Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows: (i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company. (ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity). (iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken. (iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject. (v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement. (vi) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. (vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise. (viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated. (ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56. (x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA. (b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Strategic Hotels & Resorts, Inc)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Except as identified in the LOI, the Member has not retained any broker, finder or other commission or fee agent, agent and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. It has acquired its Interest solely for investment purposes only and not for the purpose of resale.
(vii) Neither such Member nor nor, to such Member’s knowledge, any Person who holds any interest in such Member Member, is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction DocumentsAgreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents Agreements are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(xb) Such Member is notIn addition, each of AW Investor and throughout AW Manager represent and warrant to BH that they are Controlled by the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAAW Persons.
(bc) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties or those set forth in Article XIV and/or in the Contribution Agreement made by such Member and all such representations and warranties shall represent recourse obligations of the Members and will survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Representations and Warranties of the Members. (a) Each Member of the Members represents and warrants as of the Effective Date to each of the other Members and the Company as follows:
(ia) It is duly organizedThe Units being acquired by such Member are being purchased for such Member’s own account and not with a view to, validly existing and or for sale in good standing 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 such Units have not been registered under the Securities Act or any state securities laws by reason of its jurisdiction their contemplated issuance in transactions exempt from the registration and prospectus delivery requirements thereof and that the reliance of formation with all the Company and others upon such exemptions is predicated in part by the representations and warranties of such Member contained in this Agreement.
(b) Such Member has the requisite power and authority (whether corporate or otherwise) and legal capacity to enter into this Agreement into, and to conduct the business of the Companycarry out its obligations under, this Agreement.
(iic) This Agreement constitutes the legal, valid The execution and binding obligation delivery by such Member of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership consummation by such Member of the transactions contemplated by this Agreement have been duly authorized before the Effective Date by all necessary action on the part of the such Member.
(d) This Agreement has been duly executed and delivered by such Member necessary for the authorizationand constitutes a valid and binding obligation enforceable against such Member in accordance with its terms.
(e) Such Member is not subject to, execution or obligated under, any provision of (i) any agreement, arrangement or understanding, (ii) any license, franchise or permit or (iii) any law, regulation, order, judgment or decree 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 delivery performance of this Agreement, and Agreement or the consummation of the transactions contemplated herebyby this Agreement, have been duly takenexcept for such agreements as to which a Member has previously obtained the consent of the other party or parties thereto.
(ivf) The execution and delivery of this Agreement No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any public body, court, third party or authority is necessary on such Member’s part, which has not previously been obtained by the Member, and such Member for the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vig) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal No Person has or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z)have, as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets result of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA act or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties omission by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of 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 Units 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 1 contract
Samples: Limited Liability Company Agreement (Biolife Solutions Inc)
Representations and Warranties of the Members. (a) Each Member (as to himself, herself or itself only) represents and warrants to the Company and each other Members Member that, as followsof the time such Member becomes a party to this Agreement:
(i) It a. he or she is a natural person, or it is a corporation duly organized, validly existing and in good standing under the laws of the state of its jurisdiction incorporation, or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of formation with all requisite its state of formation, as the case may be, it has full power and authority to enter into execute, deliver and perform this Agreement and to conduct consummate the business of the Company.
(ii) This Agreement constitutes the legaltransactions contemplated hereby, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise execution, delivery and performance by it of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, hereby have been duly taken.authorized by all necessary corporate, partnership or limited liability company action, as the case may be;
b. this Agreement (ivor the separate joinder agreement, in the form attached hereto as Exhibit B, executed by such Member) The has been duly and validly executed and delivered by such Member, and this Agreement (or such joinder, assuming the due execution hereof or thereof by the Company) constitutes a legal and binding obligation of such Member, enforceable against such Member in accordance with its terms; and
c. the execution, delivery and performance by such Member of this Agreement by (or any joinder to this Agreement, if applicable, in the Member, form attached hereto as Exhibit B) and the consummation by such Member of the transactions contemplated herebyhereby (and thereby, does not conflict if applicable) will not, with or contravene without the provisions giving of its organizational documents notice or lapse of time, or both, (i) 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 result in a breach or default under, any term or condition of any agreement or other instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated party or by this Agreement or any Transaction Documents, whether which such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56bound.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Cannae Holdings, Inc.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite entity power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No Except for the gaming licenses, no consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and become a member of the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company any Property or the execution and delivery of this Agreement.
(vi) It Each Member understands that (A) an investment in the Company involves a substantial and high degree of riskrisk and does hereby represent that it has a net worth sufficient to bear the economic risk of its investment in the Company, (B) no federal or state agency has passed on the offer and sale of the an Interest in the Company to such PersonCompany, (C) it must bear the economic risk of such Person’s an investment in the Company for an indefinite period of time, since such Person’s Interest Interests in the Company has have not been registered for sale under the Securities Act of 1933 1933, as amended (the "Securities Act") and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person any Interests cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company Interests and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Companydevelop.
(vii) Neither such Each Member nor any Person who holds any interest in such Member represents and warrants that it is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” an "accredited investor" as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business Regulation D of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, PubSecurities Act. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.36
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including reasonable out of pocket costs and attorneys’ ' fees) which they may incur by reason ofreason, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of any Member and/or the Company (nothing herein shall constitute a waiver or extension of any Memberapplicable statute of limitations).
Appears in 1 contract
Samples: Operating Agreement (Bh Re LLC)
Representations and Warranties of the Members. (a) Each Member (as to such person only) represents and warrants to the Company and each other Members Member that, as followsof the time such Member becomes a party to this Agreement:
(ia) It he or she is a natural person, or it is a corporation duly organized, validly existing and in good standing under the laws of the state of its jurisdiction incorporation, or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the laws of formation with all requisite its state of formation, as the case may be, it has full power and authority to enter into execute, deliver and perform this Agreement and to conduct consummate the business of the Company.
