Common use of Member Representations and Warranties Clause in Contracts

Member Representations and Warranties. By executing this Agreement, each Member represents and warrants to the Company and acknowledges that, as of the date of such Member’s execution of this Agreement or a Joinder Agreement and as of the date that any Additional Member is admitted as a Member of the Company, and as of any subsequent date on which any Member makes a Capital Contribution to the Company: (a) such Member has such knowledge and experience in financial and business matters and that such Member is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (b) such Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time and understands that such Member has no right (other than as specifically set forth in this Agreement) to resign or have its Units repurchased by the Company; (c) such Member is acquiring any Units in the Company for such Member’s own account, for investment purposes only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (d) such Member understands that (i) the Units have not been registered with the U.S. Securities and Exchange Commission under the Securities Act, in reliance upon one or more exemptions from the registration requirements of the Securities Act, (ii) any Transfer of such Units is subject to compliance with, or the availability of exemptions from, the registration and qualification requirements of the Securities Act and any applicable state securities Laws, and (iii) the Transfer of such Units are subject to restrictions on Transfer, purchase options, forfeiture and other obligations and limitations as set forth in this Agreement; and (e) the execution, delivery and performance of this Agreement by such Member, if applicable, (i) have been duly authorized by all necessary corporate or other action, (ii) do not require such Member to obtain any consent or approval that has not been obtained and, (iii) do not contravene or result in a default under any provision of any existing Law applicable to such Member or any provision of such Member’s charter, by-laws or other governing documents (if applicable) or any agreement or instrument to which such Member is a party or by which such Member is bound, except, in each case of clauses (ii) and (iii), as would not reasonably be expected to have a material adverse effect on such Member. In addition, by executing this Agreement or a Joinder Agreement, each Covered Member represents and warrants to the Company and acknowledges that, as of the date such Covered Member is admitted as a Member, and as of any subsequent date on which any Covered Member makes a Capital Contribution to the Company: (x) none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i) through (viii) promulgated under the Securities Act (each, a “Disqualification Event”) is applicable to such Covered Member or any of such Covered Member’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable, and (y) to such Person’s knowledge, none of the Disqualification Events is applicable to such Covered Member’s initial designee named in Section 5.2(a), if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable.

Member Representations and Warranties. By executing this Agreement, each Each Member represents and warrants to the Company that: (i) such Member (and acknowledges that, as each holder of the date voting securities of such Member’s execution of this Agreement or a Joinder Agreement and as of the date that any Additional Member is admitted as a Member of the Company, and as of any subsequent date on which any Member makes a Capital Contribution to the Company: (a) such Member has such knowledge and experience in financial and business matters and extent that such Member is capable may be deemed to have been formed for the purpose of evaluating the merits and risks of an investment investing in the Company) is (A) an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act and (B) a “qualified purchaser”, as that term is defined under the Investment Company and making an informed investment decision with respect theretoAct; (bii) such Member is able to bear the economic not a “Benefit Plan Investor”, as that term is defined under Section 3(42) of ERISA and financial risk of an investment in the Company for an indefinite period of time and understands that such Member has no right (other than as specifically set forth in this Agreement) to resign or have its Units repurchased by the Companyany regulations promulgated thereunder; (ciii) such Member is acquiring any Units duly incorporated or formed, as applicable, and is validly existing in the Company for such Member’s own accountgood standing as a corporation or limited liability company, for investment purposes only and not with a view toas applicable, or for resale in connection with, any distribution to the public or public offering thereof; (d) such Member understands that (i) the Units have not been registered with the U.S. Securities and Exchange Commission under the Securities Act, in reliance upon one or more exemptions from the registration requirements laws of the Securities Act, (ii) any Transfer State of such Units is subject Delaware and possesses all requisite power and authority necessary to compliance with, or carry out the availability of exemptions from, the registration and qualification requirements of the Securities Act and any applicable state securities Laws, and (iii) the Transfer of such Units are subject to restrictions on Transfer, purchase options, forfeiture and other its obligations and limitations as set forth in under this Agreement; and (eiv) the execution, execution and delivery and performance of this Agreement by such Member, if applicableand the performance by such Member