Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that: (a) The above premises are true and complete; (b) Assignee is duly organized and validly existing under the laws of the jurisdiction of its formation, and has the requisite power and authority to enter into this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party and to consummate the transactions contemplated hereby and thereby; (c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assignee, (ii) do not contravene the terms of Assignee’s organizational documents, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee; (d) This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity); (e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time; (f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect; (g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee; (h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents. (i) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor. (j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt. 3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.
Appears in 2 contracts
Samples: Assignment of Debt Agreement (Vape Holdings, Inc.), Assignment of Debt Agreement (Vape Holdings, Inc.)
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, represents and warrants and covenants to Assignor thatas follows:
(a) The above premises are true Assignee is a corporation duly organized in existing in good standing under the laws of the state of Delaware and complete;has the corporate power and authority to carry on its business as presently conducted and to perform its obligations under this Assignment.
(b) Assignee is duly organized not a Governmental Entity or government owned or controlled and validly existing under the laws of neither Assignee or its properties is immune from the jurisdiction of its formationany court or from any legal process (whether through service or notice, and has attachment prior to judgment, attachment in aid of execution, execution or otherwise) nor does it have the requisite power and authority defense of sovereign immunity or similar defense available to enter into this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is it in any legal action or will be a party and to consummate the transactions contemplated hereby and thereby;proceeding.
(c) The execution, delivery and performance Assignee is a citizen of the United States (as defined in 40102 of Title 49 of the United States Code) holding an air carrier operating certificate issued by Assignee the Secretary of this Agreement and Transportation of the transactions contemplated hereby United States pursuant to chapter 447 of Title 49 of the United States Code for aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of cargo.
(id) have This Assignment has been duly authorized by all necessary officers, managers or members corporate action on the part of Assignee, does not require any approval of the stockholders of Assignee (ii) do not contravene or if such approval is required, such approval has been obtained), and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Assignee with any of the terms of Assignee’s organizational documents, or and provisions hereof will contravene any amendment thereof, (iii) do not materially violate, conflict with Law applicable to Assignee or result in any material breach or contravention of, or constitute any default under, or result in the creation of any lien underof, any contractual obligation lien, charge or encumbrance upon any property of Assignee under any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or any requirement of law applicable to Assigneecredit agreement, and (iv) do not materially violate any orders of any governmental authority againstcorporate charter or by-law, or binding uponother agreement or instrument to which Assignee is a party or by which Assignee or its properties or assets may be bound or affected.
(e) Assignee has received or has complied with every necessary consent, Assignee approval, order, or authorization of, or registration with, or the giving of prior notice to, any Governmental Entity having jurisdiction with respect to the knowledge use and operation of Assignee;the Aircraft and the execution and delivery of this Assignment of the validity and enforceability hereof.
(df) This Agreement Assignment has been duly executed entered into and delivered by Assignee and constitutes the legala valid, valid legal and binding obligations obligation of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws affecting the enforcement Laws and by general principles of creditors’ rights generally or by equitable principles relating to enforceability (regardless of equity, whether considered in a proceeding at law Law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(i) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc), Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor Assignors that:
(a) The above premises are true and complete;
(b) Assignee is duly organized and validly existing under the laws of the jurisdiction of its formation, and has the requisite power and authority to enter into this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assignee, (ii) do not contravene the terms of Assignee’s organizational documents, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment and is purchasing the Assigned Debt for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Agreement, and Assignee has had an opportunity to ask questions and receive answers from Debtor and its officers concerning Debtor’s financial situation, business, prospects, and any other matter that Assignee has deemed relevant or important in determining whether to enter into this Agreement. Among other things, Assignee is aware that Debtor’s business prospects are speculative. Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by AssignorAssignors, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor Assignors contained herein, and in this Agreement and supporting documents.purchasing the Assigned Debt hereunder, Assignee is not relying upon any representations of Assignors other than those contained herein; and
