to Schedules. From and after Except in the date case of this Agreement until the earlier to occur those schedules disclosing information solely as of the Closing and KCA Acquisition Effective Time as expressly provided herein, should any of the date information or disclosures provided on which this Agreement is terminated any of the Schedules attached hereto become outdated or incorrect in accordance with its termsany material respect, the Company or Borrower shall provide the Seller, as applicable, shall disclose to the Buyer Administrative Agent in writing (in the form of with such revisions or updates to the applicable Schedules delivered on the date hereof (each such updateSchedule as may be necessary or appropriate to update or correct same; provided, a “Disclosure Supplement”)) any informationhowever, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement that no Schedule shall be deemed to amend and/or supplement the Schedules delivered on the date hereof for any purpose hereunder (including for purposes of determining whether the conditions set forth in Section 6.1 have been satisfied and/or for purposes of Article VII)amended, modified or superseded by any such correction or update, nor shall any breach of warranty or representation resulting from the information contained inaccuracy or incompleteness of any such Schedule be deemed to have been cured thereby, unless and until the Required Banks, in their sole and absolute discretion, shall have accepted in writing such revisions or updates to such Schedule. Notwithstanding the forgoing, the Borrower shall update Schedule 5.1.3 [Subsidiaries] only (1) on a quarterly basis with the delivery of the Borrower's Compliance Certificate, and (2) at the time that the Borrower delivers an Acquisition Compliance Certificate in connection with each Permitted Acquisition, which Acquisition Compliance Certificate shall disclose the Borrower's Subsidiaries after giving effect to such Permitted Acquisition, except that it shall not be required to disclose any Disclosure Supplement affect any newly formed entities which have do not conduct business, have no assets (except for minimum capital required under the laws of the Buyer’s rights applicable jurisdiction of organization) and will not be acquiring assets or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on stock in the basis of the Schedules delivered on the date hereofPermitted Acquisition.

Updates to Schedules. From and the date hereof through the Closing, the Seller shall give notice to Purchaser of the occurrence, or failure to occur, after the date hereof of this Agreement until the earlier to occur of the Closing and the date on any event which this Agreement is terminated in accordance with its terms, the Company occurrence or the Seller, as applicable, shall disclose to the Buyer in writing (in the form of updates to the applicable Schedules delivered on the date hereof (each such update, a “Disclosure Supplement”)) any information, event, matter, action failure has caused or omission hereafter arising or discovered which (i) if existing or known on the date of this Agreement, would be required likely to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of cause any representation or warranty contained in ARTICLE II this Agreement or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement Schedule hereto to be untrue or inaccurate in any material respect. In such event, unless such event would not reasonably be likely to cause the condition set forth in Section 5.3(g) not to be met or otherwise have a Material Adverse Effect (whether considered individually or in the aggregate with the events described in other written notices previously received by Purchaser), such written notice (i) shall be deemed to amend and/or supplement have amended the Schedules delivered on applicable Schedule and to have qualified the date hereof representations and warranties contained in Article II for any purpose hereunder (including for the purposes of determining whether the conditions set forth condition specified in Section 6.1 5.3(a) has been satisfied, but (ii) shall not be deemed to have been satisfied and/or amended any Schedule or modified any representation or warranty for purposes of Article VIIdetermining the Purchaser's right to indemnification with respect thereto under Section 6.1(a)(ii). Notwithstanding the forgoing, nor Seller shall not be permitted to update Schedule 4.20 without the information contained in or prior consent of Purchaser, which consent shall not be unreasonably withheld. In addition, from the delivery date hereof through the Closing, the Seller shall give notice to Purchaser of any Disclosure Supplement affect any failure of the Buyer’s rights Seller, or remedies of its representatives, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under ARTICLE VII hereof, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereofthis Agreement or any Schedule hereto in any material respect.

