Representations and Warranties of the Members. Each Member, severally and not jointly, represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Member is a party or by which any property or asset of such Member is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreement.
Appears in 6 contracts
Samples: Exchange Agreement (Allvue Systems Holdings, Inc.), Exchange Agreement, Exchange Agreement (AdaptHealth Corp.)
Representations and Warranties of the Members. Each Member, severally and not jointly, represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally generally, and (v) the execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation of the certificate Certificate of incorporation, bylaws Incorporation and Bylaws or other organizational documents of such Member, Member or (B) conflict with, or constitute a default (or an event that which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Member member is a party or by which any property or asset of such Member is bound or affectedparty, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause clauses (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations violations, that would not in any material respect result in the unenforceability against such Member of this Agreement.
Appears in 5 contracts
Samples: Exchange Agreement, Exchange Agreement (Malibu Boats, Inc.), Exchange Agreement (Malibu Boats, Inc.)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and shall be true and correct at all times:
(ia) if it is not a natural person, that it such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions by the board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member have been duly taken;
(b) such Member has duly executed and delivered this Agreement, the Registration Rights Agreement, and the consummation by other documents that this Agreement contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member, enforceable against such Member in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, or similar Laws of general application and by the transactions contemplated hereby effect of general principles of equity, regardless of whether considered at law or in equity); and
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions or provisions of incorporation, bylaws or other (A) the organizational and governing documents of such Member, (B) conflict with, any material contract or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument material agreement to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulationLaw, order, judgment judgment, decree, writ, injunction, or decree applicable arbitral award to which such Member, except with respect to clause (B) Member is subject; or (Cii) for require any conflictsconsent, defaultsapproval, accelerationsor authorization from, terminationsfiling or registration with, cancellations or violations that would not in notice to, any material respect result in the unenforceability against Governmental Authority or other Person, unless such Member of this Agreementrequirement has already been satisfied.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP), Contribution Agreement (NextEra Energy Partners, LP), Limited Liability Company Agreement (NextEra Energy Partners, LP)
Representations and Warranties of the Members. Each MemberMember (as to himself, severally and not jointly, herself or itself only) represents and warrants that to the Company and each other Member that, as of the time such Member becomes a party to this Agreement:
(ia) if it he or she is not a natural person, that or it is a corporation duly incorporated or formed andorganized, to the extent such concept exists in its jurisdiction of organization, is validly existing and in good standing under the laws of such jurisdictionthe state of its incorporation, (ii) or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of its state of formation, as the case may be, it has all requisite legal capacity full power and authority to enter into execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if and the execution, delivery and performance by it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate corporate, partnership or other entity action on limited liability company action, as the part of case may be;
(b) this Agreement (or the separate joinder agreement, in the form attached hereto as Exhibit B, executed by such Member) has been duly and validly executed and delivered by such Member, (iv) and this Agreement (or such joinder, assuming the due execution hereof or thereof by the Company) constitutes a legal, valid legal and binding obligation of such Member Member, enforceable against it such Member in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and ; and
(vc) the execution, delivery and performance by such Member of this Agreement by such Member (or any joinder to this Agreement, if applicable, in the form attached hereto as Exhibit B) and the consummation by such Member of the transactions contemplated hereby (and thereby, if applicable) will not (A) if it is not a natural personnot, result in a violation with or without the giving of the certificate notice or lapse of incorporationtime, bylaws or other organizational documents of such Memberboth, (Bi) violate any provision of law, statute, rule or regulation to which such Member is subject, (ii) violate any order, judgment or decree applicable to such Member or (iii) conflict with, or constitute result in a breach or default (or an event that with notice or lapse of time or both would become a default) under, any term or give to others condition of any rights of termination, amendment, acceleration agreement or cancellation of, any agreement, indenture or other instrument to which such Member is a party or by which any property or asset of such Member is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreementbound.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Black Knight, Inc.), Limited Liability Company Agreement (Black Knight, Inc.)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member (as to himself or itself only) represents and warrants that to the Company and each other Member that, as of the time such Member becomes a party to this Agreement:
(ia) if it he or she is not a natural person, that or it is a corporation duly incorporated or formed andorganized, to the extent such concept exists in its jurisdiction of organization, is validly existing and in good standing under the laws of such jurisdictionthe state of its incorporation, (ii) or it is a trust, limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of its state of formation, as the case may be, it has all requisite legal capacity full power and authority to enter into execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if and the execution, delivery and performance by it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate corporate, partnership or other entity action on limited liability company action, as the part of case may be;
(b) this Agreement (or the separate joinder agreement, in the form attached hereto as Exhibit A, executed by such Member) has been duly and validly executed and delivered by such Member, (iv) and this Agreement (or such joinder, assuming the due execution hereof or thereof by the Company) constitutes a legal, valid legal and binding obligation of such Member Member, enforceable against it such Member in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and ; and
(vc) the execution, delivery and performance by such Member of this Agreement by such Member (or any joinder to this Agreement, if applicable, in the form attached hereto as Exhibit A) and the consummation by such Member of the transactions contemplated hereby (and thereby, if applicable) will not (A) if it is not a natural personnot, result in a violation with or without the giving of the certificate notice or lapse of incorporationtime, bylaws or other organizational documents of such Memberboth, (Bi) violate any provision of law, statute, rule or regulation to which such Member is subject, (ii) violate any order, judgment or decree applicable to such Member or (iii) conflict with, or constitute result in a breach or default (or an event that with notice or lapse of time or both would become a default) under, any term or give to others condition of any rights of termination, amendment, acceleration agreement or cancellation of, any agreement, indenture or other instrument to which such Member is a party or by which any property or asset of such Member is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreementbound.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (J. Alexander's Holdings, Inc.), Limited Liability Company Agreement (J. Alexander's Holdings, Inc.)
Representations and Warranties of the Members. Each MemberBy executing and delivering this Agreement, severally and not jointly, each Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the date hereof, as of the date such Member was admitted to the Company and as of the date(s) such Member was issued Units:
(ia) if it Such Member’s Units are being held for its own account solely for investment and not with a view to resale or distribution thereof other than in compliance with all applicable securities laws and this Agreement.
(b) If such Member is not an entity, such Member is duly organized and validly existing under the laws of its jurisdiction of organization. If such Member is a natural person, that it is duly incorporated or formed andsuch Member has full legal capacity.
(c) The execution, to the extent delivery and performance by such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery Member of this Agreement by it and the consummation of the transactions contemplated hereby are within such Member’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other entity action on the part of its behalf (or, if such Member is an individual, are within such Member’s legal right, (iv) this Agreement constitutes a legalpower and capacity), valid and binding obligation of such Member enforceable against it require no consent, approval, permit, license, order or authorization of, notice to, action by or in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratoriumrespect of, or similar laws relating to or limiting creditors’ rights generally filing with, any Governmental Authority, and (v) the execution, delivery do not and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation breach of any of the certificate of incorporationterms, bylaws conditions or other organizational documents of such Member, (B) conflict withprovisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any provision of applicable law or give to others of any rights of terminationjudgment, amendmentorder, acceleration writ, injunction or cancellation of, decree or any agreement, indenture agreement or other instrument to which such Member is a party or by which such Member or any property or asset of such Member’s properties is bound. This Agreement has been duly executed and delivered by such Member is bound or affected, or (C) result in and constitutes a violation valid and binding agreement of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability enforceable against such Member in accordance with its terms, subject to the Enforceability Exceptions.
