General Legal claims: License, Sale, Declaration and Assignment

SALE, LICENSE, DECLARATION AND ASSIGNMENT

            WHEREAS, the undersigned ORIGINAL CLAIM HOLDERS(s), hereinafter referred to as the “ORIGINAL CLAIM HOLDER”, who has an “ORIGINAL CLAIM”, whose residence is listed below:



SALE AND ASSIGNMENT AGREEMENT (the “AGREEMENT”)


WHEREAS, the undersigned, hereinafter referred to as the “ORIGINAL CLAIM HOLDER”, is or was the owner of, resident of, or holder of an interest in, or was present at, property (the “PROPERTY”) that was impacted by Texas Winter Storm Uri beginning on February 10, 2021 and thereafter (the “Winter Storm”) at the following address:
[Address];

WHEREAS, the ORIGINAL CLAIM HOLDER suffered injury, loss, damage or harm of any kind, including personal injury and/or property damage (the “HARM”) at or relating to such PROPERTY arising from or related to the effects of the Winter Storm, including without limitation from the disruption in the provision of electrical power to the PROPERTY and/or ORIGINAL CLAIM HOLDER by electricity retailers, generators, utilities, natural gas suppliers, pipeline operators, electrical transmission companies and the like (the “Electrical Supply Failure”);

WHEREAS, the ORIGINAL CLAIM HOLDER has claims for HARM relating to the effects of the Winter Storm (including, without limitation, the Electrical Supply Failure), whether such claims arise as a matter of state or federal law, including, without limitation, the U.S. Bankruptcy Code, or are liquidated, unliquidated, fixed, contingent, disputed, undisputed, contractual, legal, or equitable, including, but not limited to, the right to sue for recovery relating to past, present or future HARM, and to recover reimbursement, compensatory and punitive damages, and costs and expenses of investigating and pursuing such claims, including fees and costs of attorneys and other service providers (such claims, the “ORIGINAL CLAIM(S),” provided that any such claims of the ORIGINAL CLAIM HOLDER that may not be assigned under the Texas Deceptive Trade Practices Act shall be referred to as the “TDTPA CLAIMS” and shall not be included in the ORIGINAL CLAIM(S);

WHEREAS, the ORIGINAL CLAIM HOLDER desires to sell, grant and convey to CIRCLESX RECOVERY LLC D/B/A THE TEXANS HELPING TEXANS RECOVERY FUND (the “COMPANY”), having a place of business at 12434 Kingsride #418, Houston, Texas 77024, all of such ORGINAL CLAIM HOLDER’s  right, title and interest in and to the ORIGINAL CLAIM(s) and a right to a payment equal in amount to fifty percent (50%) of any proceeds of the TDTPA CLAIMS received by the ORIGINAL CLAIM HOLDER from any party;

WHEREAS, the COMPANY desires to acquire all of ORIGINAL CLAIM HOLDER’s right, title and interest in and to the ORIGINAL CLAIM(S) and such right to a payment equal in amount to fifty percent (50%) of any proceeds of the TDTPA CLAIMS; and

WHEREAS, the ORIGINAL CLAIM HOLDER, has an account on the CirclesX platform which provides an online marketplace for people who want to make binding, tradable commitments to pre-buy, pre-sell, or even re-sell “stuff,” which could include, for example, physical products; service offerings; the right, at specified times, to occupy space in cars, trucks, buses, trains, garages, streets, sidewalks, classrooms, power, data, advertising, weather, legal claims; and potentially lots of other things as outlined in the Terms of Use for the CirclesX platform, and this Agreement forms a part of the overall business relationship between the ORIGINAL CLAIM HOLDER and the CirclesX platform (it being understood that to the extent this Agreement and the Terms of Use conflict, this Agreement shall control).

In consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the ORIGINAL CLAIM HOLDER and the COMPANY agree as follows, effective as of the date set forth below:
  1. Conveyance of ORIGINAL CLAIM(S) and Proceeds of TDTPA CLAIMS. ORIGINAL CLAIM HOLDER hereby irrevocably and unconditionally sells, assigns, transfers, grants and conveys to the COMPANY and its successors and assigns, and the COMPANY hereby purchases and receives, all right, title and interest in and to any ORIGINAL CLAIM(S) that now exist or may hereafter arise, including any derivative interest in such ORIGINAL CLAIM(S) and a right to a payment equal in amount to fifty percent (50%) of the gross proceeds of any TDTPA CLAIMS, in exchange for (i) a payment equal in amount to fifty percent (50%) of the proceeds arising from the settlement of or final judgment (in each case, without the possibility of further appeal) of the ORIGINAL CLAIM(S) (as determined pursuant to this Agreement), after reduction for the legal counsel fees and related legal costs and expenses borne by the COMPANY (and without taking into account any fees, costs and expenses of non-legal advisors and experts, whether engaged by the COMPANY directly or by legal counsel or other advisors to the COMPANY) in connection with pursuing recovery on such ORIGINAL CLAIM(S) (such fees, costs and expenses, as determined in the COMPANY’s sole discretion) (the “CLAIMHOLDER PURCHASE PRICE”); and (ii) ten dollars ($10) in cash, payable by the COMPANY by check sent to ORIGINAL CLAIM HOLDER at the address on file on the CirclesX platform (or such other address provided in any required claim documentation) or by crediting ORIGINAL CLAIM HOLDER’s CirclesX platform account. For the avoidance of doubt, nothing in this Agreement is intended to sell, assign, transfer, grant or convey a claim that is not assignable or transferrable under applicable law.
  2. Payment Upon Recovery; Wrong Pockets.
    1. The COMPANY covenants and agrees that reasonably promptly after (i) the settlement of or final judgment resolving any of the ORIGINAL CLAIM(S), (ii) verification of the amount of funds payable pursuant to such settlement or final judgement attributable to the damages to the ORIGINAL CLAIMHOLDER in respect of such ORIGINAL CLAIM(S), including without limitation by way of claims administrator, trustee, paying agent or similar agent or other process reasonably determined by the COMPANY in its sole discretion, (iii) the completion and execution by ORIGINAL CLAIMHOLDER of any documents required by the Company or a claims administrator, trustee, paying agent or similar agent or other process reasonably determined by the COMPANY in its sole discretion, in each case, as a condition of administering the ORIGINAL CLAIM(S) and making payments with respect thereto, including verification forms or affidavits, background checks, tax forms or certifications, “know your customer” information, waivers and releases of claims against the COMPANY or its agents with respect to amounts payable with respect to such claims and (iv) the receipt by the COMPANY of funds payable in connection with the settlement of or final judgment with respect to the ORIGINAL CLAIM(S) attributable to the ORIGINAL CLAIMHOLDER it shall pay over the Claimholder PURCHASE PRICE of such ORIGINAL CLAIM(S) to the ORIGINAL CLAIM HOLDER by credit to the ORIGINAL CLAIM HOLDER’s account on the CirclesX platform or check sent to ORIGINAL CLAIM HOLDER at the address on file on the CirclesX platform (or such other address provided in any required claim documentation). The provision by the ORIGINAL CLAIM HOLDER of any documentation required by this Section 2(a) is a condition precedent to performance by the COMPANY.
    2. To the extent that, after the date hereof, ORIGINAL CLAIM HOLDER receives from any source other than the COMPANY any proceeds or recoveries related to the ORIGINAL CLAIM(S), ORIGINAL CLAIM HOLDER shall promptly notify the COMPANY of such proceeds to the COMPANY on the CirclesX platform or at the COMPANY’s address set forth on the CirclesX platform website at the time of receipt by certified mail or overnight courier. Such proceeds or recoveries shall constitute property of the COMPANY to which the COMPANY has an absolute right, and ORIGINAL CLAIM HOLDER shall not have any equitable or beneficial interest in such proceeds or recoveries, and such proceeds or recoveries shall not be deemed to be property of ORIGINAL CLAIM HOLDER’s estate under Bankruptcy Code section 541(d); provided that the foregoing shall not be deemed to modify the COMPANY’s obligations pursuant to Section 2(a). ORIGINAL CLAIM HOLDER shall hold such proceeds or recoveries in trust for the benefit of the COMPANY and will, at ORIGINAL CLAIM HOLDER’s sole cost and expense, promptly deliver to the COMPANY in the same form received such amounts on the CirclesX platform or by mailing a check to the COMPANY’s address set forth on the CirclesX platform website at the time of receipt by certified mail or overnight courier.
