Common use of Assignment of Purchase Agreement Clause in Contracts

Assignment of Purchase Agreement. The closing of this assignment transaction (“Assignment Closing”) and the closing of the sale transaction pursuant to the Purchase Agreement (“Sale Closing” and, together with the Assignment Closing, “Closing”) shall occur concurrently (with the Assignment Closing occurring immediately before the Sale Closing). Notwithstanding the foregoing, if the Sale Closing does not occur due solely to Assignee’s default under the Purchase Agreement and Assignor is not in default of the Assignment Agreement or Purchase Agreement, the Assignment Deposit shall be retained by Assignor as liquidated damages as provided herein. The date of the Sale Closing shall be set forth in the Purchase Agreement. Upon the Closing, Assignor shall assign, transfer, convey and deliver to Assignee, and Assignee shall take all of Assignor’s right, title and interest in and under the Purchase Agreement (“Assignment”) pursuant to the assignment of the Purchase Agreement attached hereto as Exhibit “B” (“Assignment of Purchase Agreement”). At the time of the Closing, subject to the terms and provisions set forth below in this Section 1 of the Assignment Agreement, in addition to the Assignment Consideration (defined below) paid to Assignor as provided herein, Assignee shall, via the transfer of immediately available funds to Escrow Holder (as defined below) (a) reimburse Assignor for (i) the deposits for the Purchase Option made under paragraph 56 of the Existing Lease, in the amount of One Hundred Sixty-Six Thousand Six Hundred Sixty-Five and 00/100 Dollars ($166,665.00), which amount has been paid by Assignor to Seller under the Existing Lease as of the Effective Date for the period through February 28, 2018 plus, if applicable, an additional Six Thousand Nine Hundred Forty-Four and 00/100 Dollars ($6,944.00) per month to be paid by Assignor to Seller under the Existing Lease for any period after March 1, 2018 up to the Closing (such amount be collectively referred to herein as the “Prepaid Purchase Deposit”), and (ii) One Thousand and 00/100 Dollars ($1,000.00) to the extent made by Assignor to Seller under the Purchase Agreement (the “PSA Deposit” and collectively with the Prepaid Purchase Deposit, “Sale Deposit”), and (b) pay to Assignor the amount of the security deposit in the amount of One Hundred Thousand and 00/100 Dollars ($100,000.00) under the Existing Lease (provided that if Seller returns an additional Fifty Thousand and 00/100 Dollars ($50,000.00) of the security deposit to Assignor pursuant to paragraph 54 of the Existing Lease before the Closing, then the payment under this clause (b) shall be reduced accordingly) (“Existing Lease Deposit”). Notwithstanding the foregoing or anything to the contrary in this Assignment Agreement, Assignee’s obligation to reimburse Assignor the Prepaid Purchase Deposit, the PSA Deposit and the Existing Lease Deposit is expressly contingent upon Assignee receiving a credit for such exact amounts against the purchase price paid by Assignee pursuant to the Purchase Agreement.

Assignment of Purchase Agreement. The closing of this assignment transaction (“Assignment Closing”) and the closing In consideration of the sale transaction Lenders entering into this Offshore Facility Agreement: (a) The Borrower hereby assigns, as of each date that is 30 (thirty) days prior to each date on which an Installment, Interest and all amounts due herein, are due and payable pursuant to the Purchase Agreement (“Sale Closing” and, together with the Assignment Closing, “Closing”) shall occur concurrently (with the Assignment Closing occurring immediately before the Sale Closing). Notwithstanding the foregoing, if the Sale Closing does not occur due solely to Assignee’s default under the Purchase Agreement and Assignor is not in default of the Assignment Agreement or Purchase Agreement, the Assignment Deposit shall be retained by Assignor as liquidated damages as provided herein. The date of the Sale Closing shall be set forth in the Purchase Agreement. Upon the Closing, Assignor shall assign, transfer, convey and deliver to Assignee, and Assignee shall take all of Assignor’s right, title and interest in and under the Purchase Agreement (“Assignment”) pursuant to the assignment of the Purchase Agreement attached hereto as Exhibit “B” (“Assignment of Purchase Agreement”). At the time of the Closing, subject to the terms and provisions set forth below conditions of this Offshore Facility Agreement, with full title guarantee and as a continuing security for the payment of its obligations hereunder (the “Secured Obligation”), an absolute security interest (“Security Interest”) in this Section 1 a portion of the Assignment Borrower’s rights, interest and remedies with respect to any and all of the Undertakings (including, but not