Certain Covenants, Representations and Warranties of Client In connection with the Co-Managers’ activities hereunder, Client hereby represents, warrants, covenants, and agrees, as applicable, to each Co-Manager:
a. Client is duly organized and validly exists as a limited liability company in good standing under the laws of the state of Delaware, has all requisite power and authority to enter into this Agreement, and has all requisite power and authority to conduct its business as described in the Offering Circular.
b. No consent, approval, authorization, or other order of any governmental authority is required in connection with the execution or delivery by the Client of this Agreement or the issuance and sale by the Client of the Securities, except such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or applicable state securities laws.
c. No defaults exist in the due performance or observance of any material obligation, term, covenant, or condition of any agreement or instrument to which the Client is a party or by which it is bound.
d. At the time of the issuance of the Securities, the Securities will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and non-assessable and will conform to the description in the Offering Circular.
e. Subject to the performance of the Client’s obligations hereunder, the holders of the Securities will have the rights described in the Offering Circular and associated transaction documents.
f. This Agreement, when executed by the Client, will have been duly authorized and will be a valid and binding agreement of the Client, enforceable in accordance with its terms.
g. Client will cooperate with each Co-Manager and provide it reasonable access to the officers, directors, employees, and advisers of Client and Masterworks, and furnish each Co-Manager all information and data regarding the business and financial condition of Client and Masterworks that any Co-Manager deems appropriate for purposes of the Offering (the “Information”).
h. As of each date of any offer of the Securities and each date of any closing of the Offering, the Offering Materials will be complete and correct in all material respects and, except for those statements for which written supplemental corrections or additions have been made or given to the investors participating in such closing, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
i. Client will allocate Securities to investors and take all steps reasonably necessary to ensure that the Offering is not over-allotted.
j. Client agrees to confirm all orders for purchase of Securities that are accepted by the Client and provide evidence of such confirmation to the Co-Managers.
k. Client will take reasonable steps to ensure that no officer, director, employee, or affiliate of the Client (except as otherwise described in the Offering Circular) buys or acquires any Securities in connection with the Offering.
l. Any projected or estimated financial information or other forward-looking information relating to issuer or administrator metrics and not the future performance of the securities offered, which the Client in the Offering Materials or otherwise provides to any Co-Manager will be made by Client in good faith, based on management’s best estimates at the time and based on facts and assumptions, which management believes are reasonable. A full management’s discussion of the underlying assumptions and risks relating to achieving such projections will accompany all such projections or estimates.
m. Client acknowledges and agrees that each Co-Manager, in rendering its services hereunder: (i) will be using and relying on the Information provided by Client (as well as information available from affiliates of Client and public sources and other sources deemed reliable by Co-Manager) (ii) is authorized to transmit to any potential investor the Offering Materials and forms of subscription agreements and any other legal documentation supplied to the Co-Manager for transmission to any potential investor by or on behalf of the Client in connection with the Offering; and (iii) does not and will not assume responsibility for the accuracy or completeness of the Offering Materials or any Information or other Information regarding the Client. Each Co-Manager reserves the right to investigate and independently verify the Client’s representations and claims.
n. Client will be solely responsible for the contents of the Offering Materials (as amended and supplemented and including any information incorporated therein by reference).
o. If at any time prior to the completion of the offer and sale of the Securities an event occurs or circumstance exists and the Offering Materials (as then amended and supplemented) include any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, Client will promptly notify each Co-Manager of such event and each Co-Manager will suspend solicitations of prospective purchasers of the Securities until such time as Client shall prepare (and Client agrees that, if it shall have notified each Co-Manager to suspend solicitations after Client has accepted orders from prospective purchasers, it will promptly prepare) a supplement or amendment to the Offering Circular, which corrects such statement(s) or omission(s).
p. Client shall not make any written or oral representations or statements to investors that contradict or are inconsistent with the statements made in the Offering Circular, as amended or supplemented.
q. Any advice rendered or material provided by a Co-Manager during the term of this Agreement or during the Offering process was and is intended solely for the benefit and confidential use of the Client and will not be reproduced, summarized, described, referred to, or given to any other person or entity for any purpose without the Co-Manager’s prior written consent. Each Co-Manager is an independent contractor and is being retained solely to assist Client in its efforts to effect the Offering.
r. Client understands and agrees that neither Co-Manager is or will be construed as a fiduciary of the Client and will have no duties or liabilities to the equity holders or creditors of the Client or to any other person or entity by virtue of this Agreement, other than fiduciary duties imposed under applicable law, rules, or regulations in connection with the arrangements contemplated hereby, and to the fullest extent permitted under applicable law, rules, or regulations, Client hereby expressly waives all of such duties and liabilities.
s. Client understands and agrees that neither Co-Manager will provide legal, accounting, and/or tax advice and Client agrees to retain its own counsel concerning any necessary legal, accounting, and tax matters; and nothing contained herein shall be construed to obligate a Co-Manager to purchase, as principal, any of the securities offered in the Offering.
t. There are no brokers, representatives, or other persons (other than persons associated with the Co-Managers), which have an interest in compensation due to either Co-Manager from any transaction contemplated herein.
u. The Offering of the Securities shall be at the price and upon the terms and conditions set forth in the Offering Circular and the exhibits and appendices thereto and any amendments or supplements thereto.
