Representations of Assignee. Assignee makes and confirms to the Agent, Assignor and the other Lenders all of the representations, warranties and covenants of a Lender under Articles 14 and 18 of the Credit Agreement. Without limiting the foregoing, Assignee (a) represents and warrants that it is legally authorized to, and has full power and authority to, enter into this Agreement and perform its obligations under this Agreement; (b) confirms that it has received copies of such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (c) agrees that it has and will, independently and without reliance upon Assignor, any other Lender or the Agent and based upon such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in evaluating the Loans, the Loan Documents, the creditworthiness of the Borrower and the Guarantors and the value of the assets of the Borrower and the Guarantors, and taking or not taking action under the Loan Documents; (d) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers as are reasonably incidental thereto pursuant to the terms of the Loan Documents; (e) agrees that, by this Assignment, Assignee has become a party to and will perform in accordance with their terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; (f) represents and warrants that Assignee does not control, is not controlled by, is not under common control with and is otherwise free from influence or control by, the Borrower or any Guarantor and is not a Defaulting Lender or Affiliate of a Defaulting Lender, (g) represents and warrants that if Assignee is not incorporated under the laws of the United States of America or any State, it has on or prior to the date hereof delivered to the Borrower and the Agent certification as to its exemption (or lack thereof) from deduction or withholding of any United States federal income taxes and (h) if Assignee is an assignee of any portion of the Revolving Credit Notes, Assignee has a net worth or unfunded commitments as of the date hereof of not less than $100,000,000.00 unless waived in writing by the Borrower and the Agent as required by the Credit Agreement. Assignee agrees that the Borrower may rely on the representation contained in Section 4(h).
Representations of Assignee. The Assignee hereby represents and covenant, individually, to the Company that:
a. Assignee has all requisite power and authority to execute and deliver this Agreement and any other document contemplated by this Agreement to be signed by the Assignee and to perform its obligations hereunder and to consummate the transactions contemplated hereby;
b. Assignee understand that the shares to be issued upon conversion of the Note have not been, and may not be, registered under the Securities Act of 1933, as amended (the “Securities Act”) by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of Assignee’s representations as expressed herein or otherwise made pursuant hereto;
c. Assignee has substantial experience in evaluating and investing in securities of companies similar to the Company and acknowledges that it can protect its own interests. Assignee has such knowledge and experience in financial and business matters so it is capable of evaluating the merits and risks of its investment in the Company. Assignee is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the Securities and Exchange Commission under the Securities Act;
d. Assignee has had an opportunity to receive all information related to the Company requested by them and to ask questions of and receive answers from the Company regarding the Company, and its business. Assignee has reviewed the Company’s periodic reports on file with Securities and Exchange Act filings;
e. Assignee understands that there is a limited trading market for the shares issued upon conversion of the Note and that an active market may not develop for the shares.
f. Assignee represents and warrants that it has read the terms of the Note and agrees to such terms.
Representations of Assignee. Assignee hereby represents and warrants to Participant as follows:
(i) Assignee is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(ii) Assignee has the power and authority, and has taken all necessary and proper corporate action to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby;
(iii) this Agreement has been duly authorized, executed and delivered by Assignee and, assuming the due authorization, execution and delivery of this Agreement by Participant, constitutes the valid and binding obligation of Assignee enforceable against it in accordance with its terms, except as limited by laws affecting the enforcement of creditor’s rights or equitable principles generally; and
(iv) the execution, performance and delivery of this Agreement does not conflict with, or result in a breach of or default under, Assignee’s certificate of incorporation, any other agreement or instrument to which Assignee is a party, or any federal, state or local law, regulation, ruling or interpretation to which Assignee is subject.
Representations of Assignee. Assignee hereby represents and warrants to Assignor that:
(a) Assignee is duly organized and validly existing under the laws of the state of its organization and has been duly authorized by all necessary and appropriate action to enter into this Assignment and to consummate the transactions contemplated hereby. This Assignment is a valid and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, except insofar as enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor's rights generally and the availability of any particular equitable remedy.
(b) Assignee's execution and delivery of this Assignment, its performance of its obligations hereunder and its consummation and the validity of the transactions contemplated hereby do not require it to obtain any consent, approval or action of, or make any filing with or give any notice to, any corporation, person or firm or any public, governmental or regulatory body or judicial authority.