    3. To the extent that, after the date hereof, ORIGINAL CLAIM HOLDER receives from any source any proceeds or recoveries related to the TDTPA CLAIMS, ORIGINAL CLAIM HOLDER shall promptly notify the COMPANY of such proceeds or recoveries on the CirclesX platform or at the COMPANY’s address set forth on the CirclesX platform website at the time of receipt by certified mail or overnight courier and shall promptly deliver to the COMPANY a payment equal in amount to fifty percent (50%) of the amounts so received o the CirclesX platform or by mailing a check to the COMPANY’s address set forth on the CirclesX platform website at the time of receipt by certified mail or overnight courier.
  3. Control over ORIGINAL CLAIM(S), Cooperation and Expenses of Prosecution.
    1. The COMPANY shall have the unilateral right to direct and control the prosecution, defense, settlement, litigation, recovery, abandonment and title to (or transfers of title to) and in respect of the ORIGINAL CLAIM(S) and all strategic decision making strategy with respect to the foregoing, including the selection, supervision and establishment of compensation for legal and other advisors and conduct of settlement discussions or entry into settlement agreements with respect thereto. The COMPANY has no duty or obligation to consult with or involve ORIGINAL CLAIM HOLDER in any element of the pursuit of recovery in respect of any of the ORIGINAL CLAIM(S), except as specifically agreed herein. THE COMPANY HAS NO OBLIGATION TO PURSUE ANY OF THE ORIGINAL CLAIM(S) AND MAY ELECT AT ANY TIME TO CEASE PURSUIT OF ANY OR ALL ORIGINAL CLAIM(S) IN ITS SOLE DISCRETION, ABANDON SUCH CLAIMS OR RESELL SUCH CLAIMS WITHOUT ANY NOTICE TO ORIGINAL CLAIM HOLDER OR FURTHER OBLIGATION TO ORIGINAL CLAIMHOLDER. ORIGINAL CLAIMHOLDER WILL HAVE NO RIGHT TO RECOVERY WITH RESPECT TO THE ORIGINAL CLAIM(S) EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
    2. ORIGINAL CLAIM HOLDER shall notify the COMPANY promptly [by certified mail or overnight courier] sent to the COMPANY’s address set forth on the CirclesX platform website at the time of receipt, and forward to the COMPANY promptly, and in any event at least five (5) business days in advance of any required action with respect thereto, any written or electronic communication, correspondence or notices received by ORIGINAL CLAIM HOLDER from any person with respect to any matter that is or could be related to any ORIGINAL CLAIM(S) or any litigation or other proceeding in connection therewith, including without limitation any correspondence or notice related to the existence or non-existence of insurance coverage therefor and class-action or other litigation notices or elections (including without limitation “opt-out” forms).
    3. ORIGINAL CLAIM HOLDER shall cooperate, upon the COMPANY’s request, with the COMPANY’s efforts to pursue the ORIGINAL CLAIM(S), including by promptly providing the COMPANY, upon request, with evidence relating to losses, damages or other expenses or costs incurred by ORIGINAL CLAIM HOLDER, in whatever form, whether applications, invoices, appraisals, estimates, papers, affidavits, photographs, models, samples or other physical exhibits, other documents or testimony with respect thereto, access to relevant properties, and information regarding potential witnesses. ORIGINAL CLAIM HOLDER, upon reasonable notice, agrees to appear in court or in any deposition or interview to provide such testimony, and agrees to provide any documentation related to the ORIGINAL CLAIM(S) to the COMPANY upon request.
    4. ORIGINAL CLAIM HOLDER agrees not to settle or compromise, or purport to settle or compromise on behalf of the COMPANY, any ORIGINAL CLAIM on or after the date hereof.
    5. ORIGINAL CLAIM HOLDER agrees to promptly execute and deliver, or cause to be promptly executed and delivered, all such instruments and documents (including any supporting documents evidencing the conveyance of the ORIGINAL CLAIM(S) to the COMPANY), and to take all such action as the COMPANY may reasonably request in order to effectuate the intent and purpose of, and to carry out the terms of, this Agreement.
    6. The COMPANY agrees that it will be responsible for all costs and expenses incurred by it after the date hereof with respect to the pursuit of the ORIGINAL CLAIM(S); provided that the COMPANY will not be responsible for any costs or expenses incurred by ORIGINAL CLAIM HOLDER, whether before or after the date hereof.