(i) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor Assignors and a breach of any one or more thereof may be waived by Assignor Assignors in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant. Any representations, warranties and covenants contained in Article 3 will survive the signing of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agent that (i) it has full power and authority, and has taken all actions necessary for Assignee, to execute and deliver this Agreement and to consummate the transactions contemplated hereby, (ii) it is not an Affiliate of a Lender, (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by executing, signing and delivering this Agreement, the Person signing, executing and delivering this Agreement on behalf of the Assignee is a duly authorized signatory for the Assignee and is authorized to execute, sign and deliver this Agreement and (v) both before and after giving effect to this Agreement and the transactions contemplated hereby, it is Solvent and (b) Assignee is duly organized appoints and validly existing authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the laws Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of the jurisdiction of Loan Documents, are required to be performed by it as a Lender, (d) confirms it has received such documents and information as it has deemed appropriate to make its formation, own credit analysis and has the requisite power and authority decision to enter into this Agreement and perform shall continue to make its obligations hereunder own credit decisions in taking or not taking any action under any Loan Document independently and each without reliance upon Agent, any L/C Issuer, any Lender or any other document contemplated hereby to which Assignee is or will be a party Indemnitee and to consummate based on such documents and information as it shall deem appropriate at the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneetime, (iie) do not contravene acknowledges and agrees that, as a Lender, it may receive material non-public information and confidential information concerning the terms of Assignee’s organizational documents, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable Credit Parties and their Affiliates and their Stock and agrees to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee use such information in accordance with its termsSection 9.10 of the Credit Agreement, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within specifies as its applicable lending offices (and addresses for notices) the meaning of Rule 501 of Regulation D under offices at the Securities Act, as presently in effect;
addresses set forth beneath its name on the signature pages hereof and (g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with to the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(hextent required pursuant to Section 10.1(f) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(i) Assignee is aware that its purchase of the Assigned Debt pursuant Credit Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate. The assignment fee of $3,500 required to this be paid to the Agent under Section 9.9 of the Credit Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be hereby waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenantAgent.
Appears in 1 contract
Samples: Assignment (Akorn Inc)
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agent that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of [_______], a Lender, and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by executing, signing and delivering this Assignment via ClearPar® or any other electronic settlement system designated by the Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is an Authorized signer for the Assignor and is authorized to execute, sign and deliver this Assignment, (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document independently and the Assigned Debt. No representations or warranties have been made to Assignee by Assignorwithout reliance upon Agent, any L/C Issuer, any Lender or any of its respective officersother Indemnitee and based on such documents and information as it shall deem appropriate at the time, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(ie) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that that, as a Lender, it shall be solely responsible may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Stock and agrees to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion use such information in accordance with Section 9.10 of the Assigned Debt.
3.2 The representationsCredit Agreement, warranties (f) specifies as its applicable lending offices (and covenants contained addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be paid under Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach 9.9 of the same Credit Agreement and (h) to the extent required pursuant to Section 10.1(f) of the Credit Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN, W-8IMY or any other representation or warranty or covenantW-9 and, if applicable, a portfolio interest exemption certificate.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agents that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of _______, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document independently and the Assigned Debt. No representations or warranties have been made to Assignee by Assignorwithout reliance upon any Agent, any Lender or any of its respective officersother Indemnitee and based on such documents and information as it shall deem appropriate at the time, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(ie) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that that, as a Lender, it may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Equity Interests and agrees to use such information in accordance with the Loan Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be solely responsible paid under the Loan Agreement and (h) to obtain any legal opinion necessary the extent required pursuant to clear shares of common stock issuable to Assignee upon any conversion Section 3.4(f) of the Assigned DebtLoan Agreement, attaches two completed originals of IRS Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee representshereby makes the following representations and warranties, warrants which shall continue in effect after, and covenants to Assignor thatsurvive the date of, this Agreement and, additionally, makes the following covenants:
(a) The above premises are true and complete;
(b) Assignee is duly organized and validly existing under 2.1 Subject to the laws approval of the jurisdiction partners or members of its formationthe Partnerships, and has the requisite power and authority to enter into this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement are within the legal capacity and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members power of Assignee, (ii) do not contravene Assignee and neither violate nor constitute a default under the terms of Assignee’s organizational documentsany other agreement, document, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to instrument binding upon Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) . This Agreement has been duly executed and delivered by Assignee and constitutes the is a legal, valid and binding obligations obligation of Assignee, Assignee enforceable against Assignee in accordance with its terms, except insofar as enforceability the enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ ' rights generally or by and subject to equitable principles relating limiting the availability of specific performance or other equitable remedies.