(ii) This Agreement constitutes the legaltransactions contemplated hereby, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise execution, delivery and performance by it of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, hereby have been duly taken.authorized by all necessary corporate, partnership or limited liability company action, as the case may be;
(ivb) The 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, and this Agreement (or such joinder, assuming the due execution hereof or thereof by the Company) constitutes a legal and binding obligation of such Member, enforceable against such Member in accordance with its terms; and
(c) the execution, delivery and performance by such Member of this Agreement by (or any joinder to this Agreement, if applicable, in the Member, form attached hereto as Exhibit B) and the consummation by such Member of the transactions contemplated herebyhereby (and thereby, does not conflict if applicable) will not, with or contravene without the provisions giving of its organizational documents notice or lapse of time, or both, (i) 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 result in a breach or default under, any term or condition of any agreement or other instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated party or by this Agreement or any Transaction Documents, whether which such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56bound.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Representations and Warranties of the Members. (a) Each Member --------------------------------------------- of the Members represents and warrants as of the date of this Agreement to the other Members Member and the Company as follows:
(ia) It The Membership Interest being acquired by such Member in connection with the Closing is duly organizedbeing purchased for such Member's own account and not with a view to, validly existing and or for sale in good standing 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 such Membership Interest will not be registered under the Securities Act or any state securities laws by reason of its jurisdiction contemplated issuance in transactions exempt from the registration and prospectus delivery requirements thereof and that the reliance of formation with all the Company and others upon such exemptions is predicated in part by the representations and warranties of such Member contained herein.
(b) Such Member has the requisite power and authority (whether corporate or otherwise) and legal capacity to enter into this Agreement into, and to conduct the business of the Companycarry out its obligations under, this Agreement.
(iic) This Agreement constitutes the legal, valid The execution and binding obligation delivery by such Member of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership consummation by such Member of the transactions contemplated hereby have been duly authorized prior to the date of this Agreement by all necessary action on the part of the such Member.
(d) This Agreement has been duly executed and delivered by such Member necessary for the authorizationand constitutes a valid and binding obligation enforceable against such Member in accordance with its terms.
(e) Such Member is not subject to, execution or obligated under, any provision of (i) any agreement, arrangement or understanding, (ii) any license, franchise or permit or (iii) any law, regulation, order, judgment or decree 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 delivery performance of this Agreement, and Agreement or the consummation of the transactions contemplated hereby, have been duly takenexcept for such agreements as to which a ------ Member has previously obtained the consent of the other party or parties thereto.
(ivf) The execution and delivery of this Agreement No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any public body, court, third party or authority is necessary on such Member's part, which has not previously been obtained by the Member, and such Member for the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vig) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal No person or state agency entity has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z)have, as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets result of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA act or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties omission by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of any right, interest or valid claim against the Company or any Memberother 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.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Apogee Enterprises Inc)
Representations and Warranties of the Members. (a) Each Member As of the Effective Date, each of the Members represents and warrants as of the Effective Date to each of the other Members and the Company as follows:
(ia) It is duly organizedThe Units being acquired by such Member are being purchased for such Member’s own account and not with a view to, validly existing and or for sale in good standing 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 such Units have not been registered under the Securities Act or any state securities laws by reason of its jurisdiction their contemplated issuance in transactions exempt from the registration and prospectus delivery requirements thereof and that the reliance of formation with all the Company and others upon such exemptions is predicated in part by the representations and warranties of such Member contained in this Agreement.
(b) Such Member has the requisite power and authority (whether corporate or otherwise) and legal capacity to enter into this Agreement into, and to conduct the business of the Companycarry out its obligations under, this Agreement.
(iic) This Agreement constitutes the legal, valid The execution and binding obligation delivery by such Member of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership consummation by such Member of the transactions contemplated by this Agreement have been duly authorized before the Effective Date by all necessary action on the part of the such Member.
(d) This Agreement has been duly executed and delivered by such Member necessary for the authorizationand constitutes a valid and binding obligation enforceable against such Member in accordance with its terms.
(e) Such Member is not subject to, execution or obligated under, any provision of (i) any agreement, arrangement or understanding, (ii) any license, franchise or permit or (iii) any law, regulation, order, judgment or decree 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 delivery performance of this Agreement, and Agreement or the consummation of the transactions contemplated herebyby this Agreement, have been duly takenexcept for such agreements as to which a Member has previously obtained the consent of the other party or parties thereto.
(ivf) The execution and delivery of this Agreement No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any public body, court, third party or authority is necessary on such Member’s part, which has not previously been obtained by the Member, and such Member for the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vig) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal No Person has or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z)have, as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets result of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA act or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified omission by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection withsuch Member, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of 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 Units 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 1 contract
Samples: Limited Liability Company Agreement (Texas Rare Earth Resources Corp.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws Laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agent, agent other than NorthMarq or AmeriSphere and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws Laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. It has acquired its Interest solely for investment purposes only and not for the purpose of resale.
(vii) Neither such Member nor Member, nor, to such Member’s knowledge, any Person who holds any interest in such Member and with respect only to HP, nor any HP Person is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amendedamended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement or any Transaction DocumentsAgreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents Agreements are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws Laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws Laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(xb) Such Member is notIn addition, HP represents and throughout warrants to BH that it and the period it is a Member will not be, an entity deemed to hold Submanager are Controlled by the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAHP Persons.
(bc) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties or those set forth in Article XIV made by such Member and all such representations and warranties shall represent recourse obligations of the Members and will survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member. In addition, BH agrees to indemnify HP, the HP Persons and their respective Affiliates for any losses or liabilities incurred by them under any nonrecourse carveouts under the Loan which directly result from any unauthorized transfers of the Property by BH or its Affiliates, from any transfers of direct or indirect interests in BH, or from the fraud, willful misconduct or gross negligence of BH.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members Member(s) as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority Governmental Authority or other person or entity for the Member to enter into this Agreement and the CompanyAgreement. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company No Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(viib) Neither such In addition to the representations and warranties set forth above, Operating Member nor any Person who holds any interest in such represents, warrants and covenants to MN Retail as follows:
(i) Operating Member is a Prohibited Person limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on August 7, 2015, and that certain limited liability company operating agreement dated September 4, 2015 (collectively, the “Operating Member Organizational Documents”), and a true and correct copy of the Operating Member Organizational Documents have been provided to counsel for MN Retail.
(ii) The Operating Member Organizational Documents have not been terminated nor a Person modified or amended and continue to be in full force and effect.
(iii) No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for Operating Member to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.
(iv) The offer and sale of interests in Operating Member has been undertaken in full compliance with whom a U.S. Person, including a all applicable federal and state securities laws and no interests in Operating Member have been offered or sold to any person who was not at the time of such offer or sale an “financial institutionaccredited investor” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business Section 2(15) of the type contemplated by this Agreement Securities Act of 1933 and Rule 501 promulgated thereunder and under the securities laws of various states.