(d) Such Member is familiar with the business, financial condition, properties, operations and prospects of Holdco, its Subsidiaries and the Company, and has asked such questions of the Company and the Manager and conducted such due diligence concerning such matters and concerning the Class B Units, this Agreement and the Holdco Agreement as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction. Such Member has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Manager, the Company, Holdco or any of its Subsidiaries or any director, officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement. Such Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of holding Class B Units and being a Member. Such Member understands that owning Class B Units involves various risks, including the restrictions on transferability set forth in this Agreement, lack of any public market for such Class B Units, the risk of owning Class B Units for an indefinite period of time and the risk of losing its entire investment in the Company. Such Member is able to bear the economic risk of such investment; and such Member acknowledges that the Class B Units have not been registered under the Securities Act or any other applicable federal or state securities laws, and that the Company has no intention, and shall not have any obligation, to register or to obtain an exemption from registration for the Class B Units or to take action so as to permit sales pursuant to the Securities Act (including Rules 144 and 144A thereunder). Such Member has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company and holding Class B Units in light of its particular tax and financial situation, and has determined that the Class B Units are a suitable investment for such Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (EP Energy Corp), Limited Liability Company Agreement (EP Energy Corp)
Representations and Warranties of the Members. Each MemberMember (as to himself, severally and not jointly, herself or itself only) represents and warrants that to the Company and each other Member that, as of the time such Member becomes a party to this Agreement:
(ia) if it he or she is not a natural person, that or it is a corporation duly incorporated or formed andorganized, to the extent such concept exists in its jurisdiction of organization, is validly existing and in good standing under the laws of such jurisdictionthe state of its incorporation, (ii) or it is a trust, limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of its state of formation, as the case may be, it has all requisite legal capacity full power and authority to enter into execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if and the execution, delivery and performance by it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate corporate, partnership or other entity action on limited liability company action, as the part of case may be;
(b) this Agreement (or the separate joinder agreement, in the form attached hereto as Exhibit A, executed by such Member) has been duly and validly executed and delivered by such Member, (iv) and this Agreement (or such joinder, assuming the due execution hereof or thereof by the Company) constitutes a legal, valid legal and binding obligation of such Member Member, enforceable against it such Member in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and ; and
(vc) the execution, delivery and performance by such Member of this Agreement by such Member (or any joinder to this Agreement, if applicable, in the form attached hereto as Exhibit A) and the consummation by such Member of the transactions contemplated hereby (and thereby, if applicable) will not (A) if it is not a natural personnot, result in a violation with or without the giving of the certificate notice or lapse of incorporationtime, bylaws or other organizational documents of such Memberboth, (Bi) violate any provision of law, statute, rule or regulation to which such Member is subject, (ii) violate any order, judgment or decree applicable to such Member or (iii) conflict with, or constitute result in a breach or default (or an event that with notice or lapse of time or both would become a default) under, any term or give to others condition of any rights of termination, amendment, acceleration agreement or cancellation of, any agreement, indenture or other instrument to which such Member is a party or by which any property or asset of such Member is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreementbound.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Black Knight Financial Services, Inc.), Limited Liability Company Agreement (Black Knight Financial Services, Inc.)
Representations and Warranties of the Members. Each MemberBy executing and delivering this Agreement, severally and not jointly, each Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the date hereof, as of the date such Member was admitted to the Company and as of the date(s) such Member acquired Units and/or made a Capital Contribution:
(ia) if it Such Member’s Units are being held for its own account solely for investment and not with a view to resale or distribution thereof other than in compliance with all applicable securities laws and this Agreement.
(b) If such Member is not an entity, such Member is duly organized and validly existing under the laws of its jurisdiction of organization. If such Member is a natural person, that it is duly incorporated or formed andsuch Member has full legal capacity.
(c) The execution, to the extent delivery and performance by such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery Member of this Agreement by it and the consummation of the transactions contemplated hereby are within such Member’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other entity action on the part of its behalf (or, if such Member is an individual, are within such Member’s legal right, (iv) this Agreement constitutes a legalpower and capacity), valid and binding obligation of such Member enforceable against it require no consent, approval, permit, license, order or authorization of, notice to, action by or in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratoriumrespect of, or similar laws relating to or limiting creditors’ rights generally filing with, any Governmental Authority, and (v) the execution, delivery do not and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation breach of any of the certificate of incorporationterms, bylaws conditions or other organizational documents of such Member, (B) conflict withprovisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any provision of applicable law or give to others of any rights of terminationjudgment, amendmentorder, acceleration writ, injunction or cancellation of, decree or any agreement, indenture agreement or other instrument to which such Member is a party or by which such Member or any property of such Member’s properties is bound. This Agreement has been duly executed and delivered by such Member and constitutes a valid and binding agreement of such Member, enforceable against such Member in accordance with its terms, subject to the Enforceability Exceptions.
(d) Such Member is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act or asset of has disclosed in writing that such Member is bound or affectednot an accredited investor in a signed writing delivered to the Company. Such Member is familiar with the business, financial condition, properties, operations and prospects of Holdco, its Subsidiaries and the Company, and has asked such questions of the Company and the Manager and conducted such due diligence concerning such matters and concerning the Class A Units, this Agreement and the Holdco Agreement as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction. Such Member has not relied upon any representations made by, or other information (Cwhether oral or written) result furnished by or on behalf of, the Manager, the Company, Holdco or any of its Subsidiaries or any director, officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement. Such Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of holding Class A Units and being a violation Member. Such Member understands that owning Class A Units involves various risks, including the restrictions on transferability set forth in this Agreement, lack of any lawpublic market for such Class A Units, rulethe risk of owning Class A Units for an indefinite period of time and the risk of losing its entire investment in the Company. Such Member is able to bear the economic risk of such investment; and such Member acknowledges that the Class A Units have not been registered under the Securities Act or any other applicable federal or state securities laws, regulationand that the Company has no intention, orderand shall not have any obligation, judgment to register or decree applicable to obtain an exemption from registration for the Class A Units or to take action so as to permit sales pursuant to the Securities Act (including Rules 144 and 144A thereunder). Such Member has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company and holding Class A Units in light of its particular tax and financial situation, and has determined that the Class A Units are a suitable investment for such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (EP Energy Corp), Limited Liability Company Agreement (EP Energy Corp)
Representations and Warranties of the Members. Each Member, severally and not jointly, of the Members represents and warrants as of the Effective Date to each of the other Members and the Company as follows:
(a) The Shares being acquired by such Member are being purchased for such Member’s own account and not with a view to, or for sale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Such Member understands that (i) if it is such Shares have not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, is existing and in good standing been registered under the Securities Act or any state securities laws by reason of their contemplated issuance in transactions exempt from the registration and prospectus delivery requirements thereof and that the reliance of the Company and others upon such exemptions is predicated in part by the representations and warranties of such jurisdiction, Member contained in this Agreement.
(iib) it Such Member has all the requisite power and authority (whether corporate or otherwise) and legal capacity and authority to enter into and perform this Agreement into, and to consummate the transactions contemplated herebycarry out its obligations under, this Agreement.
(iiic) if it is not a natural person, the The execution and delivery by such Member of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation of by this Agreement have been duly authorized before the certificate of incorporation, bylaws or other organizational documents Effective Date by all necessary action on the part of such Member, .
(Bd) conflict withThis Agreement has been duly executed and delivered by such Member and constitutes a valid and binding obligation enforceable against such Member in accordance with its terms.