2.2 Assignee covenants to enforceability (regardless use his best efforts to obtain, on or before January 7, 1998, all necessary consents of limited partners or other parties to the Partnership Agreements, as may be necessary for Assignee to enter into or consummate this Agreement. The name of each limited partner or other party to the Partnership Agreements is listed in Schedule 2.2 attached hereto. Assignee ------------ will certify to Assignor in writing on or before January 8, 1998 whether considered all necessary consents have been obtained. In the event that Assignee has not obtained all necessary consents by such date, or if Assignee cannot certify to Assignor by such date that all necessary consents have been obtained, then Assignor and/or Assignee shall have the right, to be exercised on or before January 9, 1998, to terminate this Agreement.
2.3 There are no actions, suits or proceedings, and Assignee has no knowledge of any actions, suits or proceedings threatened, against Assignee or the Partnerships, which would as of the date hereof prevent or substantially hinder the consummation of the transactions contemplated by this Agreement. Assignee in his capacity as the President of Assignor has in all material respects substantially performed all obligations required to be performed under the Partnership Agreements to date and is not in default in any material respect under any of such Partnership Agreements. Further, to the best of Assignee's knowledge, none of the parties to the Partnership Agreements are in breach of, or default under, any of the Partnership Agreements, and to the best of Assignee's knowledge, no event has occurred which, with the passage of time or the giving of notice or both, would constitute a proceeding at law breach of, or default under, any of the Partnership Agreements.
2.4 The financial information respecting each of the Partnerships, which has been examined by Assignor, has been prepared by Assignee in equity);
(e) Assignee understands accordance with generally accepted accounting principles for the periods therein specified, except that there is no disclosure of items customarily contained in footnotes and such financial statements are not audited. To the Assigned Debt knowledge of Assignee, there will not be registered be, as the date of this Agreement, any liability or obligation of Assignor pertaining to any of the Partnerships or under the Securities Act Partnership Agreements which are not reflected or reserved against in the financial statements of 1933the Partnerships, except liabilities and/or obligations that do not have or might reasonably be expected not to have, in the aggregate, a material and adverse effect on the Partnerships or under the Partnership Agreements.
2.5 All required federal, state and local tax returns or appropriate extension requests of the Partnerships have been filed.
2.6 The Partnerships maintain the same organizational validity, standing and qualifications to do business under the laws of the state or states of their formation and maintain the same requisite partnership power and authority to carry on the business of the Partnerships as amended (the “Securities Act”) they did at the time they were originally transferred by Assignee to Assignor.
2.7 Set forth in Schedule 2.7 is a description of purchase andAssignor's interest in ------------ each of the Partnerships, thereforeincluding, canbut not be resold unless it is registered under limited to, the Securities Act percentage of any back-in arrangements to which Assignor has any interest.
2.8 To the best of Assignee's knowledge, except as set forth on Schedule -------- 2.8, each of the Partnerships (a) has complied in all material respects with all --- laws and regulations applicable state securities laws to its respective Partnership Agreement or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to which compliance is a condition of engaging in the Assigned Debt business of such Partnership as currently conducted by such Partnership, including, but not limited to, state and federal securities laws and regulations; (b) is in compliance with all terms and conditions in all material respects with, and is in possession of, from the appropriate agency, commission, board and governmental body or authority, whether federal, state or local, all of the required licenses, permits, authorizations, approvals, franchises and rights which (i) are necessary for it to file for or comply engage in the business of the Partnership as currently conducted, and (ii) if not possessed by such Partnership would have a material and adverse effect on the business of the Partnership; (c) is also in compliance in all material respects with any exemption from registrationand all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in those laws or contained in any regulation, code, plan, order, decree, judgment, notice or demand letter issued, entered, promulgated or approved by any appropriate agency, commission, board or governmental body or authority, whether federal, state or local. Assignee has not been formed solely for the purpose received notice of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee or is capable aware of, any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans (other than changes of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Actlaw, as presently to which no representation is made) which may interfere with or prevent continued compliance by Assignee, Assignor or the Partnerships with such laws, or which may give rise to any common law or legal liability, or otherwise form the basis of any claim, action, suit, proceeding, hearing or investigation under such laws or which would have a material and adverse effect on the financial condition, properties, prospects or operations of the Partnerships.
2.09 As of the Effective Date, Assignee understands that he will acquire all of Assignor's right, title, interest, duties and obligations in effect;and to the Partnership Agreements.