Updates to Schedules. From and time to time after the date of this Agreement until the earlier to occur of hereof but in any event not later than the Closing and the date on which this Agreement is terminated in accordance with its termsDate, the Company or Parties shall have the Seller, as applicable, shall disclose right to supplement the Buyer in writing (in the form of updates to the applicable Schedules delivered on hereunder, and deliver the same to Buyer, with respect to any matter arising between the date hereof (each such updateand the Closing Date which, a “Disclosure Supplement”)) any information, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on occurring at the date of this Agreement, would be have been required to be disclosed pursuant set forth or described in the Schedules (an “Update”); provided that such Update relates to a matter arising consistent with the covenants of the Company Parties hereunder. Any Update provided shall have only the effect of modifying the representations, warranties and disclosures of such party made as of the Closing Date and, for the avoidance of doubt, no Update will correct any representation, warranty or disclosure made as of the date of this Agreement. To the extent any Update involves facts that are materially adverse to any Company Party (an “Adverse Update”), Buyer shall have the right to terminate this Agreement to the extent set forth in order to make Section 10.1(d). To the Company’s extent any Update (whether or the Seller’s representations and warranties contained herein true and not misleading, or (iian Adverse Update) causes or constitutes a breach of any such representation or warranty contained the condition precedent set forth in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by Section 8.1 not to be satisfied as the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent same relates to the time truth and correctness of the Disclosure Supplement in question is delivered representations, warranties and disclosures made as of the Closing Date but Buyer otherwise elects to consummate the Buyer. No information contained in any Disclosure Supplement transactions contemplated hereby, each Update shall be deemed to modify and amend and/or supplement the Schedules delivered representations, warranties and disclosures of such party made as of the Closing Date and Buyer shall be deemed to have waived any breach otherwise occurring on account of the failure of any representations, warranties and disclosures of such party made as of the date hereof for that is modified by any purpose hereunder (including for purposes of determining whether the conditions set forth in Section 6.1 have been satisfied and/or for purposes of Article VII), nor shall the information contained in or the delivery of any Disclosure Supplement affect any Update to continue to be true and correct as of the Buyer’s rights Closing Date; provided that, for the avoidance of doubt, no Update shall have the effect of correcting any representation, warranty or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on disclosure that was untrue or incorrect at the basis of the Schedules delivered on the date hereoftime originally given or made.

Updates to Schedules. From (a) The Company shall have the right to supplement the Schedules to this Agreement prior to the Closing to reflect any and all events, circumstances or changes that arise or become known to the Company after the date of this Agreement until the earlier to occur of the Closing and the date on which this Agreement is terminated in accordance with its terms, the Company or the Seller, as applicable, shall disclose by delivery to the Buyer in writing of one or more supplements (in the form of updates to the applicable Schedules delivered on the date hereof (each such updateeach, a “Disclosure Supplement”). (b) Unless the existence of any informationmatter set forth in a Disclosure Supplement (a “New Matter”) would have a Company Material Adverse Effect, eventthe applicable Schedule(s) shall be deemed amended and supplemented by all information set forth in such Disclosure Supplement, mattereach of the representations and warranties made in this Agreement shall be deemed qualified by the Disclosure Supplements, action or omission hereafter arising or discovered which and no Buyer Indemnified Party shall make any claim in respect of the information disclosed in the Disclosure Supplements. (c) If the existence of any New Matter would have a Company Material Adverse Effect, the Buyer shall have the right under Section 8.1(b) either to (i) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to terminate this Agreement in order by written notice to make the Company’s or Company within five (5) business days after receipt of the Seller’s representations and warranties contained herein true and not misleadingDisclosure Supplement that includes the New Matter, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE IIIto consummate the transactions contemplated by this Agreement. If the Buyer elects to consummate the transactions contemplated by this Agreement, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement applicable Schedule(s) shall be deemed to amend and/or supplement the Schedules delivered on the date hereof for any purpose hereunder (including for purposes of determining whether the conditions amended and supplemented by all information set forth in Section 6.1 have been satisfied and/or for purposes such Disclosure Supplement, each of Article VII)the representations and warranties made in this Agreement shall be deemed qualified by the Disclosure Supplements, nor and no Buyer Indemnified Party shall make any claim in respect of the information contained disclosed in or the delivery of any Disclosure Supplement affect any of the Buyer’s rights or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereofSupplements.