(e) Such Member is not subject to, or constitute a default (or an event that with notice or lapse of time or both would become a default) obligated under, or give to others any rights provision of termination, amendment, acceleration or cancellation of, (i) any agreement, indenture arrangement or instrument to which such Member is a party understanding, (ii) any license, franchise or by which any property or asset of such Member is bound or affected, permit or (Ciii) result in a violation of any law, rule, regulation, order, judgment or decree applicable to that would be breached or violated, or in respect of which a right of termination or acceleration or any encumbrance on any of such Member’s assets would be created, by such Member’s execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement, except with respect for such agreements as to clause which a Member has previously obtained the consent of the other party or parties thereto.
(Bf) No authorization, consent or (C) for approval of, waiver or exemption by, or filing or registration with, any conflictspublic body, defaultscourt, accelerationsthird party or authority is necessary on such Member’s part, terminations, cancellations or violations that would which has not in any material respect result in the unenforceability against previously been obtained by such Member for the consummation of the transactions contemplated by this Agreement.
(g) No Person has or will have, as a result of any act or omission by such Member any right, interest or valid claim against the Company or any other Member for any commission, fee or other compensation as a finder or broker, or in any similar capacity, in connection with the transactions contemplated by this Agreement.
(h) If such Member is or ever becomes an employee of the Company, such Member acknowledges and agrees that such Member’s ownership of Shares and status as a Member does not constitute an express or implied promise by the Company of continued employment and will not interfere in any way with the Company’s right to terminate such employment at any time.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Lorus Therapeutics Inc), Limited Liability Company Agreement (Lorus Therapeutics Inc)
Representations and Warranties of the Members. Each Member, severally and not jointly, represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, By the execution and delivery of this Agreement by it Agreement, each Member (severally and not jointly, as to itself) represents and warrants to, and agrees with, the Company and the consummation other Members that the following statements are true and correct as of the transactions contemplated hereby date hereof and will be true and correct as of each date on which such Member makes any additional Capital Contributions:
(a) Such Member’s Units are being acquired for its own account solely for investment and not with a view to resale or distribution thereof other than in compliance with all applicable securities Laws.
(b) If such Member is an entity, such Member is duly organized and validly existing under the Laws of its jurisdiction of organization.
(c) Such Member (i) has been found suitable to hold Units of the Company by all applicable Gaming Authorities in circumstances where such approval is required, (ii) has obtained all necessary Gaming Licenses, and (iii) is in compliance with all applicable Gaming Laws.
(d) The execution, delivery and performance by such Member of this Agreement are within such Member’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other entity action on the part of its behalf (or, if such Member is an individual, are within such Member’s legal right, power and capacity), require no consent, approval, permit, license, order or authorization of, notice to, action by or in respect of, or filing with, any Governmental Authority (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcyexpressly disclosed in writing to the Board of Managers prior to the date hereof), insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery do not and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation breach of any of the certificate of incorporationterms, bylaws conditions or other organizational documents of such Member, (B) conflict withprovisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any provision of applicable Law or give to others of any rights of terminationjudgment, amendmentorder, acceleration writ, injunction or cancellation of, decree or any agreement, indenture agreement or other instrument to which such Member is a party or by which such Member or any property or asset of such Member’s properties is bound. This Agreement has been duly executed and delivered by such Member is bound or affected, or (C) result in and constitutes a violation valid and binding agreement of any law, rule, regulation, order, judgment or decree applicable to such Member, except enforceable against such Member in accordance with its terms. Table of Contents
(e) Such Member acknowledges that the offering and sale of the Units have not been and will not be registered under the Securities Act, and are being made in reliance upon federal and state exemptions for transactions not involving a public offering. In furtherance thereof, such Member represents and warrants that it is an “accredited investor” (as defined in Regulation D promulgated under the Securities Act) and such Member has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the risks of its investment in the Units. Such Member agrees that it will not take any action that could have an adverse effect on the availability of the exemption from registration provided by Regulation D promulgated under the Securities Act with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result the offer and sale of the interests in the unenforceability against Company. In connection with the purchase of Units, such Member meets all suitability standards imposed on it by applicable Law.
(f) Such Member has been given the opportunity to (i) ask questions of, and receive answers from, the Company concerning the terms and conditions of the Units and other matters pertaining to an investment in the Company and (ii) obtain any additional information necessary to evaluate the merits and risks of an investment in the Company that the Company can acquire without unreasonable effort or expense. In considering its investment in the Units, such Member has evaluated for itself the risks and merits of such investment, and is able to bear the economic risk of such investment, including a complete loss of capital, and in addition has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company or its Subsidiaries or any director, officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement. Such Member has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company in light of its particular tax and financial situation, and has determined that the Units are a suitable investment for such Member.
Appears in 2 contracts
Samples: Operating Agreement (ALST Casino Holdco, LLC), Operating Agreement (ALST Casino Holdco, LLC)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member (as to himself or itself only) represents and warrants that to the Company and each other Member that, as of the time such Member becomes a party to this Agreement:
(ia) if it he or she is not a natural person, that or it is a corporation duly incorporated or formed andorganized, to the extent such concept exists in its jurisdiction of organization, is validly existing and in good standing under the laws of such jurisdictionthe state of its incorporation, (ii) or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of its state of formation, as the case may be, it has all requisite legal capacity full power and authority to enter into execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if and the execution, delivery and performance by it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate corporate, partnership or other entity action on limited liability company action, as the part of case may be;
(b) this Agreement has been duly and validly executed and delivered by such Member, (iv) and this Agreement constitutes a legal, valid legal and binding obligation of such Member Member, enforceable against it such Member in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and ; and
(vc) the execution, delivery and performance by such Member of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby (and thereby, if applicable) will not (A) if it is not a natural personnot, result in a violation with or without the giving of the certificate notice or lapse of incorporationtime, bylaws or other organizational documents of such Memberboth, (Bi) violate any provision of law, statute, rule or regulation to which such Member is subject, (ii) violate any order, judgment or decree applicable to such Member or (iii) conflict with, or constitute result in a breach or default (or an event that with notice or lapse of time or both would become a default) under, any term or give to others condition of any rights of termination, amendment, acceleration agreement or cancellation of, any agreement, indenture or other instrument to which such Member is a party or by which any property or asset of such Member is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this Agreementbound.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (J. Alexander's Holdings, Inc.), Limited Liability Company Agreement (J. Alexander's Holdings, Inc.)
Representations and Warranties of the Members. Each Member, severally and not jointly, of the Members hereby represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, other Member as follows:
(a) Such Member is a corporation or other Entity duly formed and validly existing and in good standing under the laws of such jurisdiction, (ii) it the jurisdiction of its organization with all requisite power and authority to own its assets and to carry on its business as now being conducted. Such Member has all requisite legal capacity power and authority to enter into and perform this Agreement and the other agreements contemplated to consummate be entered into by it in connection herewith and to carry out the transactions contemplated hereby, hereby and thereby.
(iiib) if it is not a natural person, the The execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this . This Agreement has been executed and delivered by a duly authorized officer of such Member and constitutes a legal, the valid and binding obligation of such Member Member, enforceable against it such Member in accordance with its termsthe terms hereof, except subject, as enforcement may be limited by equitable principles or by to enforcement, to bankruptcy, insolvency, reorganization, moratorium, or similar reorganization and other laws of general applicability relating to or limiting creditors’ affecting creditor’s rights generally and to general principles of equity.
