Member Representations. Each Member hereby represents and warrants to the Company as follows: (a) If the Member is a corporation, partnership, limited liability company, trust, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of this Agreement, and the person signing this Agreement on behalf of the Member has been duly authorized by the Member to do so; (b) If the Member is an individual, the Member is of legal age to execute this Agreement and is legally competent to do so; (c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member; (d) The execution, delivery and performance of this Agreement by the Member does not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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; (i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance on the private placement exemption from registration provided in Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions. (ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act. (iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units. (f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”); (g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser; (h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder; (i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof; (j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units; (k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in the Company and has availed itself of this opportunity to the full extent desired; (l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment; (m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates; (n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company; (o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units; (p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and (q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing of this Agreement. Without limiting the foregoing, each Member agrees to give the Company prompt written notice in the event that any representation of such Member contained in this Section 12.01 ceases to be true at any time following the Closing Date.
Appears in 3 contracts
Samples: Limited Liability Company Operating Agreement (El Pollo Loco Holdings, Inc.), Limited Liability Company Operating Agreement (EPL Intermediate, Inc.), Limited Liability Company Operating Agreement (EPL Intermediate, Inc.)
Member Representations. Each Member hereby represents represents, warrants and warrants to the Company as followscovenants that:
(a) If the Member is a corporation, partnership, limited liability company, trust, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of this Agreement, and the person signing this Agreement on behalf of the Such Member has been duly authorized by the Member all requisite power and authority to do so;
(b) If the Member is an individual, the Member is of legal age to execute enter into this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed perform such Member’s respective obligations hereunder and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the Member does not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance on the private placement exemption from registration provided in Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The such Member is an “accredited investor” within the meaning of Regulation D of (as defined in Rule 501 promulgated under the Securities ActAct of 1933, as amended from time to time).
(iiib) Each This Agreement has been duly and validly executed and delivered by such Member and is enforceable against it, in accordance with its terms, and the performance of such Member’s respective obligations hereunder shall not conflict or result in the violation of any agreement, lease, instrument, license, permit or other authorization applicable to such Member.
(Ac) directly Such Member acknowledges that the Company Interests are subject to transfer restrictions and consents.
(d) Such Member acknowledges that ownership of the Company Interests may involve tax consequences. Such Member confirms that it is not relying on any statements or indirectlyrepresentations of the Company, is acquiring the Membership Units in compliance Managers or any of their agents or legal counsel with all applicable laws, rules, regulations respect to the tax and other legal requirements includingeconomic considerations of the ownership of the Company Interests, without limitation, the legal requirements of jurisdictions in which and acknowledges that such Member may retain its own professional advisors to evaluate the United States federal, state and local tax and other economic considerations of an ownership of the Company Interests. Such Member also acknowledges that it is resident solely responsible for any of its own tax liability that may arise as a result of the ownership of the Company Interests or the transactions contemplated by this Agreement.
(e) Such Member acknowledges that the Managers and the Company will rely upon the representations, warranties and covenants contained in which such acquisition is being consummatedthis Agreement without making any independent investigation, and (B) has consulted with legal counsel that the representations, warranties and financial, accounting, regulatory agreements made by the Member shall survive the execution and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part delivery of the Membership Unitsthis Agreement.