Updates to Schedules. From and after (a) The Company shall have the date of right to supplement the Schedules to this Agreement until the earlier to occur of the Closing and the date on which this Agreement is terminated in accordance with its terms, the Company or the Seller, as applicable, shall disclose to the Buyer in writing (in the form of updates to the applicable Schedules delivered on the date hereof (each such updatesupplement, a “Disclosure Supplement”)) prior to the Closing to disclose any information, event, matter, action or omission hereafter arising which has arisen or discovered occurred subsequent to the time of signing of this Agreement which (i) if existing or known this Agreement were signed on the date of this AgreementClosing Date, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE IIIArticle II, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained . (b) To the extent that the existence of any matter set forth in any Disclosure Supplement shall be deemed to amend and/or supplement which was not disclosed at the Schedules delivered on time of the date hereof for any purpose hereunder signing of this Agreement (including for purposes of determining whether each, a “New Matter”) would cause the conditions set forth condition specified in Section 6.1 6.1(a) to not be satisfied as of Closing, the Buyer shall have been satisfied and/or for purposes the right (i) to terminate this Agreement by written notice to the Company within five (5) business days after receipt of Article VII)any Disclosure Supplement which includes such New Matter, nor shall but prior to the information contained in Closing Date, or (ii) to consummate the transactions contemplated by this Agreement. To the extent that the Buyer elects to consummate the transactions contemplated by this Agreement, the delivery of any Disclosure Supplement by the Company shall not affect any of the Buyer’s rights or remedies under ARTICLE Article VII hereof; provided, that to the extent that the Buyer consummates the transactions contemplated by this Agreement, with respect to any New Matter which rights and remedies arises or results from the announcement or pendency of the transactions contemplated by this Agreement or is attributable to the fact that the Buyer or any of its Affiliates are the prospective owners of the Company (a “Market Reaction New Matter”), all relevant Schedules to this Agreement shall be determined on the basis deemed amended and supplemented as of the Schedules Closing Date by the information set forth in each Disclosure Supplement which relates to a Market Reaction New Matter, and each of the representations and warranties of the Company made in this Agreement and the certificate delivered on under Section 6.1(c) hereof shall be deemed qualified by all such information as of the date hereofClosing Date.

Updates to Schedules. From (i) Target shall have the right to supplement the Disclosure Schedule to this Agreement prior to the Closing to reflect any and all events, circumstances or changes that arise or become known to Target after the date of this Agreement until the earlier to occur of the Closing and the date on which this Agreement is terminated in accordance with its terms, the Company or the Seller, as applicable, shall disclose by delivery to the Buyer in writing of one or more supplements (in the form of updates to the applicable Schedules delivered on the date hereof (each such updateeach, a “Disclosure Supplement”). (ii) Unless the existence of any informationmatter set forth in a Disclosure Supplement (a “New Matter”) would have a Material Adverse Effect, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on the date applicable Disclosure Schedule shall be deemed amended and supplemented by all information set forth in such Disclosure Supplement and each of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained made in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement this Agreement shall be deemed to amend and/or supplement qualified by the Schedules delivered on the date hereof for any purpose hereunder (including Disclosure Supplement, solely for purposes of determining whether the conditions condition to Buyer’s obligation to close in §6(a)(iii) has been satisfied. No Disclosure Supplement shall affect the rights to indemnification of Buyer, Transitory Subsidiary and Surviving Corporation under §8(b)(1) in respect of the applicable representations and warranties in §3 as if repeated at and as of the Closing Date without regard to the Disclosure Supplement. (iii) If the existence of any New Matter would have a Material Adverse Effect, the Buyer shall have the right to either (i) terminate this Agreement by written notice to Target within five business days after receipt of the Disclosure Supplement that includes the New Matter, or (ii) consummate the transactions contemplated by this Agreement. If the Buyer elects to consummate the transactions contemplated by this Agreement, the applicable Disclosure Schedule shall be deemed amended and supplemented by all information set forth in Section 6.1 have been satisfied and/or for purposes such Disclosure Supplement, each of Article VII)the representations and warranties made in this Agreement shall be deemed qualified by the Disclosure Supplement, nor and no Buyer Indemnified Party shall make any claim in respect of the information contained disclosed in or the delivery of any such Disclosure Supplement affect any of the Buyer’s rights or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereofSupplement.