(v) The Key Persons own, directly or any Transaction Documentsindirectly, whether such prohibition arises under United States law52% of the Operating Member and have the power to direct the management and policies of Operating Member.
(vi) Operating Member hereby covenants and agrees not to amend or permit the amendment of the management and control provisions of the Operating Member Organizational Documents without the prior written consent of MN Retail.
(vii) The issuance of all ownership interests in Operating Member was accomplished in accordance with all laws, regulationincluding, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwisewithout limitation, all securities laws.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member It is in compliance with all applicable provisions anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the USA Patriot Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Pub. L. No. 107-56Title III of the USA PATRIOT Act (the “Patriot Act”), and other authorizing statutes, executive orders and regulations administered by OFAC applicable to Operating Member, and related Securities and Exchange Commission, SRO or other agency rules and regulations applicable to Operating Member, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance.
(ix) Neither: (a) Operating Member, any Affiliate of Operating Member nor any Person controlled by Operating Member; nor (b) to the best of knowledge of Operating Member, after making due inquiry, any Person who owns a controlling interest in or otherwise controls Operating Member; nor (c) to the best of knowledge of Operating Member, if Operating Member is a privately held entity, any Person otherwise having a direct or indirect beneficial interest (other than with respect to an interest in a publicly traded entity) in Operating Member; nor (d) any Person for whom Operating Member is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or entity named on an OFAC List, nor is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC.
(x) Such Unless disclosed in writing to MN Retail on the date hereof, it is not a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, that it is notnot controlled by a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, and throughout that, to the period it best of Operating Member’s knowledge, after making due inquiry, none of the direct or indirect owners of Operating Member (other than any owner(s) of any interest(s) in a publicly traded entity) is a Senior Foreign Political Figure, or an Immediate Family Member will not be, an entity deemed to hold the plan assets or a Close Associate of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAa Senior Foreign Political Figure.
(xi) Subject to any confidentiality obligations existing as of the date of any request by MN Retail, Operating Member agrees that, upon receiving a request from MN Retail, Operating Member shall provide information reasonably required by MN Retail (a) that indicates that the representations, warranties and covenants of Operating Member set forth in this Section 13.01(b) are true, and (b) Each to permit MN Retail to comply with its obligations under all applicable anti-money laundering and anti-terrorist laws, regulations and executive orders. Operating Member consents to the disclosure to United States regulators and law enforcement authorities by MN Retail and its Affiliates of such information about Operating Member that MN Retail reasonably deems necessary or appropriate to comply with applicable anti-money laundering and anti-terrorist laws, regulations, and executive orders.
(xii) Operating Member agrees that as a condition of any Transfer of any of its direct or indirect interest in the Company, MN Retail has the right to indemnify require full compliance with these representations, warranties and covenants, to the satisfaction of MN Retail, with respect to any transferee and any Person who owns or otherwise controls the transferee.
(xiii) Operating Member shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless MN Retail and the Company Company, and each general or limited partner of MN Retail or any Affiliate, shareholder, member or other Member and their officersholder of any equity interest in MN Retail, directorsor any manager, shareholdersofficer or director of the foregoing (collectively, partnersthe “MN Retail and/or Company Indemnitees”), members, employees, successors and assigns from and against any losses, claims, demands, liabilities, costs, damages, expenses and all loss, damage, liability or expense (including costs and attorneys’ fees) causes of action to which they such MN Retail and/or Company Indemnitees may incur by reason of, or become subject in connection with, with any breach of these representations, warranties and covenants that causes a breach or violation or failed condition under any documents by which the Company is bound (such as loan documents).
(xiv) Operating Member acknowledges and agrees that if, following its investment in the Company, MN Retail reasonably believes that Operating Member has breached its representations, warranties or covenants set forth herein, or that action is otherwise required by law or regulation, MN Retail has the right or may be obligated to freeze or block the investment, to prohibit additional investments, to segregate the assets constituting the investment in accordance with applicable OFAC laws and regulations, to decline any redemption or Transfer requests, to redeem Operating Member’s investment, and/or to report such action to government authorities. Operating Member further acknowledges that it will have no claim against the Company and/or MN Retail or its Affiliates for any form of damages as a result of any of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Memberactions.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Strategic Realty Trust, Inc.)
Representations and Warranties of the Members. (a) Each Member represents hereby represents, warrants and warrants covenants to the other Members (and each Person admitted to the Company shall represent, warrant and covenant as a condition to its admission) as follows:
(ia) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation incorporation, with all requisite power and authority to enter into and perform this Agreement and to conduct the business of the CompanyAgreement.
(iib) This Agreement has been duly authorized, executed and delivered by such Member and constitutes the legal, valid and binding obligation of the Member such Member, enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iiic) No consents or approvals are required from any governmental authority or other person or entity Person for the such Member to enter into this Agreement and form the Company. All limited liability company, corporate or partnership action on the part of the such Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(ivd) The Neither the execution and delivery of this Agreement by the such Member, and nor the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational organic documents or any agreement or instrument by which it or its properties are bound bound, or any law, rule, regulation, order or decree to which it or its properties are subject.
(ve) The Company has not retained any brokerOn behalf of itself and each assignee or transferee of it, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (Ai) an investment the direct and indirect ownership interests in the Company involves a substantial such Member have been issued in compliance with all applicable laws, orders, judgments, ordinances, rules, regulations and high degree requirements of riskall federal, state and local governmental and quasi-governmental authorities, agencies, departments, commissions, bureaus and instrumentalities (B) no federal including, without limitation, those promulgated by or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 andand the Securities Exchange Act of 1934), therefore(ii) such Member is acquiring its Company Interest for its own account for investment and not with a view to the distribution or resale thereof, canor with the present intention of distributing or reselling such interest, and that it will not be sold transfer or otherwise transferred unless subsequently registered under attempt to transfer its Company Interest in violation of the Securities Act of 1933 (as amended, the “Securities Act”), the Securities Exchange Act of 1934 or an exemption from such registration is availableany other applicable federal, state or local securities law, and (iii) each Member is an accredited investor under Regulation D of the Interest in Securities Act. Nothing herein shall be construed to create or impose on the Company or any Member an obligation to register any transfer of such Person cannot be sold any Company Interest or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Companyany portion thereof.