    7. The relationship between ORIGINAL CLAIM HOLDER and the COMPANY shall be that of buyer and seller, and the parties acknowledge and agree that ORIGINAL CLAIM HOLDER is transferring all legal and beneficial ownership in the ORIGINAL CLAIM(S) to the COMPANY as of the date hereof. The COMPANY is not acting as a trustee or agent for the ORIGINAL CLAIM HOLDER, nor does the COMPANY have any fiduciary obligations or other duties (whether express or implied) to the ORIGINAL CLAIM HOLDER, except as specifically set forth herein. This Agreement does not and shall not be construed so as to create a partnership, joint venture, or legal entity of any type between ORIGINAL CLAIM HOLDER and the COMPANY, and each party agrees not to construe this Agreement, or any of the transactions contemplated hereby, as a partnership for any purpose, except to the extent required by applicable law.
    8. ORIGINAL CLAIM HOLDER’s compliance with his, her or its obligations pursuant to this Section 3 is a condition precedent to performance by the COMPANY.
  4. No Legal Representation and Release.
    1. ORIGINAL CLAIM HOLDER is informed of his, her or its right to be represented by legal counsel, at his, her or its own expense, in connection with entering into this Agreement and his, her or its interactions with the COMPANY and understands that neither the COMPANY nor its counsel is representing the interests of ORIGINAL CLAIM HOLDER or is or will be providing any legal or other advice to the ORIGINAL CLAIM HOLDER. ORIGINAL CLAIM HOLDER acknowledges that the COMPANY’s interests may differ from, or be adverse to, ORIGINAL CLAIM HOLDER’s interests, including with respect to decisions the COMPANY may make regarding other claims similar to the ORIGINAL CLAIM(S) and whether and how to pursue such claims and/or the ORIGINAL CLAIM(S). To the extent ORIGINAL CLAIM HOLDER has engaged counsel with respect to the ORIGINAL CLAIM(S), ORIGINAL CLAIM HOLDER (i) has informed such counsel of the transactions contemplated hereby and has proceeded based on the advice of such counsel and (ii) has or will terminate promptly after the date hereof such counsel’s representation and pay any and all unpaid legal fees and obtain the release of any claims of such counsel for recovery with respect to the ORIGINAL CLAIM(S).
    2. ORIGINAL CLAIM HOLDER acknowledges and agrees that evidence provided or that will be provided to the COMPANY hereunder may be used by the COMPANY and its agents and representatives to pursue the ORIGINAL CLAIM(S), including in court in pursuit of the ORIGINAL CLAIM(S), and may therefore become publicly available. ORIGINAL CLAIM HOLDER hereby provides the COMPANY with a non-exclusive, worldwide, perpetual, royalty-free, sublicensable right to use such evidence in pursuit of the ORIGINAL CLAIM(S) and releases, in advance, all claims against the COMPANY, its affiliates and its and their respective agents and representatives with respect thereto.
  5. Confidentiality. ORIGINAL CLAIM HOLDER agrees to treat all information received in connection with this Agreement that is legally privileged or otherwise subject to the protection of the work product doctrine or similar protection (which will be marked as or indicated to be so privileged or protected) strictly confidentially, and ORIGINAL CLAIM HOLDER will not disclose any such information to any person or entity, except that ORIGINAL CLAIM HOLDER may disclose any such information (i) to the extent permitted by the COMPANY in writing or (ii) to any person or entity to the extent the law or legal process (e.g., subpoena) requires disclosure by ORIGINAL CLAIM HOLDER; provided that in the case of clause (ii), ORIGINAL CLAIM HOLDER shall first give the COMPANY prompt written notice of any such requirement, disclose no more information than is so required, and cooperate fully with any efforts by the COMPANY to obtain a protective order or similar confidentiality treatment for such information.
  6. Representations, Warranties and Covenants of Original Claimholder. ORIGINAL CLAIM HOLDER hereby represents, warrants and covenants to the COMPANY that:
    1. If a natural person, he or she has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby, or if an entity, it is duly organized and validly existing under the laws of its jurisdiction of organization, it has all power and authority to execute, deliver and perform this Agreement and the individual signing this Agreement on its behalf has all the power and authority to execute and deliver this Agreement on its behalf;
    2. The ORIGINAL CLAIM(S) identified and submitted on the CirclesX platform are claims for HARM at or related to the PROPERTY arising from or related to the Winter Storm;
    3. He, she or it is the ORIGINAL CLAIM HOLDER with ORIGINAL CLAIM(S);
    4. He, she or it has created an account on the CirclesX platform and has agreed to the software license agreement for the use of such platform;