(vc) the The execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions this Agreement and all other agreements contemplated hereby to which it is to be a party do not and will not (Ai) if it is not a natural personviolate any decree or judgment of any court of governmental authority that may be applicable to such Member; (ii) violate any law (or regulation promulgated under any law); (iii) violate or conflict with, or result in a violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict withbreach of, or constitute a default (or an event that with or without notice or lapse of time or both would become constitute a default) under, under any contract or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument agreement to which such Member is a party; or (iv) violate or conflict with any provision of the organizational documents of such Member.
(d) No broker, finder, agent or other third party has been employed by or by which any property or asset on behalf of such Member is bound (or affectedany partner, member, shareholder or advisor thereof) in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby, and no such party has any claim for any commission, finder’s fee or similar amount payable as a result of any engagement of such party by or on behalf of such Member.
(e) Such Member has acquired its Interest in the Venture for investment purposes and has not acquired its Interest in the Venture for the purpose of selling its Interest in the Venture, or (C) result in a violation of any lawcausing the Venture to sell its assets, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result customers in the unenforceability against such Member ordinary course of this Agreementa trade or business.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Behringer Harvard Multifamily Reit I Inc), Limited Liability Company Agreement (Behringer Harvard Multifamily Reit I Inc)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and shall be true and correct at all times:
(ia) if it is not a natural person, that it such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions by the board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member have been duly taken;
(b) such Member has duly executed and delivered this Agreement, the Registration Rights Agreement, and the consummation by other documents that this Agreement contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member, enforceable against such Member in accordance with their respective terms (except as may be limited by 868227.24-WILSR01A - MSW bankruptcy, insolvency, or similar Laws of general application and by the transactions contemplated hereby effect of general principles of equity, regardless of whether considered at law or in equity); and
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions or provisions of incorporation, bylaws or other organizational documents (A) the Organizational Documents of such Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument Material Contract to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulationLaw, order, judgment judgment, decree, writ, injunction, or decree applicable arbitral award to which such Member, except with respect to clause (B) Member is subject; or (Cii) for require any conflictsconsent, defaultsapproval, accelerationsor authorization from, terminationsfiling or registration with, cancellations or violations that would not in notice to, any material respect result in the unenforceability against Governmental Authority or other Person, unless such Member of this Agreementrequirement has already been satisfied.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Representations and Warranties of the Members. Each Member, severally and not jointly, of the Members hereby represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, other Member as follows:
(a) Such Member is a corporation or other Entity duly formed and validly existing and in good standing under the laws of such jurisdiction, (ii) it the jurisdiction of its organization with all requisite power and authority to own its assets and to carry on its business as now being conducted. Such Member has all requisite legal capacity power and authority to enter into and perform this Agreement and to consummate carry out the transactions contemplated hereby, .
(iiib) if it is not a natural person, the The execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this . This Agreement has been executed and delivered by a duly authorized officer of such Member or the general partner of such Member and constitutes a legal, the valid and binding obligation of such Member Member, enforceable against it such Member in accordance with its termsthe terms hereof, except subject, as enforcement may be limited by equitable principles or by to enforcement, to bankruptcy, insolvency, reorganization, moratorium, or similar reorganization and other laws of general applicability relating to or limiting creditors’ affecting creditor’s rights generally and to general principles of equity.
(vc) the The execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby this Agreement does not and will not (Ai) if it is not a natural personviolate any decree or judgment of any court of governmental authority that may be applicable to such Member; (ii) violate any law (or regulation promulgated under any law); (iii) violate or conflict with, or result in a violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict withbreach of, or constitute a default (or an event that with or without notice or lapse of time or both would become constitute a default) under, under any contract or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument agreement to which such Member is a party; or (iv) violate or conflict with any provision of the organizational documents of such Member.
(d) No broker, finder, agent or other third party has been employed by or by which any property or asset on behalf of such Member is bound (or affectedany partner, member, shareholder or advisor thereof) in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby, and no such party has any claim for any commission, finder’s fee or similar amount payable as a result of any engagement of such party by or on behalf of such Member.
(e) Such Member has acquired its Interest in the Venture for investment purposes and has not acquired its Interest in the Venture for the purpose of selling its Interest in the Venture, or causing the Venture to sell its assets, to customers in the ordinary course of a trade or business.
(i) To the best of such Member’s knowledge, (A) all amounts contributed and to be contributed, if any, to the Venture by such Member were not and will not be directly or indirectly derived from activities that contravene federal, state or international laws, regulations or executive or other orders, including, without limitation, anti-money laundering laws, regulations or executive or other orders; and (B) none of (1) such Member, (2) any Affiliate of such Member, (3) any Person having a greater than ten percent (10%) beneficial interest in such Member, or (C4) result any Person for whom such Member is acting as agent or nominee in connection with its investment in the Venture is a violation Prohibited Member; and (ii) such Member will provide (A) prompt notice to the Manager if, at any time, any of the representations and warranties in the foregoing clause (i) are untrue at any lawtime, ruleand (B) any information reasonably requested by the Manager in connection with the same. Such Member acknowledges and agrees that the Venture or the Manager may be required by applicable laws, regulationregulations or executive or other orders, orderincluding the USA PATRIOT Act and regulations and executive orders administered by the U.S. Treasury Department’s Office of Foreign Assets Control, judgment or decree applicable to take certain actions, including, without limitation, requiring a withdrawal of such Member, and “freezing the account” of such Member by, among other things, prohibiting further investments by such Member, prohibiting distributions to be made to such Member, except and reporting any such actions and disclosing such Member’s identity to the U.S. Treasury Department’s Office of Foreign Assets Control, and otherwise to comply with respect applicable laws, regulations and executive or other orders related to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this AgreementUSA PATRIOT Act and other anti-money laundering laws.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I Inc)
Representations and Warranties of the Members. Each MemberBy executing and delivering this Agreement, severally and not jointly, each Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the date hereof, as of the date such Member is admitted to the Company and as of the date(s) such Member is issued Units:
(ia) if it Such Member’s Units are being held for its own account solely for investment and not with a view to resale or distribution thereof other than in compliance with all applicable securities laws and this Agreement.
(b) If such Member is not an entity, such Member is duly organized and validly existing under the laws of its jurisdiction of organization. If such Member is a natural person, that it is duly incorporated or formed andsuch Member has full legal capacity.
(c) The execution, to the extent delivery and performance by such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery Member of this Agreement by it and the consummation of the transactions contemplated hereby are within such Member’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other entity action on the part of its behalf (or, if such Member is an individual, are within such Member’s legal right, (iv) this Agreement constitutes a legalpower and capacity), valid and binding obligation of such Member enforceable against it require no consent, approval, permit, license, order or authorization of, notice to, action by or in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratoriumrespect of, or similar laws relating to or limiting creditors’ rights generally filing with, any Governmental Authority, and (v) the execution, delivery do not and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby will not (A) if it is not a natural person, result in a violation breach of any of the certificate of incorporationterms, bylaws conditions or other organizational documents of such Member, (B) conflict withprovisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any provision of applicable law or give to others of any rights of terminationjudgment, amendmentorder, acceleration writ, injunction or cancellation of, decree or any agreement, indenture agreement or other instrument to which such Member is a party or by which such Member or any property or asset of such Member’s properties is bound. This Agreement has been duly executed and delivered by such Member is bound or affected, or (C) result in and constitutes a violation valid and binding agreement of any law, rule, regulation, order, judgment or decree applicable to such Member, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability enforceable against such Member in accordance with its terms, subject to the Enforceability Exceptions.