(viif) Neither such Member it, nor any of its affiliates (or any of their respective principals, partners or funding sources), is or will become (i) a Person who holds any interest designated by the U.S. Department of Treasury’s Office of Foreign Asset Control as a “specially designated national or blocked person” or similar status, (ii) a Person described in such Member is Section 1 of U.S. Executive Order 13224 issued on September 23, 2001; (iii) a Prohibited Person nor otherwise identified by a governmental or legal authority as a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, the Company or any Member is prohibited from transacting business of the type contemplated by this Agreement business; (iv) directly or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published indirectly owned or controlled by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets government of any “employee benefit plan” as defined in Section 3(3) of ERISA country that is subject to Title I an embargo by the United States government; or (v) a Person acting on behalf of ERISA or a government of any “plan” as defined in and country that is subject to Section 4975 of an embargo by the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each United States government. Such Member agrees to indemnify and hold harmless that it will notify the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against in writing immediately upon the occurrence of any and all loss, damage, liability or expense (including costs and attorneys’ fees) event which they may incur by reason of, or in connection with, any breach of would render the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of contained in this Agreement and the termination and dissolution of the Company or any MemberSection 7.01(f) incorrect.
Appears in 1 contract
Samples: Operating Agreement (Interstate Hotels & Resorts Inc)
Representations and Warranties of the Members. (a) Each Member hereby represents and warrants to the other Members Member, as followsof the date hereof that:
(ia) It Such Member is duly organized, validly existing and (to the extent such concept is relevant under its jurisdiction of incorporation or formation) in good standing under the laws of its jurisdiction of formation incorporation or formation, with all requisite power and authority to enter into and perform this Agreement and to conduct the business of the CompanyAgreement.
(iib) This Agreement has been duly authorized, executed and delivered by such Member and constitutes the legal, valid and binding obligation of the such Member, enforceable against such Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iiic) No consents or approvals are required from any governmental authority or other person or entity Person for the such Member to enter into this Agreement and form the CompanyVenture. All limited liability company, corporate corporate, partnership or partnership trust action on the part of the such Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(ivd) The Neither the execution and delivery of this Agreement by the such Member, and nor the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it is or its properties are bound bound, or any law, rule, regulation, order or decree to which it or its properties are subject.
(ve) The Company Such Member acknowledges that (i) the Interest issued to such Member has not retained any brokerbeen registered under the Securities Act of 1933, finder as amended, or other commission state securities laws, (ii) the Interest, therefore, cannot be resold unless registered under the Securities Act and applicable state securities laws, or fee agentunless an exemption from registration is available, (iii) there is no public market for the Interest, and no (iv) neither the Venture nor any other Member has any obligation or intention to register the Interest for resale under the Securities Act of 1933, as amended, or any state securities laws or to take any action that would make available any exemption from the registration requirements of such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreementlaws.
(vif) It understands Such Member hereby acknowledges that (A) an investment in because of the Company involves a substantial and high degree of risk, (B) no federal restrictions on transfer or state agency has passed on the offer and sale assignment of the Interest which are set forth in the Company this Agreement, such Member may have to such Person, (C) it must bear the economic risk of such Person’s its investment in the Company Venture for an indefinite period of time.
(g) On behalf of itself and each assignee or transferee of it, since such Person’s Member is acquiring its Interest for its own account for investment and not with a view to the distribution or resale thereof, or with the present intention of distributing or reselling such Interest, and that it will not transfer or attempt to transfer its Interest in the Company has not been registered for sale under violation of the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z)1933, as amended, is prohibited from transacting business the Securities Exchange Act of the type contemplated by this Agreement 1934, as amended, or any Transaction Documentsother applicable federal, whether such prohibition arises under United States state or local securities law, regulation, executive orders and lists published by . Nothing herein shall be construed to create or impose on the OFAC (including those executive orders and lists published by OFAC with respect Venture or any Member an obligation to Specially Designated Nationals and Blocked Persons) register any transfer of any Interest or otherwiseany portion thereof.
(viiih) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that To the funds used to pay sellers and lessors under the Transaction Documents are derivedbest of its knowledge: (i) from transactions that do not violate United States law nor, the Capital Contributions contributed by such Member to the extent such funds originate outside the United StatesVenture were not and are not directly or indirectly derived from activities that may contravene applicable federal, do not violate the state or international laws of the jurisdiction in which they originatedand regulations, including anti-money laundering laws and regulations; and (ii) from permissible sources under United States law and to the extent none of (A) such funds originate outside the United StatesMember, (B) any person Controlling or Controlled by such Member, (C) if such Member is a privately held entity, any person having a beneficial interest in such Member, or (D) any person for whom such Member is acting as agent or nominee in connection with this investment, is a country, territory, individual or entity named on an OFAC list, nor is a person or entity prohibited under the laws OFAC Programs. As used herein, “OFAC Programs” mean the programs administered by U.S. Treasury Department’s Office of Foreign Assets Control that prohibit dealings with individuals or entities in certain countries regardless of whether such individuals or entities appear on the jurisdiction in which they originatedOFAC lists.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Representations and Warranties of the Members. (a) Each Member hereby represents and warrants to the other Members Member, as followsof the date hereof that:
(ia) It Such Member is duly organized, validly existing and (to the extent such concept is relevant under its jurisdiction of incorporation or formation) in good standing under the laws of its jurisdiction of formation incorporation or formation, with all requisite power and authority to enter into and perform this Agreement and to conduct the business of the CompanyAgreement.
(iib) This Agreement has been duly authorized, executed and delivered by such Member and constitutes the legal, valid and binding obligation of the such Member, enforceable against such Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iiic) No consents or approvals are required from any governmental authority or other person or entity Person for the such Member to enter into this Agreement and form the CompanyVenture. All limited liability company, corporate corporate, partnership or partnership trust action on the part of the such Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(ivd) The Neither the execution and delivery of this Agreement by the such Member, and nor the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it is or its properties are bound bound, or any law, rule, regulation, order or decree to which it or its properties are subject. 1160165.07-NYCSR03A - MSW
(e) Such Member acknowledges that (i) the Interest issued to such Member has not been registered under the Securities Act of 1933, as amended, or state securities laws, (ii) the Interest, therefore, cannot be resold unless registered under the Securities Act and applicable state securities laws, or unless an exemption from registration is available, (iii) there is no public market for the Interest, and (iv) neither the Venture nor any other Member has any obligation or intention to register the Interest for resale under the Securities Act of 1933, as amended, or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws.
