Common use of Representations and Warranties of Members Clause in Contracts

Representations and Warranties of Members. Each Member hereby represents and warrants to the Company and to the other Members, severally but not jointly, as of the date of this Agreement (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(i) it is duly organized, validly existing and in good standing (to the extent that such concept, or the equivalent thereof, is recognized in the applicable jurisdiction) under the Laws of its jurisdiction of organization, (ii) it has all requisite power and authority under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, (iii) the execution and delivery by such Member of this Agreement and the performance of its obligations hereunder has been duly authorized and approved by all necessary corporate or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered by such Member and (v) this Agreement is the legal, valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that enforceability may be (A) limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) the Member is acquiring its Membership Interest for the Member’s own account as an investment and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Member agrees and acknowledges that any breach of this Section 3.02 by such Member shall be actionable by the Company or, if any other Member actually incurs any damages of any kind or nature resulting from such breach, by such other Member in its individual capacity.

Representations and Warranties of Members. Each Member hereby represents and warrants to and acknowledges with the Company that: (i) such Member has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (ii) such Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time; (iii) such Member is acquiring its Membership Interests for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (iv) the Membership Interests have not been registered under the securities laws of any jurisdiction, and cannot be Transferred unless they are subsequently registered or otherwise qualified under applicable securities laws (unless an exemption from such registration or other Members, severally but not jointly, as of qualification is available) and the date provisions of this Agreement governing Transfers of Membership Interests have been complied with; (or, in v) such Member is duly authorized to execute and deliver this Agreement (or the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(i) Joinder Agreement to which it is duly organized, validly existing and in good standing (to the extent that such concept, or the equivalent thereof, is recognized in the applicable jurisdictiona party) under the Laws of its jurisdiction of organization, (ii) it has all requisite power and authority under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, (iii) the execution and delivery by such Member of this Agreement and the performance of its obligations hereunder has been duly authorized and approved by all necessary corporate or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered by this Agreement (or such Member and Joinder Agreement, as the case may be); (vvi) this Agreement (and, if applicable, such Joinder Agreement) is the legal, a valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that the enforceability thereof may be (A) limited by any applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws affecting relating to the enforcement of creditors’ rights generally and (B) subject to by general principles of equity equity; (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (bvii) the Member is acquiring its Membership Interest for the Member’s own account as an investment execution, delivery and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Member agrees and acknowledges that any breach performance of this Section 3.02 Agreement (and, if applicable, Joinder Agreement) by such Member shall be actionable by does not conflict with, result in a violation or default under or result in any Person having the Company orright to terminate, if any other Member actually incurs any damages modify or require consent under (with or without notice, lapse of any kind time or nature resulting from such breach, by such other Member in its individual capacity.both) any

Representations and Warranties of Members. Each Member hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) that: (i) if such Member is a natural person, he or she has the Company capacity to execute and agree to this Agreement and to the other Membersperform its obligations hereunder, severally but (ii) if such Member is not jointlya natural person, as of the date of this Agreement (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(i) it is duly organized, validly existing and in good standing (to the extent that such concept, or the equivalent thereof, is recognized in the applicable jurisdiction) under the Laws laws of the state of its jurisdiction of organizationorganization and has full organizational power to, (ii) it has all requisite power execute and authority under applicable Law and its Charter Documents agree to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, ; (iii) the execution and delivery by such Member of this Agreement and the performance of its obligations hereunder has been duly authorized and approved by all necessary corporate or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered by such Member and (v) this Agreement is the legal, valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that enforceability may be (A) limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) the Member is acquiring or has acquired its Membership Interest Units for the Member’s own account as an investment and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Units; (iii) such Member agrees understands that the Units have not been registered under the Securities Act or any state securities law, and acknowledges that any breach may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the risks and merits of an investment in Holdings LLC and has had an opportunity to ask questions and request information concerning Holdings LLC; (v) such Member is able to bear the economic and financial risk of an investment in Holdings LLC for an indefinite period of time; (vi) such Member is either (a) an “accredited investor” or is “sophisticated” (as each such term is used in Regulation D under the Securities Act) or (b) a non-U.S. person (as such term is used in Regulation S under the Securities Act); (vi) the execution, delivery and performance of this Section 3.02 Agreement have been duly authorized by such Member shall be actionable by the Company or, if and do not require such Member to obtain any other Member actually incurs consent or approval that has not been obtained and do not contravene or result in a default under any damages provision of any kind law or nature resulting from regulation applicable to such breachMember or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound; and (vii) this Agreement is valid, by binding and enforceable against such other Member in accordance with its individual capacityterms.

