CLAIM ASSIGNMENT AGREEMENT
TERMS AND CONDITIONS
TERMS ARE DEFINED IN YOUR CLAIM ASSIGNMENT AGREEMENT
I. PAYMENT AND REPAYMENT OF THE PURCHASE PRICE. No later than 3 business days after this Agreement has been executed by Buyer and Seller, Buyer shall initiate payment of the Purchase Price to the Seller by (a) electronic payment using information provided by Seller, (b) delivery of a check to Seller’s address above, or (c) other means agreed in writing by Buyer and Seller. Buyer assumes no risk that the Claim is legally impaired, and in the event that any part of the Claim is objected to or disallowed in the Bankruptcy Case: (i) this agreement shall without further action be rescinded, (ii) Buyer shall reassign Claim to Seller, and (iii) Seller shall, within 3 business days of receipt of notice of such objection or disallowance, repay the Purchase Price in cash to Buyer.
II. SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby makes the following representations and warranties to the Buyer:
the Claim has not been objected to in the Bankruptcy Case;
no payment has been received by or on behalf of Seller in full or partial satisfaction of the Claim;
Seller has not previously sold, assigned, withdrawn or pledged the Claim, in whole or in part, to any party;
Seller owns and has good and marketable title to the Claim, free and clear of any liens, claims security interests, participations, or encumbrances of any kind or nature whatsoever;
other than has been previously ruled upon by the Court, there are no offsets or defenses that have been or may be asserted by or on behalf of the Debtor(s), or their successors or assigns, or any other party to reduce the amount of the Claim or to reduce its value as compared to other similar claims asserted by trade vendors;
to the extent that any preference, avoidance action, adversary proceeding or demand, or objection to the Claim, has been pursued against the Seller by the Debtor, the Trustee, or their successors or assigns, such adversary proceeding, demand and/or claim objection has been fully resolved, all settlement payments required in connection therewith have been paid in full, and there are no disputes outstanding between Seller and the Debtor, estate, or the Trustee; and
Seller is not an insider within the meaning of 11 U.S.C. § 101(31) and is not, and has not been, a member of any creditors' committee appointed in the Bankruptcy Case or any related chapter 11 case or other bankruptcy proceeding.
III. NO RELIANCE. Seller represents that it has adequate information concerning the business and financial condition of the Debtor and the Bankruptcy Case in order to make an informed decision regarding the sale of the Claim, and that it has independently and without reliance on Buyer (including Buyer’s agents or representatives) made its own analysis and decision to enter into this Agreement. Seller is aware that the Purchase Price it receives for the sale of the Claim under this agreement may differ in both kind and amount from any distributions ultimately made in the Bankruptcy Case. Seller acknowledges that, except as set forth herein, neither Buyer, nor any of its agents or representatives, have made any representations whatsoever to Seller regarding the status of the Proceedings, the condition of the Debtor (financial or otherwise) or any other matter relating to the Bankruptcy Case.
IV. ATTORNEY-IN-FACT. Seller hereby irrevocably appoints Buyer as its true and lawful attorney-in-fact solely with respect to the Claim, and authorizes Buyer to act in Seller's name, place and stead, to demand, sue for, compromise and recover all such amounts which are, or may hereafter become due and payable for, or on account of the Claim herein assigned. Seller hereby grants to Buyer full authority to do all things necessary to enforce the Claim and Seller's rights thereunder. Seller agrees to take further reasonable action, at its own expense, as may be necessary to further memorialize, uphold and defend the effect of this agreement and provide Buyer with the benefit of any payments or distributions made on account of the Claim. Seller agrees to forward to Buyer all notices received from the Debtor, the Trustee, the Bankruptcy Court or any third party with respect to the Claim. Seller further agrees that if Seller receives any distributions on account of the Claim, whether in the form of cash, securities, instruments or any other property, the aforementioned shall constitute property of the Buyer to which Buyer has an absolute right. Seller shall hold such property and will, at its own expense, promptly deliver to Buyer any such property in the same form received, together with any endorsements or documents necessary to transfer such property to Buyer, within five business days of receipt.
V. JURISDICTION. The laws of the State of Florida shall govern this agreement, without giving effect to the choice of law principles thereof. As stated below, Buyer and Seller agree to arbitrate any disputes in arbitration located in Miami, Florida. To the extent that any dispute does not proceed in arbitration, you agree that any litigation relating to this Agreement shall be brought only in a court in Miami, Florida. Each party hereto consents to service of process by certified mail. Buyer and Seller waive any right to demand a trial by jury.
VI. CONSENT AND WAIVER. Seller waives its right to receive notice under Rule 3001 of the Federal Rules of Bankruptcy Procedure, waives any objection to the transfer of claim to Buyer on the books and records of the Debtor and the Bankruptcy Court, and consents to the substitution of Seller by Buyer for all purposes in the Bankruptcy Case with respect to the Claim. Buyer agrees to file the appropriate notices with the Bankruptcy Court, including the appropriate notices under Rule 3001(e) of the Federal Rules of Bankruptcy Procedure.
PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.
If Seller has a concern or dispute, Seller shall please send a written notice describing it and Seller’s desired resolution to admin@guaranteedclaimfunding.com. If not resolved within sixty (60) days, Seller agrees that any dispute arising out of or relating to any aspect of the relationship between you and Seller will not be decided by a judge or jury but instead by a single arbitrator in an arbitration administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules. This includes claims arising under this Agreement.
Buyer will pay all AAA fees for any arbitration, which will be held in the city of Miami, Florida. To learn more about the Rules and how to begin an arbitration, Seller may call any AAA office or go to www.adr.org.
The arbitrator may only resolve disputes between Seller and Buyer and may not consolidate claims without the consent of all parties. The arbitrator cannot hear class or representative claims or requests for relief on behalf of others who have sold bankruptcy claims to Buyer. In other words, Buyer and Seller may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any class or representative action. If a court or arbitrator decides that any part of this agreement to arbitrate cannot be enforced as to a particular claim for relief or remedy, then that claim or remedy (and only that claim or remedy) must be brought in court and any other claims must be arbitrated. If Seller prefers, Seller may instead take an individual dispute to small claims court.
VII. GENERAL. This Agreement shall be deemed an absolute and unconditional assignment of the Claim for the purpose of collection and satisfaction, and shall not be deemed to create a security interest. If any provision of this agreement is determined by any tribunal or court of competent jurisdiction to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this agreement shall remain in effect. Whenever used in this agreement, the singular shall include the plural, the plural shall include the singular, and the neuter gender shall include the male and female. Each individual executing this agreement represents and warrants that it is duly authorized to execute, perform and enforce this agreement on behalf of the entity for which it signs.
All representations, warranties, covenants and agreements contained herein shall survive the execution and delivery of this Agreement and the purchase and sale of the Claim and shall inure to the benefit of, be binding on and enforceable by the parties hereto and by the Parties' successors and assigns. This Agreement may be executed in any number of counterparts (facsimile and email are satisfactory), each of which, when so executed and delivered, shall be an original, but all of which, together constitute one and the same instrument. This Assignment Agreement shall be read and interpreted according to its plain meaning and an ambiguity shall not be construed against either party. This Agreement constitutes the entire understanding between Buyer and Seller and supersedes any previous agreement, verbal or written, between the parties.