(vf) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition Such Member hereby acknowledges that because of the Company Property restrictions on transfer or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency has passed on the offer and sale assignment of the Interest which are set forth in the Company this Agreement, such Member may have to such Person, (C) it must bear the economic risk of such Person’s its investment in the Company Venture for an indefinite period of time.
(g) On behalf of itself and each assignee or transferee of it, since such Person’s Member is acquiring its Interest for its own account for investment and not with a view to the distribution or resale thereof, or with the present intention of distributing or reselling such Interest, and that it will not transfer or attempt to transfer its Interest in the Company has not been registered for sale under violation of the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z)1933, as amended, is prohibited from transacting business the Securities Exchange Act of the type contemplated by this Agreement 1934, as amended, or any Transaction Documentsother applicable federal, whether such prohibition arises under United States state or local securities law, regulation, executive orders and lists published by . Nothing herein shall be construed to create or impose on the OFAC (including those executive orders and lists published by OFAC with respect Venture or any Member an obligation to Specially Designated Nationals and Blocked Persons) register any transfer of any Interest or otherwiseany portion thereof.
(viiih) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that To the funds used to pay sellers and lessors under the Transaction Documents are derivedbest of its knowledge: (i) from transactions that do not violate United States law nor, the Capital Contributions contributed by such Member to the extent such funds originate outside the United StatesVenture were not and are not directly or indirectly derived from activities that may contravene applicable federal, do not violate the state or international laws of the jurisdiction in which they originatedand regulations, including anti-money laundering laws and regulations; and (ii) from permissible sources under United States law and to the extent none of (A) such funds originate outside the United StatesMember, (B) any person Controlling or Controlled by such Member, (C) if such Member is a privately held entity, any person having a beneficial interest in such Member, or (D) any person for whom such Member is acting as agent or nominee in connection with this investment, is a country, territory, individual or entity named on an OFAC list, nor is a person or entity prohibited under the laws OFAC Programs. As used herein, “OFAC Programs” mean the programs administered by U.S. Treasury Department’s Office of Foreign Assets Control that prohibit dealings with individuals or entities in certain countries regardless of whether such individuals or entities appear on the jurisdiction in which they originatedOFAC lists.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws Laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agent, agent other than NorthMarq or Lender and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws Laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. It has acquired its Interest solely for investment purposes only and not for the purpose of resale.
(vii) Neither such Member nor Member, nor, to such Member’s knowledge, any Person who holds any interest in such Member and with respect only to MP, nor any MP Person is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amendedamended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement or any Transaction DocumentsAgreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents Agreements are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws Laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws Laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(xb) Such Member is notIn addition, MP represents and throughout warrants to BH that it and the period it is a Member will not be, an entity deemed to hold Property Manager are Controlled by the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAMP Persons.
(bc) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties or those set forth in Article XIV made by such Member and all such representations and warranties shall represent recourse obligations of the Members and will survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member. In addition, BH agrees to indemnify MP, the MP Persons and their respective Affiliates for any losses or liabilities incurred by them under any nonrecourse carveouts under the Loan which directly result from any unauthorized transfers of the Property by BH or its Affiliates, from any transfers of direct or indirect interests in BH, or from the fraud, willful misconduct or gross negligence of BH.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Representations and Warranties of the Members. (a) Each Member of the Members represents and warrants as of the Effective Date to each of the other Members and the Company as follows:
(ia) It is duly organizedThe Units being acquired by such Member are being purchased for such Member’s own account and not with a view to, validly existing and or for sale in good standing 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 such Units have not been registered under the Securities Act or any state securities laws by reason of its jurisdiction their contemplated issuance in transactions exempt from the registration and prospectus delivery requirements thereof and that the reliance of formation with all the Company and others upon such exemptions is predicated in part by the representations and warranties of such Member contained in this Agreement.
(b) Such Member has the requisite power and authority (whether corporate or otherwise) and legal capacity to enter into this Agreement into, and to conduct the business of the Companycarry out its obligations under, this Agreement.
(iic) This Agreement constitutes the legal, valid The execution and binding obligation delivery by such Member of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership consummation by such Member of the transactions contemplated by this Agreement have been duly authorized before the Effective Date by all necessary action on the part of the such Member.
(d) This Agreement has been duly executed and delivered by such Member necessary for the authorizationand constitutes a valid and binding obligation enforceable against such Member in accordance with its terms.
(e) Such Member is not subject to, execution or obligated under, any provision of (i) any agreement, arrangement or understanding, (ii) any license, franchise or permit or (iii) any law, regulation, order, judgment or decree 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 delivery performance of this Agreement, and Agreement or the consummation of the transactions contemplated herebyby this Agreement, have been duly takenexcept for such agreements as to which a Member has previously obtained the consent of the other party or parties thereto.
(ivf) The execution and delivery of this Agreement No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any public body, court, third party or authority is necessary on such Member’s part, which has not previously been obtained by the Member, and such Member for the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vig) It understands that (A) an investment in 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 involves or any other Member for any commission, fee or other compensation as a substantial and high degree of riskfinder or broker, or in any similar capacity, in connection with the transactions contemplated by this Agreement.
(Bh) no federal If such Member is or state agency has passed on the offer and sale ever becomes an employee of the Interest in the Company to Company, such Person, (C) it must bear the economic risk Member acknowledges and agrees that such Member’s ownership of such Person’s investment in the Company for Units and status as a Member does not constitute an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold express or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in implied promise by the Company of such Person cancontinued employment and will not be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person interfere in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in any way with the Company’s right to terminate such employment at any time.
(viii) Neither such Member nor any Person who holds any interest in such Such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a an “financial institutionaccredited investor” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business Regulation D of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwiseSecurities Act.
(viiij) Such The Member has taken, had an opportunity to ask questions of and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) receive answers from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company or its designated representatives and each has had the opportunity to examine such documents and other information which the Member has requested for the purpose of answering questions the Member may have concerning the terms and their officersconditions of this investment, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations questions have been answered and warranties shall survive such documents and information have been reviewed to the execution and delivery of this Agreement and the termination and dissolution full satisfaction of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (ASAlliances Biofuels, LLC)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Except as set forth in the Purchase Agreement and except for ORION Property Partners, who shall be compensated by Seller upon the closing of the acquisition of the Real Property, no Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Real Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor or a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(zSection 5312(a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documentsrelated transaction document, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, taken and shall continue to take, take such measures as are required by applicable law to assure that the funds used to pay sellers Seller and lessors others under the Transaction Documents Purchase Agreement and related transaction documents are derived: (i) derived from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under States do not violate the laws of the jurisdiction in which they originatedoriginate.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(xb) Such Member is notIn addition to the representations and warranties set forth above, Sponsor represents and throughout the period it warrants to Xxxxxxxxx as follows:
(i) Sponsor is a Member will limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on September 17, 2009 (the “Organizational Documents”).