of its obligations hereunder, (i) have been duly authorized by all necessary corporate or other limited liability company action, as applicable, and upon execution and delivery by each of the other parties hereto, this Agreement will be a legal, valid and binding agreement of such Member, enforceable against such Member in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (iiregardless of whether enforcement is sought in a proceeding at law or in equity); and (v) do not require any capital contributions made by such Member to obtain any consent or approval that has not been obtained and, (iii) do not contravene or result in a default under any provision of any existing Law applicable to such Member or any provision of such Member’s charter, by-laws or other governing documents (if applicable) or any agreement or instrument to which such Member is a party or by which such Member is bound, except, in each case of clauses (ii) and (iii), as would not reasonably be expected to have a material adverse effect on such Member. In addition, by executing this Agreement or a Joinder Agreement, each Covered Member represents and warrants to the Company and acknowledges that, as of the date such Covered Member is admitted as a Member, and as of any subsequent date on which any Covered Member makes a Capital Contribution to the Company: (x) none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i) through (viii) promulgated under the Securities Act (each, a “Disqualification Event”) is shall not directly or indirectly be derived from activities that may contravene applicable to such Covered Member or any of such Covered Member’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable, and (y) to such Person’s knowledge, none of the Disqualification Events is applicable to such Covered Member’s initial designee named in Section 5.2(a), if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicableInvestor Laws.

Member Representations and Warranties. By executing this Agreement, each Each Member ------------------------------------- hereby represents and warrants to the Company and acknowledges that, as of the date of such Member’s execution of this Agreement or a Joinder Agreement and as of the date that any Additional Member is admitted as a Member of the Company, and as of any subsequent date on which any Member makes a Capital Contribution to the Company: (ai) such Member has such knowledge and experience in financial and business matters and that such Member is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (bii) such Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time and understands that such Member has no right (other than as specifically set forth in this Agreement) to resign or have its Units repurchased by the Companytime; (ciii) such Member is acquiring any Units interests in the Company for such Member’s own account, for investment purposes only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (d) such Member understands that (iiv) the Units interests in the Company have not been registered with the U.S. Securities and Exchange Commission under the Securities Act, in reliance upon one or more exemptions from securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the registration requirements provisions of the Securities Act, this Agreement have been complied with; (ii) any Transfer of such Units is subject to compliance with, or the availability of exemptions from, the registration and qualification requirements of the Securities Act and any applicable state securities Laws, and (iii) the Transfer of such Units are subject to restrictions on Transfer, purchase options, forfeiture and other obligations and limitations as set forth in this Agreement; and (ev) the execution, delivery and performance of this Agreement by such Member, if applicable, (i) have been duly authorized by all necessary corporate or other action, (ii) such Member and do not require such Member to obtain any consent or approval that has not been obtained and, (iii) and do not contravene or result in a default under any provision of any existing Law law or regulation applicable to such Member or any provision of such Member’s charter, by-laws or other governing documents (if applicable) or any agreement or instrument to which such Member is a party or by which such Member is bound, except(vi) the determination of such Member to purchase interests in the Company has been made by such Member independent of any other Member and independent of any statements or opinions as to the advisability of such purchase or as to the properties, in each case business, prospects or condition (financial or otherwise) of clauses (ii) and (iii), as would not reasonably be expected to have a material adverse effect on such Member. In addition, by executing this Agreement or a Joinder Agreement, each Covered Member represents and warrants to the Company and acknowledges that, as of the date such Covered its Subsidiaries which may have been made or given by any other Member is admitted as a Member, and as or by any agent or employee of any subsequent date on which any Covered other Member makes a Capital Contribution to the Company: (x) none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i) through (viii) promulgated under the Securities Act (each, a “Disqualification Event”) is applicable to such Covered Member or any of such Covered Member’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable, and (yvii) to this Agreement is valid, binding and enforceable against such Person’s knowledge, none of the Disqualification Events is applicable to such Covered Member’s initial designee named Member in Section 5.2(a), if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicableaccordance with its terms.