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with 2.10 The consummation of the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had will not in any way limit or expand the opportunity to consult with counsel of its choosing with respect to this Agreement rights, duties and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(i) Assignee is aware that its purchase obligations of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.limited partners under the
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agent that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of _______, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document independently and the Assigned Debt. No representations or warranties have been made to Assignee by Assignorwithout reliance upon Agent, any LC Issuer, any Lender or any of its respective officersother Indemnitee and based on such documents and information as it shall deem appropriate at the time, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(ie) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that that, as a Lender, it may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Equity Interests and agrees to use such information in accordance with the Loan Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion paid under Section 9.9 of the Assigned Debt.
3.2 The representations, warranties Loan Agreement and covenants contained in (h) to the extent required pursuant to Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach 3.9(f) of the same Loan Agreement, attaches two completed originals of IRS Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY or any other representation or warranty or covenantW-9 and, if applicable, a portfolio interest exemption certificate.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agents that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of _______, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document independently and the Assigned Debt. No representations or warranties have been made to Assignee by Assignorwithout reliance upon any Agent, any Lender or any of its respective officersother Indemnitee and based on such documents and information as it shall deem appropriate at the time, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(ie) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that that, as a Lender, it may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Equity Interests and agrees to use such information in accordance with the Loan Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be solely responsible paid under the Loan Agreement and (h) to obtain any legal opinion necessary the extent required pursuant to clear shares of common stock issuable to Assignee upon any conversion Section 3.9(f) of the Assigned Debt.
3.2 The representationsLoan Agreement, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit attaches two completed originals of Assignor and IRS Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY or W-9 and, if applicable, a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.portfolio interest exemption certificate.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agent that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by executing, signing and delivering this Assignment, the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Assignment (b) appoints and authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under the Loan Documents and the Intercreditor Agreement as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents and the Intercreditor Agreement, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, Intercreditor Agreement independently and without reliance upon the Agent or any of its respective officersLender and based on such documents and information as it shall deem appropriate at the time, employees(e) confirms that it has received, agents, sub-agents, affiliates or subsidiaries, other than and agrees to bound by the representations of Assignor contained in this Agreement terms and supporting documents.
(i) Assignee is aware that its purchase provisions of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to Loan Documents and the risk of complete loss. Assignee is ableIntercreditor Agreement, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
and (jf) Assignee acknowledges and agrees that it shall be solely responsible to obtain does not have, and that it disclaims, any legal opinion necessary to clear shares interest in that portion of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representationsLoan (including related Collateral and proceeds thereof), warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived retained by Assignor in whole or in part at any time without prejudice to its rights in respect to any held by other breach of the same or any other representation or warranty or covenantLenders.
Appears in 1 contract
Samples: Intercreditor Agreement (Sterling Construction Co Inc)
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true and complete;
(b) Assignee is duly organized and validly existing under the laws of the jurisdiction of its formation, and has the requisite power and authority to enter into this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assignee, (ii) do not contravene the terms of Assignee’s organizational documents, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment and is purchasing the Assigned Debt for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Agreement, and Assignee has had an opportunity to ask questions and receive answers from Debtor and its officers concerning Debtor’s financial situation, business, prospects, and any other matter that Assignee has deemed relevant or important in determining whether to enter into this Agreement. Among other things, Assignee is aware that Debtor’s business prospects are speculative and the Assigned Debt may have been in technical default prior to assignment. Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained herein, and in this Agreement and supporting documents.purchasing the Assigned Debt hereunder, Assignee is not relying upon any representations of Assignor other than those contained herein; and
(i) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant. Any representations, warranties and covenants contained in Article 3 will survive the signing of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true represents and complete;
warrants to Assignor and the Agents that (bi) Assignee is duly organized it has full power and validly existing under the laws of the jurisdiction of its formationauthority, and has the requisite power taken all actions necessary for Assignee, to execute and authority to enter into deliver this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party Assignment and to consummate the transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assigneehereby, (ii) do not contravene it is [not] an Affiliate or an Approved Fund of _______, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of Assignee’s organizational documentsthe Loan Documents, or any amendment thereofare required to be performed by it as a Lender, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This Agreement confirms it has been duly executed received such documents and delivered by Assignee and constitutes the legal, valid and binding obligations of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (regardless of whether considered in a proceeding at law or in equity);
(e) Assignee understands that the Assigned Debt will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) at the time of purchase and, therefore, cannot be resold unless it is registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or has deemed appropriate for deciding whether to make its own credit analysis and decision to enter into this Agreement Assignee has had the opportunity Assignment and shall continue to consult with counsel of make its choosing with respect to this Agreement own credit decisions in taking or not taking any action under any Loan Document independently and the Assigned Debt. No representations or warranties have been made to Assignee by Assignorwithout reliance upon any Agent, any Lender or any of its respective officersother Indemnitee and based on such documents and information as it shall deem appropriate at the time, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(ie) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that that, as a Lender, it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.receive
Appears in 1 contract
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and covenants to Assignor that:
(a) The above premises are true and complete;
(b) Assignee is duly organized and validly existing under the laws of the jurisdiction of its formation, and has the all requisite power and authority to enter into and perform this Agreement and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party and to consummate the transactions Assignment contemplated hereby and thereby;
(c) The execution, delivery and performance by Assignee of this Agreement and the transactions contemplated hereby (i) have been duly authorized by all necessary officers, managers or members of Assignee, (ii) do not contravene pursuant to the terms of Assignee’s organizational documentsthis Agreement. Upon execution and delivery hereof, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) This this Agreement has been duly executed and delivered by Assignee and constitutes the shall be a legal, valid and binding obligations agreement of Assignee, enforceable against Assignee in accordance with its terms, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance insolvency or transfer, moratorium or similar other laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
3.2 There are no claims, actions, suits or proceedings pending or threatened against Assignee which, if determined adversely to Assignee, would materially and adversely affect the Assignee’s ability to perform its obligations under this Agreement.