(d) Such Member is familiar with the business, financial condition, properties, operations and prospects of Holdco, its Subsidiaries and the Company, and has asked such questions of the Company and the Manager and conducted such due diligence concerning such matters and concerning the Class B Units, this Agreement and the Holdco Agreement as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction. Such Member has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Manager, the Company or any director, officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement. Such Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of holding Class B Units and being a Member. Such Member understands that owning Class B Units involves various risks, including the restrictions on transferability set forth in this Agreement, lack of any public market for such Class B Units, the risk of owning Class B Units for an indefinite period of time and the risk of losing its entire investment in the Company. Such Member is able to bear the economic risk of such investment; and such Member acknowledges that the Class B Units have not been registered under the Securities Act or any other applicable federal or state securities laws, and that the Company has no intention, and shall not have any obligation, to register or to obtain an exemption from registration for the Class B Units or to take action so as to permit sales pursuant to the Securities Act (including Rules 144 and 144A thereunder). Such Member has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company and holding Class B Units in light of its particular tax and financial situation, and has determined that the Class B Units are a suitable investment for such Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (MBOW Four Star, L.L.C.)
Representations and Warranties of the Members. Each Member, severally of Clearwire and not jointly, Hawaiian Member represents and warrants that to the other that:
(ia) if it is not a natural person, that it is corporation or limited liability company duly incorporated or formed and, to organized and subsisting in the extent such concept exists in its jurisdiction of its organization, is existing and in good standing under the laws of such jurisdiction, ;
(iib) it has all requisite legal capacity power and authority and has taken all action necessary in order to enter into execute and perform deliver this Agreement;
(c) this Agreement has been duly executed and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery of this Agreement delivered by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this Agreement constitutes is a legal, valid and binding obligation agreement of such Member it enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, or moratorium and similar laws of general applicability relating to or limiting affecting creditors’ ' rights generally and to general equity principles;
(vd) no notices, reports or other filings are required to be made by it with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by it from, any Governmental Entity, in connection with its execution and delivery of this Agreement, except those that have been made or obtained or that the failure to make or obtain are not, individually or in the aggregate, reasonably likely to (x) result in a material adverse effect on the Company or (y) prevent, materially delay or materially impair its ability to perform its obligations under this Agreement;
(e) the execution, delivery and performance of this Agreement by such Member it does not, and the consummation by such Member it of the transactions contemplated hereby will not (A) if it is not a natural personnot, constitute or result in (i) a breach or violation of, or a default under, its articles of organization, limited liability company agreement and other constitutive documents, (ii) a breach of or violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict witha default under, or constitute the acceleration of any obligations of or the creation of a default lien or encumbrance on its assets (with or an event that with notice or without notice, lapse of time or both would become a defaultboth) under, or give to others any rights of termination, amendment, acceleration or cancellation ofpursuant to, any agreement, indenture contracts binding upon it or instrument any applicable law or governmental or non-governmental permit or license to which it is subject or (iii) any change in the rights or obligations of any party under any of such Member contracts to which it is a party or by which any property or asset party, except, in the case of such Member is bound or affected, clause (ii) or (Ciii) above, for any breach, violation, default, acceleration, creation or change that, individually or in the aggregate, is not reasonably likely to (x) result in a violation of any lawmaterial adverse effect on the Company or (y) prevent, rulematerially delay or materially impair its ability to perform its obligations under this Agreement;
(f) there is no (i) legal action, regulationclaim, proceeding, investigation or controversy pending or, to its knowledge, threatened against it, or (ii) judgment, order, judgment award or consent decree applicable outstanding against or affecting it, which in either event is reasonably likely to such Member, except (x) result in a material adverse effect on the Company or (y) materially delay or materially impair its ability to perform its obligations under this Agreement; and
(g) with respect to clause (B) or (C) for any conflictsClearwire, defaultsit has access to funds sufficient to perform its obligations under Section 2.2, accelerationsand with respect to the Hawaiian Member, terminations, cancellations or violations that would not in any material respect result in it has funds sufficient to perform its obligations under the unenforceability against such Member of this Subscription Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Clearwire Corp)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and shall be true and correct as of the Effective Date or any subsequent date on which such Member is admitted to the Company (iand as a condition to such admission), and as of the date of receipt of any additional Units; provided that Section 3.02(e) if it is not a natural person, that it shall be true and correct at all times:
(a) such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions by the board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member and the consummation by have been duly taken;
(b) such Member has duly executed and delivered this Agreement and this Agreement constitutes the valid and binding obligation of such Member, enforceable against such Member in accordance with its terms (except as may be limited by bankruptcy, insolvency, or similar Laws of general application and by the transactions contemplated hereby effect of general principles of equity, regardless of whether considered at law or in equity);
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions or provisions of incorporation, bylaws or other (A) the organizational and governing documents of such Member, (B) conflict with, any material contract or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument material agreement to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulationLaw, order, judgment judgment, decree, writ, injunction, or decree applicable arbitral award to which such Member is subject; or (ii) require any consent, approval, or authorization from, filing or registration with, or notice to, any Governmental Authority or other Person, unless such requirement has already been satisfied;
(d) such Member (other than the Managing Member) is either (i) an “investment company” registered with the SEC as such term is defined under the 1940 Act or (ii) not required to be registered as an “investment company” as that term is defined under the 1940 Act and, except in either case, is both (x) an Accredited Investor, and (y) a Qualified Purchaser; and
(e) (i) with respect to clause (B) or (C) for any conflictseach Class B Member that is an “aggregator” entity through which multiple Persons indirectly hold Class B Units, defaultsincluding the Avenue Aggregator, accelerationssuch Class B Member has delivered to the Company a true and complete copy of its organizational and governing documents, terminations, cancellations or violations that would not in any material respect result in and such Class B Member’s organizational and governing documents include provisions implementing the unenforceability against such Member applicable terms and conditions of this Agreement, (ii) with respect to each Class B Member that is an “aggregator” entity through which multiple Persons indirectly hold Class B Units, including the Avenue Aggregator, the Company is a third-party beneficiary of such organizational and governing documents entitled to enforce such provisions as if it were a party thereto, and (iii) such Class B Member is not an Excluded Party as defined in clause (b) of such definition, in each case as determined by the Managing Member.
Appears in 1 contract
Representations and Warranties of the Members. Each Member, severally and not jointly, of the Members hereby represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, other Member as follows:
(a) Such Member is a corporation or other Entity duly formed and validly existing and in good standing under the laws of such jurisdiction, (ii) it the jurisdiction of its organization with all requisite power and authority to own its assets and to carry on its business as now being conducted. Such Member has all requisite legal capacity power and authority to enter into and perform this Agreement and to consummate carry out the transactions contemplated hereby, .
(iiib) if it is not a natural person, the The execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this . This Agreement has been executed and delivered by a duly authorized officer of such Member or the general partner of such Member and constitutes a legal, the valid and binding obligation of such Member Member, enforceable against it such Member in accordance with its termsthe terms hereof, except subject, as enforcement may be limited by equitable principles or by to enforcement, to bankruptcy, insolvency, reorganization, moratorium, or similar reorganization and other laws of general applicability relating to or limiting creditors’ affecting creditor’s rights generally and to general principles of equity.