v. Client will comply with all requirements imposed upon it by of Regulation A, the regulations and rules thereunder, and applicable federal and state securities laws; and Client has not taken, and agrees that it will not take, any action, directly or indirectly, so as to cause the Offering to fail to be entitled to the exemption from registration afforded by Regulation A of Section 401 of the JOBS Act Section 3(b), as amended.
w. In effecting the Offering, Client agrees to comply in all material respects with applicable provisions of the Securities Act and any rules and regulations thereunder and any applicable state laws and requirements, as well as any federal, state, or foreign judicial decisions or opinions related thereto.
x. Client will not solicit investors unless such solicitation complies in all material respects with the requirements of applicable federal securities laws, including Rule 255 under the Securities Act, and will not make any sale of the Securities until the Offering Statement with respect to the Offering is qualified by the SEC, and Client covenants and agrees that the Offering does not and shall not violate any federal, state, local, foreign or other laws, rules, regulations or interpretations, including those rules, regulations and interpretations of the SEC, IRS, FINRA and any other self-regulatory organization or domestic or foreign governmental agency or entity.
y. Client will provide copies to Co-Manager of any current or previous filings with the SEC in the preceding twelve (12) months.
z. Client will collect and maintain investor funds in a segregated account and will treat investor funds and use the proceeds in a manner consistent with the description in the Offering Circular.
aa. Client will take such action as is necessary to qualify the Securities for offer and sale under the securities laws of such states and other jurisdictions of the United States (including but not limited to federal securities laws).
bb. Client agrees (i) that any subscription or other similar agreement pursuant to which Securities are sold shall be in form and substance reasonably satisfactory to each of the Co-Managers and its counsel, shall comply with all applicable federal and state laws, rules and regulations and such other terms and conditions as are customary for exempt transactions of securities pursuant to Regulation A, and (ii) to provide a copy of such executed document to each Co-Manager promptly following the execution and delivery thereof by an investor. The Client agrees that any representations and warranties made by it to any investor in the Offering shall be deemed also to be made to the Co-Managers for their benefit.
Nonsurvival of Representations, Warranties and Covenants None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and all such representations, warranties, covenants, obligations or other agreements shall terminate and expire upon the occurrence of the Closing (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing and (b) this Article X and any corresponding definitions set forth in Article I.
Non-Survival of Representations, Warranties and Covenants None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and all such representations, warranties, covenants, obligations or other agreements shall terminate and expire upon the occurrence of the Closing (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing and (b) this Article X and any corresponding definitions set forth in Article I.
Survival of Representations, Warranties and Covenants (a) All representations, warranties, covenants, agreements and obligations of each Indemnifying Party contained in this Agreement and all claims of any Acquiring Party Indemnitee or Transferor Party Indemnitee in respect of any breach of any representation, warranty, covenant, agreement or obligation of any Indemnifying Party contained in this Agreement, shall survive the execution of this Agreement, and shall expire 18 months following the Closing Date, except that:
(i) the covenants, agreements or obligations of any of the Transferor Parties or any of the Acquiring Parties which by their terms are to be performed after the execution of this Agreement shall survive the Closing Date and shall not expire unless otherwise expressly provided in this Agreement, including, without limitation, the covenants, agreements or obligations of any of the Transferor Parties or any of the Acquiring Parties in Sections 5.7, 5.8, 9.1, 9.2 and 9.4; and
(ii) the Excluded Representations and Warranties, and all claims of any Transferor Party Indemnitee or Acquiring Party Indemnitee in respect of any breach of any such representation or warranty, shall survive the Closing Date and shall expire 30 days after the expiration of all applicable statutes of limitations, including extensions thereof.
(b) Notwithstanding anything herein to the contrary, indemnification for claims for which written notice as provided in Section 9.5 has been given prior to the expiration of the representation, warranty, covenant, agreement or obligation upon which such claim is based shall not expire, and claims for indemnification thereon may be pursued, until the final resolution of such claim.
(c) Notwithstanding anything herein to the contrary, indemnification for claims which arise out of the fraud, gross negligence, action taken in bad faith or intentional misrepresentation of the Indemnifying Party shall expire 30 days after the expiration of all applicable statutes of limitations, including extensions thereof.
(d) No Indemnifying Party is required to indemnify any Indemnitee under this Agreement for any loss resulting from an inaccurate representation herein if the Indemnifying Party establishes that the Indemnitee had knowledge of that inaccuracy before the Closing.
Nonsurvival of Representations, Warranties and Agreements None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, except for those covenants and agreements contained herein and therein which by their terms apply in whole or in part after the Effective Time.
Reassertion of Representations and Warranties, No Default The Borrower hereby represents that on and as of the date hereof and after giving effect to this Amendment (a) all of the representations and warranties in the Credit Agreement are true, correct, and complete in all respects as of the date hereof as though made on and as of such date, except for changes permitted by the terms of the Credit Agreement, and (b) there will exist no Default or Event of Default under the Credit Agreement as amended by this Amendment on such date that the Bank has not waived.
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS Each Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
Non-Survival of Representations and Covenants The respective representations, warranties, obligations, covenants, and agreements of the Parties shall not survive the Effective Time except for this Section 10.3 and Articles II, III, IV and XI and Sections 8.10, 8.11 and 8.12 of this Agreement.
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.
Termination of Representations and Warranties The representations and warranties of the parties set forth in this Agreement shall terminate at the Effective Time.