3.3 No consent, approval or agreement of any individual or entity is required to be obtained by equitable principles Assignee in connection with the execution and performance by Assignee of this Agreement or the execution and performance by Assignor of any agreements, instruments or other obligations entered into in connection with this Agreement.
3.4 Assignee has taken no action and has no knowledge of any action which would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to enforceability (regardless of whether considered in a proceeding at law this Agreement or in equity);the transaction contemplated hereby.
(e) 3.5 Assignee understands that none of the Assigned Debt will not be Securities are registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. Assignee further understands that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2) at thereof and the time provisions of purchase Regulation D promulgated thereunder.
3.6 Assignee and Axxxxxxx’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by Assignee or its Advisors, if any, and understand the information contained therein, prior to the execution of this Agreement.
3.7 Assignee, either alone or together with its Advisors, if any, has such knowledge and experience in financial, tax, and business matters, and, thereforein particular, caninvestments in securities, so as to enable it to utilize the information made available to it in connection with the Assignment to evaluate the merits and risks of an investment in the Securities and the Company and to make an informed investment decision with respect thereto.
3.8 Assignee is acquiring the Securities solely for such Assignee’s own account for investment and not with a view to resale or distribution thereof, in whole or in part. Assignee has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of any of the Securities and Assignee has no plans to enter into any such agreement or arrangement.
3.9 Assignee understands and agrees that purchase of the Securities is a high-risk investment and Assignee is able to afford an investment in a speculative venture having the risks and objectives of the Company. Assignee must bear the substantial economic risks of the investment in the Securities indefinitely because none of the Securities may be resold sold, hypothecated or otherwise disposed of unless it is subsequently registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;.
(f) 3.10 Assignee is an “Accredited Investoraccredited investor” within the meaning of Regulation D, Rule 501 of Regulation D 501(a), promulgated by the Commission under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documents.
(i) 3.11 Assignee is aware that its purchase of hereby accepts the Assigned Debt pursuant foregoing assignment and transfer and promises to this Agreement is a speculative investment that is subject to be bound by and upon all the risk of complete loss. Assignee is ablecovenants, without impairing Assignee’s financial conditionagreements, to suffer a complete loss of such investment in Debtorterms and conditions set forth therein.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.