(vc) the The execution, delivery and performance of this Agreement by such Member and the consummation by such Member of the transactions contemplated hereby this Agreement does not and will not (Ai) if it is not a natural personviolate any decree or judgment of any court of governmental authority that may be applicable to such Member; (ii) violate any law (or regulation promulgated under any law); (iii) violate or conflict with, or result in a violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict withbreach of, or constitute a default (or an event that with or without notice or lapse of time or both would become constitute a default) under, under any contract or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument agreement to which such Member is a party; or (iv) violate or conflict with any provision of the organizational documents of such Member.
(d) No broker, finder, agent or other third party has been employed by or by which any property or asset on behalf of such Member is bound (or affectedany partner, member, shareholder or advisor thereof) in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby, and no such party has any claim for any commission, finder’s fee or similar amount payable as a result of any engagement of such party by or on behalf of such Member.
(e) Such Member has acquired its Interest in the Venture for investment purposes and has not acquired its Interest in the Venture for the purpose of selling its Interest in the Venture, or causing the Venture to sell its assets, to customers in the ordinary course of a trade or business.
(i) To the best of such Member’s knowledge, (A) all amounts contributed and to be contributed, if any, to the Venture by such Member were not and will not be directly or indirectly derived from activities that contravene federal, state or international laws, regulations or executive or other orders, including, without limitation, anti-money laundering laws, regulations or executive or other orders; and (B) none of (1) such Member, (2) any Affiliate of such Member, (3) any Person having a greater than ten percent (10%) beneficial interest in such Member, or (C4) result any Person for whom such Member is acting as agent or nominee in connection with its investment in the Venture is a violation Prohibited Member; and (ii) such Member will provide (A) prompt notice to the Manager if, at any time, any of the representations and warranties in the foregoing clause (i) are untrue at any lawtime, ruleand (B) any information reasonably requested by the Manager in connection with the same. Such Member acknowledges and agrees that the Venture or the Manager may be required by applicable laws, regulationregulations or executive or other orders, orderincluding the USA PATRIOT Act and regulations and executive orders administered by the X.X. Xxxxxxxx Xxxxxxxxxx’s Office of Foreign Assets Control, judgment or decree applicable to take certain actions, including, without limitation, requiring a withdrawal of such Member, and “freezing the account” of such Member by, among other things, prohibiting further investments by such Member, prohibiting distributions to be made to such Member, except and reporting any such actions and disclosing such Member’s identity to the U.S. Treasury Department’s Office of Foreign Assets Control, and otherwise to comply with respect applicable laws, regulations and executive or other orders related to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against such Member of this AgreementUSA PATRIOT Act and other anti-money laundering laws.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I Inc)
Representations and Warranties of the Members. Each MemberMember for itself only, severally and not jointly, hereby represents and warrants that (i) if it is not a natural person, that it is duly incorporated or formed and, to the extent such concept exists Purchaser that the statements contained in its jurisdiction this Article III, Section 3.2 are correct and complete as of organization, the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as thought the Closing Date were substituted for the date of this Agreement throughout this Article III) (except where another date or period of time is existing and in good standing under the laws of such jurisdiction, specifically stated herein for a representation or warranty).
(iia) it Such Member has all requisite legal capacity authority and authority power to enter into and deliver this Agreement, and any other certificate, agreement, document or instrument to be executed and delivered by such Member in connection with the transactions contemplated hereby and thereby and to perform this Agreement its obligations hereunder and thereunder and to consummate the transactions contemplated herebyhereby and thereby. This Agreement has been, and will be, duly and validly authorized and approved, executed and delivered by such Member.
(iiib) if it is not a natural person, the execution and delivery of Assuming this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized and validly authorized, executed and delivered by all necessary corporate or the parties hereto and thereto other entity action on the part of than such Member, (iv) this Agreement is duly authorized, executed and delivered by such Member, and constitutes a the legal, valid and binding obligation obligations of such Member Member, enforceable against it such Member in accordance with its their respective terms, except as such enforcement may be is limited by general equitable principles principles, or by bankruptcy, insolvency, reorganization, moratorium, or insolvency and other similar laws relating to affecting the enforcement of creditors rights generally.
(c) Neither the execution or limiting creditors’ rights generally and (v) the execution, delivery and performance by such Member of this Agreement by or which such Member and is a party, nor the consummation or performance by such Member of the transactions contemplated hereby will not or thereby will, directly or indirectly, (Aa) contravene, conflict with, or result in a violation of any provision of the organizational documents of such Member (if it such Member is not a natural person); (b) contravene, conflict with, constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, any agreement or instrument to which such Member is a party or by which the properties or assets of such Member are bound; or (c) contravene, conflict with, result in a violation of the certificate of incorporation, bylaws or other organizational documents of such Member, (B) conflict withany breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any impair the rights of terminationsuch Member under, amendmentor alter the obligations of any person under, acceleration or cancellation ofcreate in any person the right to terminate, amend, accelerate or cancel, or require any notice, report or other filing (whether with a governmental authority or any other person) pursuant to, or result in the creation of a lien on any of the assets or properties of the Purchaser under, any agreementnote, indenture bond, mortgage, indenture, contract, lease, license, permit, franchise or other instrument or obligation to which such Member is a party or any of such Member’s assets and properties are bound or affected.
(d) To the Knowledge of such Member, there is no action pending against or threatened against or affecting, such Member by which any property governmental authority or asset other person with respect to such Member that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement.
(e) No person has, or as a result of the transactions contemplated herein will have, any right or valid claim against such Member for any commission, fee or other compensation as a finder or broker, or in any similar capacity, based upon arrangements made by or on behalf of such Member is bound and such Member will indemnify and hold the Purchaser and the Purchaser principal shareholders harmless against any liability or affectedexpense arising out of, or in connection with, any such claim.
(Cf) result Such Member is acquiring such Member’s portion of the Convertible Notes proposed to be acquired hereunder for investment for its own account and not with a view to the resale or distribution of any part thereof, and such Member has no present intention of selling or otherwise distributing such Convertible Notes or Conversion Shares, except in compliance with applicable securities Laws.
(g) Such Member understands that the Convertible Notes and Conversion Shares are characterized as “restricted securities” under the Securities Act inasmuch as this Agreement contemplates that, if acquired by the Shareholder pursuant hereto, the Convertible Notes and Conversion Shares would be acquired in a violation transaction not involving a public offering. The issuance of the Convertible Notes hereunder is being effected in reliance upon an exemption from registration afforded under Section 4(2) of the Securities Act. Such Member further acknowledges that if the Convertible Notes and Conversion Shares are issued to such Member in accordance with the provisions of this Agreement, such Convertible Notes and Conversion Shares may not be resold without registration under the Securities Act or the existence of an exemption therefrom. Such Member represents that he is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(h) Such Member understands and agrees that the Convertible Notes to be issued pursuant to this Agreement have not been registered under the Securities Act or the securities laws of any lawstate of the U.S.
(i) By its execution of this Agreement, rulesuch Member represents and warrants to the Purchaser as indicated on its signature page to this Agreement, regulation, order, judgment or decree applicable either that: (i) such Member is an Accredited Investor. “Accredited Investor” has the meaning set forth in Rule 501 under the Securities Act. Such Member understands that the Convertible Notes are being offered and sold to such MemberMember in reliance upon the truth and accuracy of the representations, except warranties, agreements, acknowledgments and understandings of such Member set forth in this Agreement, in order that the Purchaser may determine the applicability and availability of the exemptions from registration of the Convertible Notes on which the Purchaser is relying.