(ii) The aforementioned Organizational Documents have not be, an entity deemed been terminated nor modified or amended and continue to hold the plan assets be in full force and effect.
(iii) No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for Sponsor to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.
(iv) The offer and sale of interests in Sponsor has been undertaken in full compliance with all applicable federal and state securities laws and no interests in Sponsor have been offered or sold to any person who was not at the time of such offer or sale an “employee benefit planaccredited investor” as defined in Section 3(32(15) of ERISA the Securities Act of 1933 and Rule 501 promulgated thereunder and under the securities laws of various states.
(v) The Sponsor Persons have no knowledge that any of the representations and warranties of Seller under the Purchaser Agreement are inaccurate in any material respect.
(vi) Sponsor and none of its direct or indirect equity owners are “qualified organizations” within the meaning of Code Section 514(c)(9)(C), and Sponsor does not own a direct or indirect interest in Seller.
(vii) To Sponsor’s knowledge, which shall mean the knowledge of H. Xxxxxxxx Xxxx, X.X. Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxx Xxxxxxx, Sponsor and its Affiliates have acted in good faith and have used diligent, commercially reasonable efforts to provide Xxxxxxxxx with all due diligence materials in the Sponsor’s possession, or the possession of any Affiliates of Sponsor, that Xxxxxxxxx has requested, other than certain materials regarding valuation and offers to purchase.
(viii) To Sponsor’s actual knowledge, which shall mean the actual knowledge of H. Xxxxxxxx Xxxx, X.X. Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxx Xxxxxxx, except as disclosed in the preliminary title report regarding the Real Property initially provided by Sponsor to Xxxxxxxxx and its Affiliates, there is subject no legal or administrative action, proceeding, claim, arbitration or suit pending before any court, agency or official, nor any such claim or action threatened in writing, relating to Title I Sponsor, the Real Property or with respect to the validity of ERISA any statutes, ordinances, regulations or restrictions or any permits or approvals thereunder relating to the Real Property.
(c) In addition to the representations and warranties set forth above, Xxxxxxxxx represents and warrants to Sponsor as follows:
(i) Xxxxxxxxx is a limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on September 20, 2010.
(ii) No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for Xxxxxxxxx to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.
(iii) The offer and sale of interests in Xxxxxxxxx has been undertaken in full compliance with all applicable federal and state securities laws and no interests in Xxxxxxxxx have been offered or sold to any person who was not at the time of such offer or sale an “planaccredited investor” as defined in and subject to Section 4975 2(15) of the Code pursuant to Securities Act of 1933 and Rule 501 promulgated thereunder and under the Plan Asset Rules, as modified by Section 3(42) securities laws of ERISAvarious states.
(bd) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of Sponsor and/or the Company or any other Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Home Co LLC)
Representations and Warranties of the Members. (a) Each By executing and delivering this Agreement, each Member hereby represents and warrants to the Company and each other Members Member that the following statements are true and correct as followsof the date hereof, as of the date such Member is admitted to the Company and as of the date(s) such Member is acquires Units and/or makes a Capital Contribution:
(ia) 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 an entity, such Member is duly organized, organized and validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Companyorganization. If such Member is a natural person, such Member has full legal capacity.
(iic) 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 action on 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, and do not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any provision of applicable law or of any judgment, order, writ, injunction or decree or any agreement or other instrument to which such Member is a party or by which such Member or any of such Member’s properties is bound. This Agreement has been duly executed and delivered by such Member and constitutes the legal, a valid and binding obligation agreement of the such Member, enforceable against such Member enforceable in accordance with its terms terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)Enforceability Exceptions.
(iiid) No consents Such Member is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act or approvals are required from any governmental authority or other person or entity for has disclosed in writing that such Member is not an accredited investor in a signed writing delivered to the Company. Such Member to enter into 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 (whether oral or written) furnished by or on behalf of, the Manager, the Company. All limited liability company, corporate Holdco or partnership action on the part any of the Member necessary for the authorizationits Subsidiaries or any director, execution and delivery officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company . Such Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are it is capable of evaluating the merits and risks of holding Class A Units and being a 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 public market for such Class A Units, the 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, 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 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.
(vii) Neither such Member nor any Person who holds any interest Company and holding Class A Units in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “light of its particular tax and financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has takensituation, and shall continue to take, such measures as are required by applicable law to assure has determined that the funds used to pay sellers and lessors under the Transaction Documents Class A Units are derived: (i) from transactions that do not violate United States law nor, to the extent a suitable investment for such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (MBOW Four Star, L.L.C.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members Member(s) as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority Governmental Authority or other person or entity for the Member to enter into this Agreement and the CompanyAgreement. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Other than a disposition fee required to be paid by SRT to Glenborough, LLC, in connection with the sale by SRT of the Initial Company Property to the Company, no Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Initial Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(viib) Neither such In addition to the representations and warranties set forth above, Operating Member nor any Person who holds any interest in such represents, warrants and covenants to GAP as follows:
(i) Operating Member is a Prohibited Person limited liability company currently existing pursuant to that certain Certificate of Formation filed with the Secretary of State of Delaware on January 28, 2015, and that certain limited liability company operating agreement dated March 6, 2015 (collectively, the “Operating Member Organizational Documents”), and a true and correct copy of the Operating Member Organizational Documents have been provided to counsel for GAP.
(ii) The Operating Member Organizational Documents have not been terminated nor a Person modified or amended and continue to be in full force and effect.
(iii) No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for Operating Member to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.
(iv) The offer and sale of interests in Operating Member has been undertaken in full compliance with whom a U.S. Person, including a all applicable federal and state securities laws and no interests in Operating Member have been offered or sold to any person who was not at the time of such offer or sale an “financial institutionaccredited investor” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business Section 2(15) of the type contemplated by this Agreement Securities Act of 1933 and Rule 501 promulgated thereunder and under the securities laws of various states.
(v) The Key Persons own, directly or any Transaction Documentsindirectly, whether such prohibition arises under United States law52% of the Operating Member and have the power to direct the management and policies of Operating Member.