Representations of Assignee. Assignee covenants, warrants and represents the following to Assignor, which covenants, representations and warranties shall be continuing covenants, representations and warranties:
A. The execution, delivery and performance of this Assignment has been duly and validly authorized and is legally binding and enforceable against Assignee in accordance with its terms; and
B. The execution and delivery of this Assignment by Assignee and the consummation of the transactions contemplated hereby do not violate, conflict with, contravene or result in a breach of the terms, conditions and provisions of any instrument executed by Assignee or by which Assignee is bound.
Representations of Assignee. By agreeing to an assignment or transfer of rights or obligations under this Agreement, any assignee Lender shall be deemed (x) to have represented and warranted to the Borrower, the Administrative Agent and the assigning Lender that the assignee Lender is not a Competitor of the Borrower or a Disqualified Lender, and (y) to have agreed that, if the assignee is in breach of such representation and warranty and without otherwise limiting the Borrower’s rights under applicable law, the assignee Lender’s access to any Borrower Materials that are not marked “PUBLIC” pursuant to Section 6.02 will irreparably harm the Borrower. It is further acknowledged and agreed that the Administrative Agent and the assigning Lender may rely exclusively on the representations of such assignee Lender without any duty of inquiry or investigation and the Administrative Agent and assigning Lender shall not be liable for any action taken or not taken by them upon reliance on such representations.
Representations of Assignee. The Assignee hereby represents and covenants that:
(a) the Assignee is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada; and
(b) the Assignee has all requisite corporate power and authority to execute and deliver this Agreement and any other document contemplated by this Agreement to be signed by the Assignee and to perform its obligations hereunder and to consummate the transactions contemplated hereby.
Representations of Assignee. 5.1 Assignee represents and warrants to Assignor as follows:
5.1.1 Assignee is a corporation duly incorporated, validly existing, and in good standing under the laws of State of Delaware, and has the power, authority, and capacity to enter into this Agreement and to carry out its terms.
5.1.2 The execution and delivery of this Agreement and the License Agreement and the completion of the transactions contemplated hereby and thereby has been duly and validly authorized by all necessary corporate action on the part of Assignee, and this Agreement constitutes (and the License Agreement assuming due execution and delivery thereof by Assignor will constitute) a valid and binding obligation of the Assignee, enforceable against the Assignee in accordance with its terms.
5.1.3 Assignee, including its officers, employees and agents, makes no representations or warranties to Assignor that the Assigned Patents are or will be held valid or enforceable, or that the manufacture, importation, use, offer for sale, sale or other distribution of any Covered Products will not infringe any patent or other rights.
Representations of Assignee. Assignee makes and confirms to the Agent, Assignor and the other Lenders all of the representations, warranties and covenants of a Lender under Articles 14 and 18 of the Credit Agreement. Without limiting the foregoing, Assignee (a) represents and warrants that it is legally authorized to, and has full power and authority to, enter into this Agreement and perform its obligations under this Agreement; (b) confirms that it has received copies of such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (c) agrees that it has and will, independently and without reliance upon Assignor, any other Lender or the Agent and based upon such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in evaluating the Loans, the Loan Documents, the creditworthiness of the Borrower and the Guarantors and the value of the assets of the Borrower and the Guarantors, and taking or not taking action under the Loan Documents; (d) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers as are reasonably incidental thereto pursuant to the terms of the Loan Documents; (e) agrees that, by this Assignment, Assignee has become a party to and will perform in accordance with their terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a
Representations of Assignee. Assignee hereby represents and warrants to Participant as follows:
(i) Assignee is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(ii) Assignee has the power and authority, and has taken all necessary and proper corporate action to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby;
(iii) this Agreement has been duly authorized, executed and delivered by Assignee and, assuming the due authorization, execution and delivery of this Agreement by Participant, constitutes the valid and binding obligation of Assignee enforceable against it in accordance with its terms, except as limited by laws affecting the enforcement of creditor’s rights or equitable principles generally;
(iv) the execution, performance and delivery of this Agreement does not conflict with, or result in a breach of or default under, Assignee’s certificate of incorporation, any other agreement or instrument to which Assignee is a party, or any federal, state or local law, regulation, ruling or interpretation to which Assignee is subject; and
(v) each share of (1) the Series A Preferred Stock, (2) the Series B Preferred Stock, and (3) the Series C Preferred Stock issued to Participant hereunder is duly authorized, duly issued, fully paid and non-assessable and upon execution hereof will be owned by Participant free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