Representations and Warranties of Members. Each Member and each other Person who acquires an Interest or Interest Equivalent in the Company hereby represents and warrants to the Company and to the other Members, severally but not jointly, as of the date of this Agreement that: (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(ii) it is duly organized, validly existing an "accredited investor" (as defined in Rule 501 under the Securities Act) and has such knowledge and experience in good standing (to financial and business matters and is capable of evaluating the extent that such concept, or the equivalent thereof, is recognized merits and risks of an investment in the applicable jurisdiction) under the Laws of its jurisdiction of organization, Company and making an informed investment decision with respect thereto; (ii) it has all requisite power is able to bear the economic and authority under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including financial risk of an investment in the funding obligations under Section 5.01 and Section 5.02, Company for an indefinite period of time; (iii) it is acquiring an Interest or Interest Equivalent for investment only and not with a view to, or for resale in connection with, any distribution to the execution public or public offering thereof; (iv) it understands and delivery by such Member acknowledges that the Interests and Interest Equivalents have not been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the provisions of this Agreement have been complied with; (v) the execution, delivery and the performance of its obligations hereunder has this Agreement have been duly authorized by such Person and approved by all necessary corporate do not require such Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Person or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered governing documents or any agreement or instrument to which such Person is a party or by which such Member Person is bound; and (vvi) this Agreement is the legalvalid, valid binding and binding obligation of such Member, enforceable against such Member Person in accordance with its terms, except as that the enforceability thereof may be (A) limited by any applicable general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws affecting the enforcement of creditors’ creditor's rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) the Member is acquiring its Membership Interest for the Member’s own account as an investment and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Member agrees and acknowledges that any breach of this Section 3.02 by such Member shall be actionable by the Company or, if any other Member actually incurs any damages of any kind or nature resulting from such breach, by such other Member in its individual capacityremedies generally.

Representations and Warranties of Members. Each Member and each other Person who acquires a Member Interest in the Company hereby represents and warrants to the Company and to the other Members, severally but not jointly, as of the date of this Agreement that: (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(ii) it is duly organized, validly existing an "accredited investor" (as defined in Rule 501 under the Securities Act) and has such knowledge and experience in good standing (to financial and business matters and is capable of evaluating the extent that such concept, or the equivalent thereof, is recognized merits and risks of an investment in the applicable jurisdiction) under the Laws of its jurisdiction of organization, Company and making an informed investment decision with respect thereto; (ii) it has all requisite power and authority is a "qualified purchaser" (as defined in Rule 2a51 under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, Investment Company Act); (iii) it is not a natural person; (iv) it is able to bear the execution economic and delivery by such financial risk of an investment in the Company for an indefinite period of time; (v) it is acquiring a Member Interest for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (vi) it understands and acknowledges that the Member Interests have not been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the provisions of this Agreement have been complied with; (vii) the execution, delivery and the performance of its obligations hereunder has this Agreement have been duly authorized by such Person and approved by all necessary corporate do not require such Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Person or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered governing documents or any agreement or instrument to which such Person is a party or by which such Member is bound; and (vviii) this Agreement is the legalvalid, valid binding and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that the enforceability thereof may be (A) limited by any applicable general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws affecting the enforcement of creditors’ creditor's rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) the Member is acquiring its Membership Interest for the Member’s own account as an investment and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Member agrees and acknowledges that any breach of this Section 3.02 by such Member shall be actionable by the Company or, if any other Member actually incurs any damages of any kind or nature resulting from such breach, by such other Member in its individual capacityremedies generally.