(vi) Operating Member hereby covenants and agrees not to amend or permit the amendment of the management and control provisions of the Operating Member Organizational Documents without the prior written consent of GAP.
(vii) The issuance of all ownership interests in Operating Member was accomplished in accordance with all laws, regulationincluding, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwisewithout limitation, all securities laws.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member It is in compliance with all applicable provisions anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the USA Patriot Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Pub. L. No. 107-56.
Title III of the USA PATRIOT Act (x) Such Member is notthe “Patriot Act”), and throughout the period it is a Member will not beother authorizing statutes, an entity deemed executive orders and regulations administered by OFAC applicable to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA Operating Member, and related Securities and Exchange Commission, SRO or other agency rules and regulations applicable to Operating Member, and has policies, procedures, internal controls and systems that is subject are reasonably designed to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAensure such compliance.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Strategic Realty Trust, Inc.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite entity power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No Except for the gaming licenses, no consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and become a member of the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf in connection with the acquisition of the Company any Property or the execution and delivery of this Agreement.
(vi) It Each Member understands that (A) an investment in the Company involves a substantial and high degree of riskrisk and does hereby represent that it has a net worth sufficient to bear the economic risk of its investment in the Company, (B) no federal or state agency has passed on the offer and sale of the an Interest in the Company to such PersonCompany, (C) it must bear the economic risk of such Person’s an investment in the Company for an indefinite period of time, since such Person’s Interest Interests in the Company has have not been registered for sale under the Securities Act of 1933 1933, as amended (the "Securities Act") and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person any Interests cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company Interests and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Companydevelop.
(vii) Neither such Each Member nor any Person who holds any interest in such Member represents and warrants that it is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” an "accredited investor" as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business Regulation D of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISASecurities Act.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including reasonable out of pocket costs and attorneys’ ' fees) which they may incur by reason ofreason, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of any Member and/or the Company (nothing herein shall constitute a waiver or extension of any Memberapplicable statute of limitations).
Appears in 1 contract
Samples: Operating Agreement (Bh Re LLC)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agent, agent and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. It has acquired its Interest solely for investment purposes only and not for the purpose of resale.
(vii) Neither such Member nor nor, to such Member’s knowledge, any Person who holds any interest in such Member Member, is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction DocumentsAgreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents Agreements are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(xb) Such Member In addition to the representations and warranties set forth above, DD-CTP represents and warrants to BH as follows:
(i) DD-CTP is nota limited liability company currently existing pursuant to Articles of Organization filed with the Secretary of State of Florida, and throughout that certain Operating Agreement dated September , 2009 (collectively, the period it is “Organizational Documents”), and a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in true and subject to Section 4975 correct copy of the Code pursuant Organizational Documents have been provided to the Plan Asset Rules, as modified by Section 3(42) of ERISAcounsel for BH.
(bii) The aforementioned Organizational Documents have not been terminated nor modified or amended and continue to be in full force and effect.
(iii) No consent or authorization of any other persons or entities, other than those whose consent has been secured, is required for DD-CTP to enter into this Agreement or to take any action or grant any consent or approval under this Agreement.
(iv) DD-CTP is owned, directly or indirectly, and Controlled by Xxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx who have the power to direct the management and policies of DD-CTP.
(c) DD-CTP hereby covenants and agrees that DD-CTP shall not transfer all or any part of its Interest to any Person, if, as a result of such transfer, a tax-exempt entity would be the direct, indirect or beneficial owner of all or a portion of such Interest.
(d) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of DD-CTP and/or the Company or any other Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Representations and Warranties of the Members. (a) Each Member hereby represents and warrants to the other Members Orion as follows:
(ia) It is duly organizedSuch Member owns the Gateway Interests set forth opposite such Member’s name on Schedule A, validly existing of record and in good standing under the laws beneficially, free and clear of all liens, claims, charges, security interests, and encumbrances of any kind whatsoever.
(b) Such Member has not, since acquiring its jurisdiction Gateway Interests, ever granted to any person an option or right to purchase or otherwise acquire its Gateway Interests, by contract of formation with all requisite sale or otherwise.
(c) Such Member has full right, power and authority to enter into execute, deliver and perform this Agreement and to conduct carry out the business of the Companytransactions contemplated hereby.
(iid) This Agreement has been duly and validly executed and delivered by such Member and constitutes the legala valid, valid and binding obligation of the such Member, enforceable against such Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar (except as such enforceability may be limited by laws and public policy affecting the creditor’s rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equitygenerally).
(iiie) No consents Such Member is an “Accredited Investors” as defined in Regulation D promulgated under the Act.
(f) The Orion Interests specified opposite such Member’s name on Schedule A are being acquired by such Member for its own account, for investment purposes and not with a view to the sale or approvals are required from distribution of all or any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorizationOrion Interests, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company has not retained any broker, finder or other commission or fee agent, and no such person has acted on its behalf except in connection with the acquisition of Reverse Merger Transaction, nor with any present intention to sell or in any way distribute the Company Property or same, as those terms are used in the execution Act, and delivery of this Agreementthe rules and regulations promulgated thereunder, except in connection with the Reverse Merger Transaction.
(vig) It understands that (A) an investment in the Company involves a substantial and high degree of risk, (B) no federal or state agency Such Member has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such sufficient knowledge and experience in real estate and, other financial and business matters that they are so as to be capable of evaluating the merits and risks of acquiring the Orion Interests.
(h) Such Member has reviewed copies of such documents and other information as such Member has deemed necessary in order to make an informed investment decision with respect to its acquisition of the Orion Interests.
(i) Such Member understands that the Orion Interests may not be sold, transferred or otherwise disposed of without registration under the Act or the availability of an exemption therefrom.