    5. This Agreement has been duly and validly executed and delivered by he, she or it and constitutes a valid and legally binding obligation of he, she or it, enforceable against ORGINAL CLAIM HOLDER in accordance with its terms;
    6. The execution, delivery and performance by ORIGINAL CLAIM HOLDER of this Agreement do not and will not (i) violate any applicable law, (ii) result in the violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation, any contract to which it is a party, or (iii) require the consent of any third party;
    7. He, she or it has reviewed and understand the contents of the application, including the definition of ORIGINAL CLAIM(S) and TDTPA CLAIMS;
    8. He, she or it is has sole, good, valid and marketable title to, the ORIGINAL CLAIM(S), free and all liens and encumbrances (including any attorney’s liens, legal or equitable claims, subrogation, security interests, participations, setoffs, encumbrances or adverse claims against title of any kind or nature whatsoever), and no other person has any right or interest in the ORIGINAL CLAIM(S);
    9. He, she or it has not filed and will not file an insurance claim with respect to the losses or damages incurred as a result of the ORIGINAL CLAIM(S), or, if such a claim was previously filed, such claim (i) has been finally rejected in part or in full by the ORIGINAL CLAIM HOLDER’s insurance company, there is no pending challenge with respect to such determination and the ORIGINAL CLAIM(S) represent claims for HARM that was not reimbursed by insurance (including loss of any deductible amounts) or (ii) has been withdrawn or waived by the insured party;
    10. He, she or it has not filed a lawsuit or joined a lawsuit against any person with respect to the ORIGINAL CLAIM(S);
    11. The ORIGINAL CLAIM(S) are freely transferrable by the ORIGINAL CLAIM HOLDER to the COMPANY;
    12. ORIGINAL CLAIM HOLDER has not assigned, waived, released, transferred, sold, pledged as collateral or otherwise encumbered or relinquished any interest or right in the ORIGINAL CLAIM(S), constructively or otherwise;
    13. To the extent ORIGINAL CLAIM HOLDER is married, he or she has obtained the written, informed consent of his or her spouse with respect to the transactions contemplated hereby;
    14. He, she or it has not transferred to any person any right to receive any proceeds relating to the ORIGINAL CLAIM(S) or granted any lien or encumbrance in respect of the right to receive any such proceeds to any person (including any attorney representing or purporting to represent ORIGINAL CLAIM HOLDER);
    15. He, she or it is not subject to any requirement to pay over, including without limitation by priority claim, garnishment or contract, to any other person any proceeds of the ORIGINAL CLAIM(S);
    16. There is no material information known by ORIGINAL CLAIM HOLDER necessary to pursue the ORIGINAL CLAIM(S) that has not been provided, or will not upon the request of the COMPANY, be provided to the COMPANY;
    17. ORIGINAL CLAIM HOLDER has not and will not take any action inconsistent with the foregoing or that would, if taken, render the foregoing untrue (including by executing any contracts or instruments in conflict herewith); and
    18. ORIGINAL CLAIM HOLDER acknowledges that the COMPANY may have, and later may come into possession of, information relating to the ORIGINAL CLAIM(S) that is not known to ORIGINAL CLAIM HOLDER and that may be material to a decision to buy or sell the ORIGINAL CLAIM(S) and (the “Excluded Information”), ORIGINAL CLAIM HOLDER has agreed to proceed with the sale of the ORIGINAL CLAIM(S) without receiving the Excluded Information; and the COMPANY is assuming no liability to ORIGINAL CLAIM HOLDER, and ORIGINAL CLAIM HOLDER waives and releases any claims that he, she or it might have against the COMPANY or its officers, directors, employees, attorneys, agents and controlling Persons and their respective successors, assigns, heirs and personal representatives, whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Excluded Information.
  7. Arbitration.
    1. Any claim or controversy arising out of or relating to this Agreement, or the breach thereof, shall be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Claims shall be heard by an independent arbitrator selected by the COMPANY.