Representations and Warranties of Members. Each Member and each other Person who acquires a Member Interest in the Company hereby represents and warrants to the Company and to the other Members, severally but not jointly, as of the date of this Agreement that: (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(ii) it is duly organized, validly existing an “accredited investor” (as defined in Rule 501 under the Securities Act) and has such knowledge and experience in good standing (to financial and business matters and is capable of evaluating the extent that such concept, or the equivalent thereof, is recognized merits and risks of an investment in the applicable jurisdiction) under the Laws of its jurisdiction of organization, Company and making an informed investment decision with respect thereto; (ii) it has all requisite power and authority is a “qualified purchaser” (as defined in Rule 2a51 under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, Investment Company Act); (iii) it is not a natural person; (iv) it is able to bear the execution economic and delivery by such financial risk of an investment in the Company for an indefinite period of time; (v) it is acquiring a Member Interest for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (vi) it understands and acknowledges that the Member Interests have not been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the provisions of this Agreement have been complied with; (vii) the execution, delivery and the performance of its obligations hereunder has this Agreement have been duly authorized by such Person and approved by all necessary corporate do not require such Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Person or other action under applicable Law and its Charter Documents, (iv) this Agreement has been duly executed and delivered governing documents or any agreement or instrument to which such Person is a party or by which such Member is bound; and (vviii) this Agreement is the legalvalid, valid binding and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that the enforceability thereof may be (A) limited by any applicable general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws affecting the enforcement of creditors’ creditor’s rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) the Member is acquiring its Membership Interest for the Member’s own account as an investment and without an intent as of the date of such acquisition to distribute such Membership Interest. Each Member agrees and acknowledges that any breach of this Section 3.02 by such Member shall be actionable by the Company or, if any other Member actually incurs any damages of any kind or nature resulting from such breach, by such other Member in its individual capacityremedies generally.

Representations and Warranties of Members. Each Member hereby represents and warrants to the Company and acknowledges that: (i) such Member has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (ii) such Member has reviewed and evaluated all information necessary to assess the merits and risks of his, her or its investment in the Company and has had answered to its satisfaction any and all questions regarding such information; (iii) such Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time; (iv) such Member is acquiring Membership Interests in the Company for investment only and not with a view to, or for resale in connection with, any distribution to the other Members, severally but public or public offering thereof; (v) the Membership Interests in the Company have not jointly, as been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the date provisions of this Agreement have been complied with; (orvi) the execution, in the case delivery and performance of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(i) it is duly organized, validly existing and in good standing (to the extent that such concept, or the equivalent thereof, is recognized in the applicable jurisdiction) under the Laws of its jurisdiction of organization, (ii) it has all requisite power and authority under applicable Law and its Charter Documents to enter into this Agreement and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, (iii) the execution and delivery have been duly authorized by such Member and do not require such Member to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any law or regulation applicable to such Member or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound, and the Person executing this Agreement and the performance on behalf of its obligations hereunder such Member has been duly authorized and approved by all necessary corporate or other action under applicable Law and its Charter Documents, to do so; (ivvii) this Agreement the determination of such Member to invest in the Company has been duly executed and delivered 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, business, prospects or condition (vfinancial or otherwise) of the Company and its subsidiaries which may have been made or given by any other Member or by any Affiliate or agent of any other Member; 19 <PAGE> (viii) this Agreement is the legalvalid, valid binding and binding obligation of such Member, enforceable against such Member in accordance with its terms; (ix) if a Member is a partnership, except limited liability company or other entity classified as a partnership for federal income tax purposes, or a grantor trust (within the meaning of Sections 671-679 of the Code) or an S corporation (within the meaning of Section 1361 of the Code) (each, a "FLOW THROUGH ENTITY"), that enforceability may be either: (Aa) limited by any applicable bankruptcyno Person will own, insolvencydirectly or indirectly through one or more flow-through entities, reorganization, moratorium an interest in such Member where more than seventy percent (70%) of the value of the Person's interest in such Member is attributable to such Member's investment in the Company; or similar laws affecting the enforcement of creditors’ rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) if one or more Persons will own, directly or indirectly through one or more Flow-Through Entities, an interest in such Member where more than seventy percent (70%) of the value of the Person's interest in such Member is attributable to the Member's investment in the Company, neither the Member nor any such Person has or will have any intent or purpose of having such Person invest in the Company indirectly through Member in order to enable the Company to satisfy the 100-Member limitation in Treas. Reg. ss.1.7704-1(h) (the private placement safe harbor from publicly traded status); (x) unless such Member has notified the Board to the contrary, that such Member: (a) is a United States Person within the meaning of Section 7701 of the Code (i.e., is not any of the following (as defined in the Code): a nonresident alien individual, foreign partnership, foreign corporation, foreign estate, foreign trust, other foreign entity or organization, or grantor trust having a foreign person as an owner): (b) shall notify the Company within sixty (60) days of the date such Member ceases to be a United States Person; and (c) may be asked to recertify its non-foreign status at periodic intervals (and that this information may be disclosed to the Internal Revenue Service); (xi) if such Member will beneficially own ten percent (10%) or more of the Membership Interests in the Company, the Member is acquiring its Membership Interest not an "investment company" as defined in the Investment Company Act nor is the Member itself relying on Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act as an exemption from classification as an "investment company;" and (xii) such Member is not holding and, for the Member’s own account as an investment and without an intent as term of the date Company, will not hold "plan assets," as that term is defined in the Employee Retirement Income Security Act of such acquisition to distribute such Membership Interest. Each Member agrees 1974, as amended ("ERISA"), or the rules and acknowledges that any breach regulations promulgated thereunder, including, without limitation, the Department of this Labor Regulations Section 3.02 by such Member shall be actionable by 2510.3-101 (the "PLAN ASSET REGULATIONS"), and, consequently, the administration and management of the Company orand the investment of the Company's assets are not, if any other Member actually incurs any damages and will not be, subject to the fiduciary duty requirements of any kind or nature resulting from such breach, by such other Member in its individual capacity.ERISA. SECTION 3.3