limited to all of the Borrower’s rights to receive payment from Final Buyers, including (but not limited to) all of the Borrower’s future acquired rights to payment under the Purchase Agreements whether in the form of a letter of credit or right to title to the Goods or otherwise) which portion shall have a value not less than the value of such Installment, Interest and all amounts due herein. (b) The Borrower will fully perform all of its material obligations under the Purchase Agreements, and will enforce all of its rights and remedies thereunder as it deems appropriate in its reasonable business judgement; provided, however, that the Borrower will not take any action or fail to take any action which would result in a waiver or other loss of any material rights or remedy of the Borrower thereunder. (c) The Borrower will not, without the Administrative Agent’ prior written consent (which consent shall not be unreasonable withheld), modify, amend, supplement, compromise, satisfy, release or discharge the Purchase Agreements, any person liable directly or indirectly with respect thereto, or any agreement relating to the Purchase Agreements. (d) The Borrower will at all times remain liable to observe and perform all of its duties and obligations under the Purchase Agreements, and the Lenders’ exercise of any of its rights with respect to this Offshore Facility Agreement will not release the Borrower from any of such duties or obligations. The Lenders are not obligated to (I) perform or fulfil any of the Borrower’s duties or obligations under the Purchase Agreements (II) make any payment under the Purchase Agreements, (III) make any inquiry as to the sufficiency of any payment of property received by it under the Purchase Agreements or the efficiency of performance by any party under the Purchase Agreements, or (IV) present or file any claim, or take any action to collect or enforce any performance or payment of any amounts, or delivery of any property. (e) Effective from and after the occurrence of any Event of Default and during the continuation thereof, the Borrower hereby irrevocably authorizes and empowers the Administrative Agent, on behalf of the Lenders, at the Administrative Agent’s sole discretion, to assert, either directly or on behalf of the Borrower any claims the Borrower may then or thereafter have against Importer with respect to the Undertakings that are subject to this Offshore Facility Agreement, in addition such a manner, as the Administrative Agent or the Collateral Agent may deem proper, to receive and collect any and all damages, awards and other monies resulting therefrom and to apply the proceeds therefrom on account of the Secured Obligations, whether or not then due, in accordance with the terms of the Offshore Facility Agreement. The Borrower hereby authorizes the Administrative Agent and the Collateral Agent, on behalf of the Lenders to collect all amounts due to the Assignment Consideration (defined below) paid to Assignor as provided herein, Assignee shall, via the transfer Borrower under and by virtue of immediately available funds to Escrow Holder (as defined below) (a) reimburse Assignor for (i) the deposits for the Purchase Option made under paragraph 56 of the Existing Lease, in the amount of One Hundred Sixty-Six Thousand Six Hundred Sixty-Five and 00/100 Dollars ($166,665.00), which amount has been paid by Assignor Agreements including any future acquired rights to Seller under the Existing Lease as of the Effective Date for the period through February 28, 2018 plus, if applicable, an additional Six Thousand Nine Hundred Forty-Four and 00/100 Dollars ($6,944.00) per month to be paid by Assignor to Seller under the Existing Lease for any period after March 1, 2018 up to the Closing (such amount be collectively referred to herein as the “Prepaid Purchase Deposit”), and (ii) One Thousand and 00/100 Dollars ($1,000.00) to the extent made by Assignor to Seller under the Purchase Agreement (the “PSA Deposit” and collectively with the Prepaid Purchase Deposit, “Sale Deposit”), and (b) pay to Assignor the amount of the security deposit in the amount of One Hundred Thousand and 00/100 Dollars ($100,000.00) under the Existing Lease (provided that if Seller returns an additional Fifty Thousand and 00/100 Dollars ($50,000.00) of the security deposit to Assignor pursuant to paragraph 54 of the Existing Lease before the Closing, then the payment under this clause (b) shall be reduced accordingly) (“Existing Lease Deposit”). Notwithstanding the foregoing or anything to the contrary in this Assignment Agreement, Assignee’s obligation to reimburse Assignor the Prepaid Purchase Deposit, the PSA Deposit and the Existing Lease Deposit is expressly contingent upon Assignee receiving a credit for such exact amounts against the purchase price paid by Assignee pursuant to the Purchase Agreementthereunder.