(j) Such Member has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect such person’s or entity’s interests in connection with respect the transactions contemplated by this Agreement; such Member has consulted, to clause the extent that it has deemed necessary, with its tax, legal, accounting and financial advisors concerning its investment in the Convertible Notes and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the Convertible Notes; such Member has had access to the SEC Reports; such Member has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding the Purchaser that such Member has requested and all such public information is sufficient for such Member to evaluate the risks of investing in the Convertible Notes; such Member has been afforded the opportunity to ask questions of and receive answers concerning the Purchaser and the terms and conditions of the issuance of the Convertible Notes; such Member is not relying on any representations and warranties concerning the Purchaser made by the Purchaser or any officer, employee or agent of the Purchaser, other than those contained in this Agreement or the SEC Reports; such Member will not sell or otherwise transfer the Convertible Notes, unless either (A) the transfer of such securities is registered under the Securities Act or (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result in the unenforceability against an exemption from registration of such securities is available; such Member understands and acknowledges that the Purchaser is under no obligation to register the Convertible Notes or Conversion Shares for sale under the Securities Act; and such Member understands and acknowledges that the Convertible Notes have not been recommended by any federal or state securities commission or regulatory authority, that the foregoing authorities have not confirmed the accuracy or determined the adequacy of this Agreementany information concerning the Purchaser that has been supplied to such Person and that any representation to the contrary is a criminal offense.
(k) Such Member will not transfer any or all of such Member’s Convertible Notes absent an exemption from the securities laws or an effective registration statement under the Securities Act and applicable state securities law covering the disposition of such Member’s Convertible Notes, without first providing the Purchaser with an opinion of counsel (which counsel and opinion are reasonably satisfactory to the Purchaser) to the effect that such transfer will be exempt from the registration and the prospectus delivery requirements of the Securities Act and the registration or qualification requirements of any applicable U.S. state securities laws.
(l) Survival. The representations of such Member shall survive the closing for two (2) years.
Appears in 1 contract
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and shall be true and correct at all times that such Member is a Member:
(ia) if it is not a natural person, that it such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into 853984.15A-WILSR01A - MSW execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions by the board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member have been duly taken;
(b) such Member has duly executed and delivered this Agreement, the Registration Rights Agreement, and the consummation by other documents that this Agreement contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member, enforceable against such Member in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, or similar Laws of general application and by the transactions contemplated hereby effect of general principles of equity, regardless of whether considered at Law or in equity); and
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions, or provisions of incorporation, bylaws or other (A) the organizational and governing documents of such Member, (B) conflict with, any contract or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument agreement to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulationLaw, order, judgment judgment, decree, writ, injunction, or decree applicable arbitral award to which such Member, except with respect to clause (B) Member is subject; or (Cii) for require any conflictsconsent, defaultsapproval, accelerationsor authorization from, terminationsfiling or registration with, cancellations or violations that would not in notice to, any material respect result in the unenforceability against Governmental Authority or other Person, unless such Member of this Agreementrequirement has already been satisfied.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and shall be true and correct at all times:
(ia) if it is not a natural person, that it such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions by the board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member have been duly taken;
(b) such Member has duly executed and delivered this Agreement, the Registration Rights Agreement, and the consummation by other documents that this Agreement contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member, enforceable against such Member in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, or similar Laws of general application and by the transactions contemplated hereby effect of general principles of equity, regardless of whether considered at law or in equity); and
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions or provisions of incorporation, bylaws or other organizational documents (A) the Organizational Documents of such Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument Material Contract to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulationLaw, order, judgment judgment, decree, writ, injunction, or decree applicable arbitral award to which such Member, except with respect to clause (B) Member is subject; or (Cii) for require any conflictsconsent, defaultsapproval, accelerationsor authorization from, terminationsfiling or registration with, cancellations or violations that would not in notice to, any material respect result in the unenforceability against Governmental Authority or other Person, unless such Member of this Agreementrequirement has already been satisfied.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to each other Member and to the Company that on the Agreement Date:
(a) Such Member (i) if it is not a natural person, that it has the necessary power and authority to enter into this Agreement and to carry out its obligations hereunder and (ii) is duly incorporated or formed and, to organized and validly existing under the extent such concept exists in Laws of its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery of this Agreement by it Agreement, and the consummation of the transactions contemplated hereby herein, have been duly authorized by all necessary corporate or other entity action action, and no other act or proceeding, corporate or otherwise, on its part is necessary to authorize the part execution of such Member, (iv) this Agreement or the consummation of any of the transactions contemplated hereby. This Agreement has been duly executed by such Member and constitutes a its legal, valid and binding obligation of such Member obligation, enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or moratorium and other similar laws Laws relating to or limiting affecting creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing.
(vb) the execution, The execution and delivery and performance of this Agreement by such Member and the consummation by such Member of this Agreement and the transactions contemplated hereby performance of its obligations hereunder do not and will not (A) if it is not a natural personconflict with, or result in a violation the breach of any provision of the certificate of incorporation, bylaws or other organizational constitutive documents of such Member. The execution and delivery by such Member of this Agreement and the performance of its obligations hereunder do not and will not (i) result in any violation, (B) conflict withbreach, conflict, default or constitute a event of default (or an event that which with notice or notice, lapse of time time, or both both, would become constitute a default or event of default) under), or give rise to others any rights right of termination, amendment, acceleration or cancellation oftermination or any additional payment obligation, under the terms of any agreementmaterial contract, indenture agreement or instrument permit to which such Member is a party or by which any property such Member’s assets or asset of such Member is operations are bound or affected, affected or (Cii) result violate, in a violation of any lawmaterial respect, rule, regulation, order, judgment or decree any Law applicable to such Member, except the Company or any of its Subsidiaries.
(c) To the knowledge of such Member, other than any consents that have already been obtained, no consent, waiver, approval, authorization, exemption, registration, license or declaration is required to be made or obtained by such Member in connection with (i) the execution, delivery or performance of this Agreement or (ii) the consummation of any of the transactions currently contemplated herein, excluding, for the avoidance of doubt, any transactions contemplated herein solely as a result of one or more amendments to this Agreement following the Agreement Date.
(d) (i) Such Member’s interest in the Company is intended to be and is being acquired solely for such Member’s own account for the purpose of investment and not with a view to any sale or other disposition of all or any part thereof, (ii) such Member’s knowledge and experience in financial and business matters are such that the Member is capable of evaluating the risks of making a Capital Contribution, and (iii) such Member’s determination to purchase the Membership Units and make Capital Contributions has been, and in each case will be, made by such Member independent of and without reliance upon any other Member or Person other than such Member’s legal counsel and financial, accounting, regulatory and Tax advisors, if any, and independent of any statements or opinions as to the advisability of such purchase or Capital Contribution or as to the properties, business, prospects or condition (financial or otherwise) of any Person in which the Company may invest which may have been made or given by any such other Person.
(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 (A) in the case of “U.S. persons” (as defined in Rule 902(k) of Regulation S of the Securities Act), 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 (including Rule 506 of Regulation D of the Securities Act), and (B) in the case of persons that are not U.S. persons (each, a “Non-U.S. Person”), in reliance on Regulation S promulgated under the Securities Act and exemptions under the applicable Laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold. The Member is aware that the Membership Units cannot be sold or otherwise disposed of unless they are registered under the Securities Act and applicable U.S. state securities Laws or unless an exemption from such registration is available, and that the Company has no present intention of so registering such interests under the Securities Act, and that accordingly such Member is able and is prepared to bear the economic risk of making a Capital Contribution and to suffer a complete loss of investment. The Member further 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) Either the Member or each beneficial owner of such Member is (A) an “accredited investor” within the meaning of Regulation D of the Securities Act; or (B) if the Member is not an accredited investor, the Member is a Non-U.S. Person.