Updates to Schedules. From and BLS shall update the schedules listed immediately after the date of this Agreement until the earlier to occur of the Closing and paragraph on the date on which this the Revolving Credit Agreement is terminated in accordance Borrowers deliver each quarterly Compliance Certificate. Provided that BLS delivers such updates with its termseach Compliance Certificate and that the Revolving Credit Agreement Borrowers timely deliver such Compliance Certificates, the Company or the Seller, as applicable, shall disclose to the Buyer in writing (in the form of updates to the applicable Schedules delivered on the date hereof (each such update, a “Disclosure Supplement”)1) any informationinaccuracy in such schedules between due dates for Compliance Certificates shall not be a default hereunder, event, matter, action or omission hereafter arising or discovered which and (i2) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or the Seller’s representations and warranties contained herein true and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement schedules shall be deemed to amend and/or supplement be amended upon delivery thereof. Schedule II - Capitalization Schedule III - Credit Parties Schedule V - Owned Real Estate BLS shall update the schedules listed immediately after this paragraph as soon as reasonably practicable after receipt thereof from the insurer. Provided that BLS delivers such updates as stated, (1) any inaccuracy in such schedules between due dates for Compliance Certificates shall not be a default hereunder, and (2) such schedules shall be deemed to be amended upon delivery thereof. Schedule VII - Insurance Policies Should any of the information or disclosures provided on any of the other Schedules delivered on attached hereto become outdated or incorrect in any material respect, BLS shall promptly provide the date hereof for any purpose hereunder (including for purposes of determining whether the conditions set forth Agent in Section 6.1 writing with such revisions or updates to such Schedule as may be necessary or appropriate to update or correct same; provided, however, that no Schedule shall be deemed to have been satisfied and/or for purposes of Article VII)amended, modified or superseded by any such correction or update, nor shall any breach of warranty or representation resulting from the information contained in inaccuracy or the delivery incompleteness of any Disclosure Supplement affect any of such Schedule be deemed to have been cured thereby, unless and until the Buyer’s rights Majority Secured Parties, in their sole and absolute discretion, shall have accepted in writing such revisions or remedies under ARTICLE VII hereof, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereofupdates to such Schedule.

Updates to Schedules. From Upon obtaining knowledge thereof, the Company and Cinemark shall give prompt notice to Contributor of the occurrence or non-occurrence of any event after the date hereof, the occurrence or non-occurrence of which has caused any representation or warranty contained in this Agreement to be untrue or inaccurate such that the conditions to closing set forth in Section 4(b), shall not be met. Should any such occurrence or non-occurrence referenced herein require any change in the Schedules, the Company and Cinemark shall deliver to Contributor a supplement to the Schedules specifying such change; provided that the Company and Cinemark shall only be entitled to update, amend or modify the Schedules after the date of this Agreement until the earlier Closing Date (the “Update Period”) to occur of the Closing and the date on which this Agreement is terminated in accordance with its termsreflect factors, the Company circumstances or the Sellerevents first arising or, as applicable, shall disclose to the Buyer in writing (in the form case of updates representations given to the applicable Schedules delivered on the date hereof (each such update, a “Disclosure Supplement”)) any information, event, matter, action or omission hereafter arising or discovered which (i) if existing or known on the date of this Agreement, would be required to be disclosed pursuant to this Agreement in order to make the Company’s or Knowledge, becoming known to the Seller’s Company, during the Update Period. The information contained in such supplement will be deemed to become part of the Schedules and will be deemed to qualify and constitute an exception to the representations and warranties contained herein true for purposes of Contributor’s right to indemnification hereunder and not misleading, or (ii) causes or constitutes a breach of any such representation or warranty contained in ARTICLE II or ARTICLE III, respectively, or a breach of any covenant hereunder by the Company or the Seller or would constitute a breach of any representation or warranty contained in ARTICLE II or ARTICLE III, respectively, if again made at or subsequent to the time the Disclosure Supplement in question is delivered to the Buyer. No information contained in any Disclosure Supplement shall be deemed to amend and/or supplement also modify the Schedules delivered on the date hereof for any purpose hereunder (including hereto for purposes of determining whether the conditions set forth in Section 6.1 to closing have been satisfied and/or for purposes unless Contributor delivers written notice of Article VII), nor shall its objection to the information contained in or Company and Cinemark within ten (10) days after the date the supplement is delivered. The delivery of any Disclosure Supplement affect any Schedule supplement pursuant to this Section 6.4 shall not be deemed an admission or an acknowledgement (i) that the disclosures contained in such supplement are material or would reasonably be expected to have a Material Adverse Effect or are outside of the Buyer’s rights ordinary course of business or remedies under ARTICLE VII hereofinconsistent with past practice, which rights and remedies shall be determined on the basis of the Schedules delivered on the date hereofor (ii) that there has occurred an actual or anticipatory breach of, or failure to comply with or satisfy, any representation, warranty, covenant, condition or agreement.