(f) The Member understands that the Company has not been registered Except as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in the Company and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity expressly set forth in this investmentAgreement, has the ability to bear the economic risk of this investmentif applicable, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No no representations or warranties have been made to the Member with respect to by the investment in Managers, the Membership Units Company or any agent, employee or Affiliate of the Managers or the Company other than the representations set forth hereinCompany, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If entering into this Agreement, the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (relying on any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan information other than those Plans previously identified that which is the result of independent investigation by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing of this Agreement. Without limiting the foregoing, each Member agrees to give the Company prompt written notice in the event that any representation of such Member contained in this Section 12.01 ceases to be true at any time following the Closing DateMember.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (Ashford Hospitality Trust Inc), Limited Liability Company Operating Agreement (Ashford Hospitality Trust Inc)
Member Representations. Each Member severally and not jointly hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
(a) If The Units will be acquired for its own account (or for a separate account managed by such Member) for investment. It is not purchasing such securities with a view toward distribution in a manner which would require registration under the Securities Act of 1933, as amended (the “Securities Act”). Such Member recognizes that the Units have not been registered under the Securities Act, in reliance upon an exemption from such registration and agrees that it will not sell, offer for sale, Transfer, pledge or hypothecate its Units, in whole or in part (i) in the absence of an effective registration statement covering such Transfer, pledge or hypothecation, or if an exemption from registration is applicable, if reasonably requested by the Company, upon receipt by the Company of an opinion of counsel reasonably acceptable to the Company and its counsel, and (ii) except in compliance with all applicable provisions of this Agreement.
(b) Such Member’s authorization, execution, delivery, and performance of this Agreement and any related agreements do not conflict with any other agreement or arrangement to which that Member is a corporationparty or by which it is bound.
(c) Such Member has all requisite power and authority and, partnershipwith respect to Members who are individuals, limited liability companylegal capacity, trustto execute and deliver this Agreement, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of perform its obligations under this Agreement, and to consummate the person signing transactions contemplated by this Agreement on behalf of the Member has been duly authorized by the Member Agreement. With respect to do so;
(b) If the Member is an individualMembers which are not individuals, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the such Member does not have been duly authorized, and will not result in a breach of any of the terms, conditions no other entity or provisions of, stockholder action or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance proceeding on the private placement exemption from registration provided in Section 4(2) part of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act.
(iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units.
(f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term stockholders is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in authorize the Company execution, delivery and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing performance of this Agreement. Without limiting This Agreement has been duly executed and delivered by such Member and, assuming the foregoingdue execution of this Agreement by each of the other Members party hereto, each Member agrees to give the Company prompt written notice in the event that any representation this Agreement constitutes, a valid and binding obligation of such Member, enforceable against such Member contained in this Section 12.01 ceases accordance with its terms, except to the extent that such enforceability may be true at any time following subject to, and limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the Closing Dateenforcement of creditors’ rights generally, and general equitable principles.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Kadmon Holdings, LLC), Limited Liability Company Agreement (Kadmon Holdings, LLC)
Member Representations. Each Member hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
(a) If The Units have been or will be acquired for his, her or its own account (or for a separate account managed by such Member) for investment. He, she or it intends to hold such securities acquired indefinitely and he, she or it is not purchasing such securities with a view toward distribution in a manner which would require registration under the Securities Act of 1933, as amended (the “Securities Act”), and he, she or it does not presently have any reasons to anticipate any change in his, her or its circumstances or other particular occasion or event which would cause he, she or it to sell such securities for which he, she or it hereby acquires. Such Member recognizes that the Units have not been registered under the Securities Act, in reliance upon an exemption from such registration and agrees that he, she or it shall not Transfer or offer for Transfer his, her or its Units, in whole or in part (i) in the absence of an effective registration statement covering such Transfer, pledge or hypothecation, or if an exemption from registration is applicable, upon receipt by the Company of an opinion of counsel reasonably acceptable to the Company and his, her or its counsel, and (ii) except in compliance with all applicable provisions of this Agreement.
(b) Such Member’s authorization, execution, delivery and performance of this Agreement and any related agreements do not conflict with any other agreement or arrangement to which that Member is a corporationparty or by which he, partnershipshe or it is bound.
(c) Such Member has all requisite power and authority and, limited liability companywith respect to Members who are individuals, trustlegal capacity, estate to execute and deliver this Agreement, to perform his, her or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of its obligations under this Agreement, and to consummate the person signing transactions contemplated by this Agreement on behalf of the Member has been duly authorized by the Member Agreement. With respect to do so;
(b) If the Member is an individualMembers which are not individuals, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the such Member does not have been duly authorized and will not result in a breach approved by its board of any of the termsdirectors (or similar governing body), conditions and no other entity or provisions of, stockholder action or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance proceeding on the private placement exemption from registration provided in Section 4(2) part of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act.
(iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units.
(f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term stockholders is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in authorize the Company execution, delivery and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing performance of this Agreement. Without limiting This Agreement has been duly executed and delivered by such Member and, assuming the foregoingdue execution of this Agreement by each of the other Members party hereto, each Member agrees to give the Company prompt written notice in the event that any representation this Agreement constitutes a valid and binding obligation of such Member, enforceable against such Member contained in this Section 12.01 ceases accordance with its terms, except to the extent that such enforceability may be true at any time following subject to, and limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the Closing Dateenforcement of creditors’ rights generally, and general equitable principles.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Hollywood Media Corp)
Member Representations. Each Member hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
(a) If The Membership Interests will be acquired for his, her or its own account (or for a separate account managed by such Member) for investment. He, she or it intends to hold such securities acquired indefinitely and he, she or it is not purchasing such securities with a view toward distribution in a manner which would require registration under the Securities Act of 1933, as amended (the “Securities Act”), and he, she or it does not presently have any reasons to anticipate any change in his, her or its circumstances or other particular occasion or event which would cause he, she or it to sell such securities for which he, she or it hereby acquires. Such Member recognizes that the Membership Interests have not been registered under the Securities Act, in reliance upon an exemption from such registration and agrees that he, she or it will not sell, offer for sale, Transfer, pledge or hypothecate his, her or its Membership Interests, in whole or in part (i) in the absence of an effective registration statement covering such Transfer, pledge or hypothecation, or if an exemption from registration is applicable, upon receipt by the Company of an opinion of counsel reasonably acceptable to the Company and his, her or its counsel, and (ii) except in compliance with all applicable provisions of this Agreement.
(b) Such Member’s authorization, execution, delivery and performance of this Agreement and any related agreements do not conflict with any other agreement or arrangement to which that Member is a corporationparty or by which he, partnershipshe or it is bound.
(c) Such Member has all requisite power and authority and, limited liability companywith respect to Members who are individuals, trustlegal capacity, estate or other entityto execute and deliver this Agreement, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of perform its obligations under this Agreement, and to consummate the person signing transactions contemplated by this Agreement on behalf of the Member has been duly authorized by the Member Agreement. With respect to do so;
(b) If the Member is an individualMembers which are not individuals, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the such Member does not have been duly authorized and will not result in a breach approved by its board of any of the termsdirectors (or similar governing body), conditions and no other entity or provisions of, stockholder action or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance proceeding on the private placement exemption from registration provided in Section 4(2) part of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act.
(iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units.
(f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term stockholders is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in authorize the Company execution, delivery and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing performance of this Agreement. Without limiting This Agreement has been duly executed and delivered by such Member and, assuming the foregoingdue execution of this Agreement by each of the other Members party hereto, each Member agrees to give the Company prompt written notice in the event that any representation this Agreement constitutes a valid and binding obligation of such Member, enforceable against such Member contained in this Section 12.01 ceases accordance with its terms, except to the extent that such enforceability may be true at any time following subject to, and limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the Closing Dateenforcement of creditors’ rights generally, and general equitable principles.
Appears in 1 contract
Member Representations. Each Member hereby represents and warrants to the Company as follows:
(a) If the Member is a corporation, partnership, limited liability company, trust, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of this Agreement, and the person signing this Agreement on behalf of the Member has been duly authorized by the Member to do so;
(b) If the Member is an individual, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the Member does not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance on the private placement exemption from registration provided in Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act.
(iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units.
(f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in the Company and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing of this Agreement. Without limiting the foregoing, each Member agrees to give the Company prompt written notice in the event that any representation of such Member contained in this Section 12.01 ceases to be true at any time following the Closing Date.