(iii) If the Member is a Non-U.S. Person, the Member has not been solicited to purchase and has not and shall not acquire its Membership Units, directly or indirectly, while present in the United States.
(iv) If the Member is a Non-U.S. Person, the Member shall notify the Board promptly after it ceases to be a Non-U.S. Person.
(f) The Member (i) directly or indirectly, is acquiring the Membership Units in compliance with all applicable Laws and other legal requirements including the legal requirements of jurisdictions in which the Member is resident and in which such acquisition is being consummated, (ii) 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; and (iii) 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.
(g) 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.
(h) The Member agrees to deliver to the Company such information as to certain matters under the Securities Act, the Exchange Act, the Investment Company Act and any Tax Laws as the Company may reasonably request in order to ensure compliance with such acts and Laws and the availability of any exemptions thereunder.
(i) 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.
(j) The Member acknowledges that neither the Company nor any Affiliate thereof has rendered any investment advice or securities valuation advice to the 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.
(k) No representations or warranties have been made to the Member with respect to clause (B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material respect result the investment in the unenforceability against 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.
(l) None of the funds that the Member is using or will use to fund its Capital Contributions 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 subject to Title I of ERISA by reason of a plan’s investment in the entity (any such plan under ERISA or the Code or any such entity.
(m) The Member understands that the Company intends to be classified and taxed as a partnership for U.S. federal tax purposes and not as a publicly-traded partnership, and accordingly such Member agrees that it will not Transfer any interest in the Company if it would cause the Company to become a “publicly traded partnership” as such term is defined in Section 7704(b) of this Agreementthe Code and the Treasury Regulations thereunder.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Albany International Corp /De/)
Representations and Warranties of the Members. Each Member, severally and not jointly, Member hereby represents and warrants to the Company and each other Member that the following statements are and shall be true and correct from and after the date of such Member’s admission as a Member of the Company:
(ia) if it is not a natural person, that it such Member is duly incorporated incorporated, organized, or formed and(as applicable), to the extent such concept exists in its jurisdiction of organizationvalidly existing, is existing and in good standing under the laws Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such jurisdictionMember is duly qualified and in good standing in the jurisdiction of its principal place of business, (ii) it if different from its jurisdiction of incorporation, organization, or formation; and such Member has all requisite legal capacity full power and authority to enter into execute and perform deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder, (iii) if it is not a natural person, the execution and delivery of this Agreement all necessary actions by it and the consummation consents of the transactions contemplated hereby have been duly authorized by all necessary corporate board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other entity action on applicable Persons necessary for the part of such Memberdue authorization, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery delivery, and performance of this Agreement by such Member and the consummation by have been duly taken or obtained;
(b) such Member has duly executed and delivered this Agreement and each of the transactions contemplated hereby other documents that this Agreement requires or contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member, enforceable against such Member in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity); and 896060.18-WILSR01A - MSW
(c) such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (Ai) if it is not a natural personconflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the certificate terms, conditions or provisions of incorporation, bylaws or other organizational documents (A) the Organizational Documents of such Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument material Contract to which such Member is a party or by which any property it or asset of such Member is bound or affectedits assets are bound, or (C) result in a violation of any law, rule, regulation, order, judgment Law or decree applicable arbitral award to which such Member, except with respect to clause (B) Member is subject; or (Cii) for require any conflictsconsent, defaultsapproval, accelerationsor authorization from, terminationsfiling or registration with, cancellations or violations that would not in notice to, any material respect result in the unenforceability against Governmental Authority or other Person, unless such Member of this Agreementrequirement has already been satisfied.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Nextera Energy Partners, Lp)
Representations and Warranties of the Members. Each By executing and delivering this Agreement, each Member, severally and not jointlyas of the Effective Date, represents and warrants to the Company and each other Member that the following statements are true and correct as of the Effective Date and as of each date on which such Member makes a Capital Contribution (ias applicable):
(a) if it Such Member’s Units are being held for its own account solely for investment and not with a view to resale or distribution thereof other than in compliance with all applicable securities Laws and this Agreement.
(b) If such Member is not an Entity, such Member is duly organized and validly existing under the Laws of its jurisdiction of organization. If such Member is a natural person, that it is duly incorporated or formed and, to the extent such concept exists in its jurisdiction of organization, is existing and in good standing under the laws of such jurisdiction, (ii) it has all requisite legal capacity and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby, (iii) if it is not a natural person, the execution and delivery of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other entity action on the part of such Member, (iv) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally and has full legal capacity.
(vc) None of the execution, delivery and performance of this Agreement by such Member and or the consummation by such Member of the transactions contemplated hereby acquisition of Units (i) conflicts or will not (A) if it is not a natural person, result in conflict with or constitutes or will constitute a violation of the certificate any of incorporation, bylaws or other its organizational documents of such Memberdocuments, (Bii) conflicts or will conflict withwith or constitutes or will constitute a breach or violation of, or constitute a default (or an event that which, with notice or lapse of time or both both, would become constitute such a default) under, or give with respect to others any rights of termination, amendment, acceleration or cancellation of, material obligations under any agreement, indenture or instrument material agreement to which such Member is a party or (iii) violates or will violate any Law or any order, judgment, decree or injunction of any Governmental Entity applicable to Member except, solely in the case of clauses (ii) or (iii), for such conflicts, breaches, violations or defaults as would not prevent the acquisition by which Member of the Units or materially impair such Member’s ability to perform its obligations under this Agreement or any property or asset of the Other Transaction Documents. This Agreement has been duly executed and delivered by such Member is bound or affected, or (C) result in and constitutes a violation valid and binding agreement of any law, rule, regulation, order, judgment or decree applicable to such Member, except enforceable against such Member in accordance with its terms, subject to the Enforceability Exceptions.
(d) Such Member acknowledges that the offering and sale of the Units have not been, and will not be registered under the Securities Act, and are being made in reliance upon federal and state exemptions for transactions not involving a public offering. In furtherance thereof, such Member represents and warrants that it is an “Accredited Investor” (as defined in Regulation D promulgated under the Securities Act) and such Member has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the risks of its investment in the Units. Such Member understands and agrees that it will not take any action that could have an adverse effect on the availability of the exemption from registration provided by Regulation D promulgated under the Securities Act and other applicable securities Laws with respect to clause the offer and sale of the interests in the Company. In connection with the purchase of Units, such Member meets all applicable suitability standards imposed on it by applicable Law.
(Be) Such Member has been given the opportunity to (i) ask questions of, and receive answers from, the Company concerning the terms and conditions of the Units and other matters pertaining to an investment in the Company and (ii) obtain any additional information necessary to evaluate the merits and risks of an investment in the Company that the Company can acquire without unreasonable effort or expense. In considering its investment in the Units, such Member has evaluated for itself the risks and merits of such investment, and is able to bear the economic risk of such investment, including a complete loss of capital. Such Member has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company in light of its particular tax and financial situation, and has determined that the Units are a suitable investment for such Member.
(Cf) No Person has acted directly or indirectly as a broker, finder or financial advisor for such Member in connection with the negotiations related to the offering and sale of Units, and no Person is entitled to any conflictsfee or commission or like payment for acting as a broker, defaults, accelerations, terminations, cancellations finder or violations that would not financial advisor based in any material respect result in the unenforceability against way on any agreement, arrangement or understanding made by or on behalf of such Member of this AgreementParty.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Summit Midstream Partners, LP)