Common use of Certain Representations and Warranties; Limitations; Covenants Clause in Contracts

Certain Representations and Warranties; Limitations; Covenants. By executing and delivering an Assignment and Assumption, the parties to the assignment thereunder confirm to and agree with each other and the other parties hereto as follows: (i) the assignee under such Assignment and Assumption is acquiring Notes for its own account, for investment and not with a view to any distribution thereof within the meaning of the Securities Act; (ii) such assignee (A) understands that the Notes have not been and will not be registered under the Securities Act and the Notes are being issued by the Issuer in a transaction exempt from the registration requirements of the Securities Act and (B) agrees that it will not sell all or any part of the Notes and the Notes may not be offered or sold, except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable State laws; (iii) such assignee further understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to the assignee) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts; (iv) such assignee is an “Accredited Investor” (as defined in Rule 501(a) under the Securities Act). The financial position of such assignee is such that it can afford to bear the economic risk of holding the Notes. Such assignee can afford to suffer the complete loss of its investment in the Notes. The knowledge and experience of such assignee in financial and business matters is such that it is capable of evaluating the risks of the investment in the Notes. Such assignee acknowledges that no representations, express or implied, are being made with respect to the Issuer or any of its Subsidiaries, the Notes or otherwise, other than those expressly set forth herein. (v) Except as disclosed in writing by each assignee, the source of funds to be used by such assignee to pay the purchase price of the Notes purchased by such assignee hereunder does not include assets of any employee benefit plan (other than a plan exempt from the coverage of ERISA) or plan or any other entity the assets of which consist of “plan assets” as defined in Department of Labor regulation Section 2510.3 -101. As used herein, the term “employee benefit plan” shall have the meaning assigned to such term in Section 3 of ERISA, and the term “plan” shall have the meaning assigned thereto in Section 4975(e)(1) of the Code. (vi) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Holder makes no representation or warranty, express or implied, and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the other Note Documents or any other instrument or document furnished pursuant hereto or the attachment, perfection or priority of any security interest or mortgage, (vii) the assigning Holder makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer and its Subsidiaries or any other Person primarily or secondarily liable in respect of any of the Obligations, or the performance or observance by the Note Parties or any other Person primarily or secondarily liable in respect of any of the Obligations of any of its obligations under this Agreement or any of the other Note Documents or any other instrument or document furnished pursuant hereto or thereto; (viii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption; (ix) such assignee will, independently and without reliance upon the assigning Holder, the Administrative Holder or any other Holder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (x) such assignee appoints and authorizes the Agents to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Note Documents as are delegated to the Agents by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; (xi) such assignee agrees that it will perform in accordance with this Agreement and the other Note Documents all of the obligations that by the terms thereof are required to be performed by it as a Holder; (xii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Assumption; and (xiii) such assignee acknowledges that it has complied with the provisions of Section 9.11 to the extent applicable.