Appears in 1 contract
Samples: Assignment Agreement (SIMPLICITY ESPORTS & GAMING Co)
Representations, Warranties and Covenants of Assignee. 3.1 Assignee represents, warrants and represents to, and covenants to with, Assignor thatand Company that as of the date hereof:
(a) The above premises are true and complete;
(b) a. Assignee is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its formation, formation and has the all requisite power and authority to enter into this Agreement acquire, own and purchase the Assigned Loans;
b. Assignee has full power and authority to execute, deliver and perform its obligations hereunder and each other document contemplated hereby to which Assignee is or will be a party under this AAR Agreement and to consummate the transactions set forth herein. The consummation of the transactions contemplated hereby by this AAR Agreement is in the ordinary course of Assignee's business and thereby;
(c) will not conflict with, or result in a breach of, any of the terms, conditions or provisions of Assignee's charter or by-laws or any legal restriction, or any material agreement or instrument to which Assignee is now a party or by which it is bound, or result in the violation of any law, rule, regulation, order, judgment or decree to which Assignee or its property is subject. The execution, delivery and performance by Assignee of this AAR Agreement and the consummation by it of the transactions contemplated hereby (i) hereby, have been duly authorized by all necessary officers, managers or members action on the part of Assignee, (ii) do not contravene the terms of Assignee’s organizational documents, or any amendment thereof, (iii) do not materially violate, conflict with or result in any material breach or contravention of, or the creation of any lien under, any contractual obligation of Assignee or any requirement of law applicable to Assignee, and (iv) do not materially violate any orders of any governmental authority against, or binding upon, Assignee to the knowledge of Assignee;
(d) . This AAR Agreement has been duly executed and delivered by Assignee and, upon the due authorization, execution and constitutes delivery by Assignor and the legalCompany, will constitute the valid and legally binding obligations obligation of Assignee, Assignee enforceable against Assignee in accordance with its terms, terms except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws affecting the enforcement of creditors’ rights generally now or by equitable principles hereafter in effect relating to enforceability (creditors' rights generally, and by general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law law;
c. No material consent, approval, order or authorization of, or declaration, filing or registration with, any governmental entity is required to be obtained or made by Assignee in connection with the execution, delivery or performance by Assignee of this AAR Agreement, or the consummation by it of the transactions contemplated hereby;
d. There is no action, suit, proceeding, investigation or litigation pending or, to Assignee's knowledge, threatened, which either in any instance or in equity)the aggregate, if determined adversely to Assignee, would adversely affect Assignee's execution or delivery of, or the enforceability of, this AAR Agreement, or Assignee's ability to perform its obligations under this AAR Agreement;
(e) e. Assignee understands that the Assigned Debt will Loans have not be been registered under the Securities Act of 19331934 (the "Securities Act") or the securities laws of any state;
f. Assignee is either (i) not an employee benefit plan that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the “Internal Revenue Code of 1986 (the "Code")(a "Plan") and not a Person acting, directly or indirectly, on behalf of or investing with "plan assets" of any such Plan or (ii) an employee benefit plan that is subject to ERISA and the assignment contemplated herein does not constitute and will not result in non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code;
g. Assignee assumes all of the rights of the Assignor under the Agreements with respect to the Assigned Loans including the right to enforce the representations and warranties of the Company contained in the Agreements; and
h. A registration statement on Form S-3 (File No. 333-140436), including the Base Prospectus (the "Registration Statement") has been filed with the Securities Act”and Exchange Commission (the "Commission") at the time of purchase and, therefore, cannot be resold unless it is registered and has become effective under the Securities Act and applicable state securities laws no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated, or unless an exemption from such registration requirements is available. Assignee is aware that Debtor is under no obligation to effect any such registration with respect to the Assigned Debt or to file for or comply with any exemption from registration. Assignee has not been formed solely for Assignee's knowledge, threatened, by the purpose of making this investment . Assignee has such knowledge and experience in financial and business matters that Assignee is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time;
(f) Assignee is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act, as presently in effect;
(g) There are no brokerage commissions, finder’s fees or similar fees or commissions payable by any party in connection with the transactions contemplated hereby based on any agreement, arrangement or understanding with Assignee or any action taken by Assignee;
(h) Assignee has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to enter into this Agreement Assignee has had the opportunity to consult with counsel of its choosing with respect to this Agreement and the Assigned Debt. No representations or warranties have been made to Assignee by Assignor, or any of its respective officers, employees, agents, sub-agents, affiliates or subsidiaries, other than the representations of Assignor contained in this Agreement and supporting documentsCommission.
(i) Assignee is aware that its purchase of the Assigned Debt pursuant to this Agreement is a speculative investment that is subject to the risk of complete loss. Assignee is able, without impairing Assignee’s financial condition, to suffer a complete loss of such investment in Debtor.
(j) Assignee acknowledges and agrees that it shall be solely responsible to obtain any legal opinion necessary to clear shares of common stock issuable to Assignee upon any conversion of the Assigned Debt.
3.2 The representations, warranties and covenants contained in Section 3.1 are provided for the exclusive benefit of Assignor and a breach of any one or more thereof may be waived by Assignor in whole or in part at any time without prejudice to its rights in respect to any other breach of the same or any other representation or warranty or covenant.
Appears in 1 contract