    2. The place of arbitration shall be Houston, Texas. The arbitration shall be governed by the laws of the State of Texas. Time is of the essence for any arbitration under this Agreement. The merits hearings shall take place within one hundred and fifty (150) days of the filing of the request for arbitration with the AAA and a final award must be rendered within one hundred eighty (180) days of such filing. Arbitrators shall agree to these limits prior to accepting appointment. Each party shall bear its own costs and expenses (including attorneys’ fees) and an equal share of the arbitrators’ and administrative fees of arbitration, except that the arbitration panel may, in its discretion, award costs to the prevailing party, including such arbitrators’ administrative fees.  Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties; provided that, no such disclosure shall be made in connection with litigation except in compliance with a court order.
    3. To enforce any arbitration award issued pursuant to Section 7(b) or to seek specific performance pursuant to Section 7(f), the parties acknowledge and agree that the place of exclusive jurisdiction is the United States District Court for the Southern District of Texas located in Houston, Texas (and, solely to the extent such court does not have subject matter jurisdiction, the courts of the State of Texas located in Houston, Texas).
    4. This Agreement and any disputes or actions (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, any related agreement, or the execution, performance, non-performance, interpretation, termination or construction of this Agreement shall be governed by and construed and enforced in accordance with the laws of the [State of Texas] without giving effect to any principles of conflict or choice of law to the extent such principles would require or permit the application of laws of another jurisdiction.
    5. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
    6. ORIGINAL CLAIM HOLDER acknowledges and agrees that, in the event any of the provisions of this Agreement contemplated to be performed following the date hereof are not performed in accordance with their specific terms or otherwise are breached or violated, the COMPANY would be damaged irreparably, no adequate remedy at law would exist, and damages would be impossible to determine. Accordingly, ORIGINAL CLAIM HOLDER agrees that, without posting a bond or other undertaking, the COMPANY will be entitled to an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof and thereof in any action instituted in any court of the United States or any state thereof having jurisdiction over such parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity.  ORIGINAL CLAIM HOLDER further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert the defense that a remedy at law would be adequate.
    7. The parties agree that each party may bring disputes against the other party only in an individual capacity and not on a class, collective action, or representative basis. All parties to this Agreement are waiving the right to pursue or have a dispute resolved as a plaintiff or class member in any purported class, collective or representative proceeding. Any arbitrator of a dispute involving this Agreement shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis and shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis.
  8. Right to Set Off. In order to satisfy the obligations pursuant to this Agreement of ORIGINAL CLAIM HOLDER, including for breach of this Agreement, the COMPANY shall have the right to off-set or set-off any payment due pursuant to the ORIGINAL CLAIM HOLDER pursuant to Section 2(a) of this Agreement or otherwise against any HARM to the COMPANY or the ORIGINAL CLAIM(S) (including without limitation the value thereof or the proceeds receivable or recoverable by the COMPANY with respect thereto) resulting from a breach of this Agreement by ORIGINAL CLAIM HOLDER (with the amount of such liability determined by the COMPANY in its sole discretion).  In the case of any amounts subject to set-off pursuant to this Section 8 that have not been finally determined in accordance with this Agreement, such offset amounts shall be held by the COMPANY in its bank account (or, if determined by the COMPANY in its sole discretion, the account of a third-party escrow agent or similar agent), without interest payable thereon, until there has been such a final determination with respect to such setoff amount, at which time the amounts in so held will be paid to the COMPANY or the ORIGINAL CLAIM HOLDER, as so determined
  9. Tax Matters.
    1. The COMPANY has not and will not provide any tax advice to ORIGINAL CLAIM HOLDER and ORIGINAL CLAIM HOLDER will not rely upon the COMPANY to provide any tax advice or tax information to ORIGINAL CLAIM HOLDER.
    2. ORIGINAL CLAIM HOLDER acknowledges that any amounts received by the ORIGINAL CLAIM HOLDER pursuant to Section 2(a) of this Agreement will be taxable income to ORIGINAL CLAIM HOLDER for U.S. federal and applicable state and local tax purposes unless an exception applies and that ORIGINAL CLAIM HOLDER has full and sole responsibility for properly reporting such income and paying all taxes due with respect to such income by such ORIGINAL CLAIM HOLDER and ORIGINAL CLAIM HOLDER covenants that he, she or it will fully comply with all such tax obligations.