Appears in 1 contract
Member Representations. Each Member hereby represents and warrants to the Company as follows:
(a) If the Member is a corporation, partnership, limited liability company, trust, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of this Agreement, and the person signing this Agreement on behalf of the Member has been duly authorized by the Member to do so;
(b) If the Member is an individual, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the Member does not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a 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 foregoing, 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;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance on the private placement exemption from registration provided in Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation D of the Securities Act.
(iii) Each Member (A) directly or indirectly, is acquiring the Membership Units in compliance with all applicable laws, rules, regulations and other legal requirements including, without limitation, the legal requirements of jurisdictions in which such Member is resident and in which such acquisition is being consummated, and (B) has consulted with legal counsel and financial, accounting, regulatory and tax advisors, as necessary, to ensure it is eligible to, directly or indirectly, acquire all or any part of the Membership Units.
(f) The Member understands that the Company has not been registered as an investment company under the Investment Company Act in reliance upon an exemption from such registration, it agrees that any Membership Units acquired by such Member may not be sold, offered for sale, Transferred, pledged, hypothecated or otherwise disposed of in any manner that would require the Company to register as an investment company under the Investment Company Act, and it represents and warrants that it is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act (a “Qualified Purchaser”);
(g) If the Member would be an “investment company” but for the exclusions from the Investment Company Act provided by Section 3(c)(1) or Section 3(c)(7) thereof, all direct and indirect beneficial owners of such Member’s outstanding securities (as such term is defined in the Investment Company Act) that acquired such securities on or before April 30, 1996 have consented to such Member’s treatment as a Qualified Purchaser;
(h) The Member agrees to deliver to the Managing Member such information as to certain matters under the Securities Act and the Investment Company Act as the Managing Member may reasonably request in order to ensure compliance with such Acts and the availability of any exemptions thereunder;
(i) The Member is acquiring Membership Units for the Member’s own account as principal for investment and not with a view to the distribution or sale thereof;
(j) The Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Membership Units;
(k) The Member has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of, and other matters pertaining to, this investment, and has had access to such financial and other information concerning the Company as it has considered necessary to make a decision to invest in the Company and has availed itself of this opportunity to the full extent desired;
(l) The Member has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of this investment;
(m) The Member acknowledges that neither the Company, the Managing Member nor any Affiliate thereof has rendered any investment advice or securities valuation advice to Member, and that the Member is neither subscribing for nor acquiring any interest in the Company in reliance upon, or with the expectation of, any such advice, or in reliance upon any materials prepared by the Managing Member or any of its Affiliates;
(n) No representations or warranties have been made to the Member with respect to the investment in the Membership Units or the Company other than the representations set forth herein, and the Member has not relied upon any representation or warranty not provided herein in making its investment in the Company;
(o) If the Member is a corporation, partnership, limited liability company, trust or other entity, it was not formed or recapitalized for the specific purpose of acquiring the Membership Units;
(p) Either (i) none of the funds that Member is using or will use to fund its purchase are assets of an employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section 4975(e)(14975(e)(l) of the Code, or an entity whose underlying assets include plan assets for purposes of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity collectively referred to as a “Plan”) or (ii)(x) some or all of the funds that the Member is using or will use to fund its purchase are assets of one or more Plans and (y) assuming that the Company is not a “party in interest” (within the meaning of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of Section 4975 of the Code) with respect to any Plan other than those Plans previously identified by the Company to the Member in writing, the purchase of the Membership Units by the Member does not and will not constitute or result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code; and
(q) The Member acknowledges that the Company has relied and will rely upon the representations and warranties of the Member set forth in this Agreement and that all such representations and warranties shall survive the date of signing of this Agreement. Without limiting the foregoing, each Member agrees to give the Company prompt written notice in the event that any representation of such Member contained in this Section 12.01 ceases to be true at any time following the Closing Date.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (EPL Intermediate, Inc.)