Member Representations and Warranties. By executing this Agreement, each Each Member hereby represents and warrants warrants, severally and not jointly, to the Company and acknowledges thatto the other Member as follows: (a) The Member possesses all requisite capacity, as power and authority necessary to enter into this Agreement and to carry out the terms and provisions hereof and the transactions contemplated hereby. (b) The execution and delivery of this Agreement, and the performance by the Member of its obligations hereunder, have been duly authorized by the Board of Directors or other similar governing body of the date Member and upon due authorization, execution and delivery by the other parties, will constitute the valid and legally binding agreement of such the Member’s execution , enforceable in accordance with its terms against the Member, except as enforcement may be limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to creditors’ rights generally or (ii) the rules governing availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law. (c) The execution, delivery and performance of this Agreement or by the Member does not and will not result in a Joinder Agreement and as breach of any of the date that terms, conditions or provisions of, or constitute a default under, any Additional material indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, lease or other agreement, license, permit, franchise or certificate, to which the Member is admitted as a Member party or by which it is bound or to which any of its properties are subject, or require any authorization or approval under or pursuant to any of the Companyforegoing, or violate the Organizational Documents of the Member, or violate in any material respect any statute, regulation, law, order, writ, injunction or decree to which the Member is subject. (d) The Member understands that the Units have not been, and as of any subsequent date on which any Member makes a Capital Contribution New Units issued pursuant to this Agreement will not be (unless otherwise agreed by the parties), registered under the Securities Act and, if and to the Company: extent the Securities Act applies, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available and pursuant to registration or qualification (aor exemption therefrom) such under applicable state securities laws. The Member has such knowledge and experience in financial and business matters and that such Member it is capable of evaluating the Company and the merits and risks of an investment in the Company Units, and making an informed investment decision with respect thereto; (b) such the Member is able has the ability to bear the economic and financial risk of an its investment in the Company for an indefinite period of time and understands that such Units. The Member has no right (been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other than matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as specifically set forth in this Agreement) it has considered necessary to resign or have its Units repurchased by the Company; (c) such Member is acquiring any Units make a decision to invest in the Company for such Member’s own account, for investment purposes only and not with a view to, or for resale in connection with, any distribution has availed itself of this opportunity to the public or public offering thereof; (d) such Member understands that (i) full extent desired. Notwithstanding the Units have not been registered with foregoing, nothing herein shall affect the U.S. Securities representations and Exchange Commission under the Securities Act, in reliance upon one or more exemptions from the registration requirements warranties of the Securities Act, (ii) any Transfer of such Units is subject to compliance with, Company or Cinergy in the availability of exemptions from, the registration and qualification requirements of the Securities Act and any applicable state securities Laws, and (iii) the Transfer of such Units are subject to restrictions on Transfer, purchase options, forfeiture and other obligations and limitations as set forth in this Investment Agreement; and (e) the execution, delivery and performance of this Agreement by such Member, if applicable, (i) have been duly authorized by all necessary corporate or other action, (ii) do not require such Member to obtain any consent or approval that has not been obtained and, (iii) do not contravene or result in a default under any provision of any existing Law applicable to such Member or any provision of such Member’s charter, by-laws or other governing documents (if applicable) or any agreement or instrument to which such Member is a party or by which such Member is bound, except, in each case of clauses (ii) and (iii), as would not reasonably be expected to have a material adverse effect on such Member. In addition, by executing this Agreement or a Joinder Agreement, each Covered Member represents and warrants to the Company and acknowledges that, as of the date such Covered Member is admitted as a Member, and as of any subsequent date on which any Covered Member makes a Capital Contribution to the Company: (x) none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i) through (viii) promulgated under the Securities Act (each, a “Disqualification Event”) is applicable to such Covered Member or any of such Covered Member’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable, and (y) to such Person’s knowledge, none of the Disqualification Events is applicable to such Covered Member’s initial designee named in Section 5.2(a), if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii), (d)(2)(iii) or (d)(3) is applicable.