    3. ORIGINAL CLAIM HOLDER further acknowledges that he, she or it may not receive any tax-related notifications or information reporting forms from the COMPANY.
    4. ORIGINAL CLAIM HOLDER acknowledges that he, she or it should consult with his, her or its own tax advisors regarding the tax consequences to ORIGINAL CLAIM HOLDER of entering into this Agreement and receiving or making any payments pursuant to this Agreement, including regarding the nature and timing of any income recognized by the ORIGINAL CLAIM HOLDER.
    5. ORIGINAL CLAIM HOLDER shall provide, as and when reasonably requested by the COMPANY or any claims administrator, trustee, paying agent or similar agent, a properly completed IRS Form W-9 or applicable Form W-8 and such other certifications, forms, or other information as may reasonably be requested for tax compliance and reporting purposes.
    6. ORIGINAL CLAIM HOLDER and the COMPANY agree that the transfer of the ORIGINAL CLAIM(S) pursuant to this Agreement is intended to be treated as a sale, and shall not take a position inconsistent with such treatment for any relevant tax purpose except to the extent required by applicable law.
  10. This Agreement may be terminated with immediate effect by the COMPANY upon notice to ORIGINAL CLAIM HOLDER in the event of (i) a breach of this Agreement in any material respect by ORIGINAL CLAIM HOLDER (subject to a 10-day cure period, if such breach is curable) or (ii) the filing of a petition of bankruptcy or other insolvency proceedings in respect of ORIGINAL CLAIM HOLDER.
  11. Miscellaneous
    1. This Agreement constitutes the sole and entire agreement of the ORIGINAL CLAIM HOLDER and the COMPANY with respect to the subject matter contained herein, and all inducements relied upon by either, and supersedes all other prior representations, warranties, understandings and agreements, both written and oral, with respect to such subject matter.
    2. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their successors and permitted assigns and, except as provided in Section 10i), nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefits, liabilities or remedies of any nature whatsoever under or by reason of this Agreement.
    3. No amendment of any provision of this Agreement shall be effective unless it is in writing and signed by the parties and no waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the affected party. No failure on the part of either party to exercise, and no delay in exercising, any right hereunder or under any related document shall operate as a waiver thereof by such party, nor shall any single or partial exercise of any right hereunder or under any other related document preclude any other or further exercise thereof or the exercise of any other right.
    4. ORIGINAL CLAIM HOLDER may not assign, sell or pledge its rights and obligations hereunder without the written consent of the COMPANY, and any assignment or deemed assignment without such consent shall be null and void ab initio.
    5. If any provision of this Agreement is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of its invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the invalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction; provided that the provisions of Section 2(b), 3, 4 and 6 as they relate to any representation, warranty or covenant of ORIGINAL CLAIM HOLDER shall not be severable from the other provisions of this Agreement.
    6. All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement, or the execution or performance of this Agreement, may be made only against the entities that are expressly identified as parties hereto. No person who is not a party to this Agreement, including any past, present or future director, officer, employee, incorporator, member, partner, stockholder, affiliate, family member, agent, attorney or representative of any named party to this Agreement or the other Transaction Documents (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity Party against its owners or affiliates or beneficiaries) for any obligations or liabilities arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of this Agreement or the execution hereof; and each Party waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third party beneficiaries of this provision of this Agreement.
     

      _____________________
    Date

    _____________________  
    ORIGINAL CLAIM HOLDER(S):  

    _____________________
      SPOUSE OF ORIGINAL CLAIM HOLDER(S) (IF APPLICABLE):

      ____________________  

    WITNESS:

      _____________________

    Date

      /Erik M Simpson/
    _____________________
    Signature: CirclesX