Representations and Warranties of Members. Each Member hereby By execution and delivery of this Agreement, each of the Members represents and warrants to the Company and to the other Members, severally but not jointly, as of the date of this Agreement (or, in the case of an Additional Member, as of the date of the applicable Adoption Agreement), that (a)(i) it is duly organized, validly existing and in good standing (to the extent that such conceptMember (a) is authorized, or the equivalent thereof, is recognized in the applicable jurisdiction) under the Laws of its jurisdiction of organization, (ii) it and has all requisite power and authority authority, under applicable Law such Member’s charter and its Charter Documents to enter into this Agreement by-laws or other articles or agreements of organization and to perform its obligations hereunder, including the funding obligations under Section 5.01 and Section 5.02, (iii) Laws of the execution and delivery by jurisdiction where such Member of this Agreement and the performance of its obligations hereunder has been duly authorized and approved by all necessary corporate is incorporated or other action under applicable Law and its Charter Documentsotherwise organized, (iv) to become a Member, that this Agreement has been duly and validly executed and delivered by such Member and (v) that this Agreement is the legal, constitutes a valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as that enforceability may be (A) limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (B) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and (b) is able and is prepared to bear the Member economic risk of making the Capital Contributions contemplated hereby with respect to such Member’s Membership Interests and the holding by the Company of its assets and properties as contemplated hereby and to suffer any loss up to the amount of such Member’s liability in connection with the investment by the Company in such assets and properties, (c) is acquiring its Membership Interest Interests solely for the such Member’s own account for investment and with no present intention of distributing or reselling all or any part thereof, (d) has sufficient knowledge and experience in financial and business matters so that such Member is capable of evaluating, and such Member has evaluated, the risks of making the Capital Contribution hereby contemplated and the risks of the investment in the Company as contemplated hereby, (e) understands that this Agreement limits such Member’s ability to withdraw, transfer or dispose of its Membership Interests, (f) has carefully considered and has, to the extent such Member believes such discussion necessary, discussed with legal, regulatory, tax, accounting and financial advisers and other advisers, the Group Companies’ business plans, financing needs, technology and operations as well as the suitability of an investment in the Company for such Member’s particular tax and without an intent as financial situation and has determined that making the Capital Contributions and acquiring the Membership Interests are a suitable investment for such Member, (g) has had the opportunity to conduct its own review of the date of such acquisition to distribute such Membership Interest. Each Company’s business prospects and arrangements, has been provided all materials the Member agrees and acknowledges that any breach of this Section 3.02 by such Member shall be actionable by requested from the Company orregarding its business, if has been provided access to ask questions of and receive answers from the Company’s management in the course of its due diligence review of the Company, has received answers to all such questions presented to the Company’s management and has completed its due diligence review, (h) is relying solely upon such Member’s own due diligence review, an in reliance solely upon such independent review, has decided to make the Capital Contributions and acquire the Membership Interests contemplated hereby, and (i) has not relied upon any representation by, or other information (whether oral or written) from the Company, any Manager, any other Member actually incurs Member, any damages other Group Company or any Affiliate or Representative of any kind or nature resulting from such breach, by such other Member in its individual capacityof the foregoing persons.