(j) Such Member understands and has the financial capability of assuming the economic risk of an investment in the CompanyOrion Interests for an indefinite period of time.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viiik) Such Member has takenunderstands the tax consequences and risks of this transaction, and shall continue to take, such measures as are required by applicable law to assure that will seek professional assistance in reviewing the funds used to pay sellers tax consequences this transaction and lessors under in the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws preparation of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originatedits tax returns.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(ia) It such Member is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation formation, with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.;
(iib) This this Agreement constitutes the legal, valid and binding obligation of the such Member and is enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity).terms;
(iiic) No no consents or approvals are required from any governmental authority or other person or entity for the such Member to enter into this Agreement and become a member of the Company. All ;
(d) all limited liability company, corporate corporate, or partnership action on the part of the such Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.;
(ive) The the execution and delivery of this Agreement by the such Member, and the consummation of the transactions contemplated hereby, does not conflict with with, or contravene contravene, the provisions of its organizational organic documents or any agreement or instrument by which it is, or its properties are bound are, bound, or any law, rule, regulation, order order, or decree to which it is, or its properties are are, subject.;
(vf) The Company such Member has not retained any broker, finder finder, or other commission or fee agent, and no such person has acted on its behalf behalf, in connection with the acquisition of the Company Property Shopping Center or the execution and delivery of this Agreement.;
(vig) It understands that (A) an such Member has acquired its Interest for its own account for investment only, and not with a view to, or for sale in the Company involves a substantial and high degree of riskconnection with, (B) no federal or state agency has passed on the offer and sale any distribution thereof in violation of the Securities Act of 1933, as amended (the “Securities Act”); and
(h) such Member understands that:
(i) the Interest in the Company to such Person, (C) that it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company is acquiring has not been registered for sale under the Securities Act of 1933 andor any applicable state securities law, therefore, and cannot be sold or otherwise transferred resold unless subsequently registered under the Securities Act of 1933 and such laws or unless an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate ; and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company.
(vii) Neither such Member nor any Person who holds any interest in such Member is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amended, is prohibited from transacting business of the type contemplated by this Agreement or any Transaction Documents, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, registration under the Securities Act and such laws of is unlikely at any time in the jurisdiction in which they originated.
(ix) Such future, and neither the Administrative Member nor the other Member is in compliance with all applicable provisions of obligated to file a registration under the USA Patriot Securities Act of 2001, Pub. L. No. 107-56or such laws.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Operating Agreement
Representations and Warranties of the Members. (a) Each Member hereby represents and warrants to the other Members Member, as followsof the date hereof that:
(ia) It Such Member is duly organized, validly existing and (to the extent such concept is relevant under its jurisdiction of incorporation or formation) in good standing under the laws of its jurisdiction of formation incorporation or formation, with all requisite power and authority to enter into and perform this Agreement and to conduct the business of the CompanyAgreement.
(iib) This Agreement has been duly authorized, executed and delivered by such Member and constitutes the legal, valid and binding obligation of the such Member, enforceable against such Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iiic) No consents or approvals are required from any governmental authority or other person or entity Person for the such Member to enter into this Agreement and form the CompanyVenture. All limited liability company, corporate corporate, partnership or partnership trust action on the part of the such Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(ivd) The Neither the execution and delivery of this Agreement by the such Member, and nor the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it is or its properties are bound bound, or any law, rule, regulation, order or decree to which it or its properties are subject.
(ve) The Company Such Member acknowledges that (i) the Interest issued to such Member has not retained any brokerbeen registered under the Securities Act of 1933, finder as amended, or other commission state securities laws, (ii) the Interest, therefore, cannot be resold unless registered under the Securities Act and applicable state securities laws, or fee agentunless an exemption from registration is available, (iii) there is no public market for the Interest, and no (iv) neither the Venture nor any other Member has any obligation or intention to register the Interest for resale under the Securities Act of 1933, as amended, or any state securities laws or to take any action that would make available any exemption from the registration requirements of such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreementlaws.
(vif) It understands Such Member hereby acknowledges that (A) an investment in because of the Company involves a substantial and high degree of risk, (B) no federal restrictions on transfer or state agency has passed on the offer and sale assignment of the Interest which are set forth in the Company this Agreement, such Member may have to such Person, (C) it must bear the economic risk of such Person’s its investment in the Company Venture for an indefinite period of time.
(g) On behalf of itself and each assignee or transferee of it, since such Person’s Member is acquiring its Interest for its own account for investment and not with a view to the distribution or resale thereof, or with the present intention of distributing or reselling such Interest, and that it will not transfer or attempt to transfer its Interest in the Company has not been registered for sale under violation of the Securities Act of 1933 and1933, thereforeas amended, cannot be sold or otherwise transferred unless subsequently registered under the Securities Exchange Act of 1933 1934, as amended, or any other applicable federal, state or local securities law. Nothing herein shall be construed to create or impose on the Venture or any Member an exemption from such registration is available, and the obligation to register any transfer of any Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Companyany portion thereof.
(viih) Neither As of the date hereof and at all times during the term of this Agreement: (i) the Capital Contributions contributed by such Member nor to the Venture were not and are not directly or indirectly derived from activities that may contravene applicable federal, state or international laws and regulations, including anti-money laundering laws and regulations; (ii) to the best of its knowledge, none of (A) such Member, (B) any Person who holds any interest in person Controlling or Controlled by such Member, (C) if such Member is a Prohibited Person nor privately held entity, any person having a Person beneficial interest in such Member, or (D) any person for whom such Member is acting as agent or nominee in connection with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amendedthis investment, is a country, territory, individual or entity named on an OFAC list, nor is a person or entity prohibited from transacting business under the OFAC Programs. As used herein, “OFAC Programs” mean the programs administered by U.S. Treasury Department’s Office of the type contemplated by this Agreement Foreign Assets Control that prohibit dealings with individuals or any Transaction Documents, entities in certain countries regardless of whether such prohibition arises under United States law, regulation, executive orders and lists published by individuals or entities appear on the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwiselists.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISA.
(b) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties by such Member and all such representations and warranties shall survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Representations and Warranties of the Members. (a) Each Member represents and warrants to the other Members as follows:
(i) It is duly organized, validly existing and in good standing under the laws Laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to conduct the business of the Company.
(ii) This Agreement constitutes the legal, valid and binding obligation of the Member enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and public policy affecting the rights of creditors generally and the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or equity)terms.
(iii) No consents or approvals are required from any governmental authority or other person or entity for the Member to enter into this Agreement and the Company. All limited liability company, corporate or partnership action on the part of the Member necessary for the authorization, execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly taken.
(iv) The execution and delivery of this Agreement by the Member, and the consummation of the transactions contemplated hereby, does not conflict with or contravene the provisions of its organizational documents or any agreement or instrument by which it or its properties are bound or any law, rule, regulation, order or decree to which it or its properties are subject.
(v) The Company Member has not retained any broker, finder or other commission or fee agentagent other than Brush Island Capital, LLC or Lender and no such person has acted on its behalf in connection with the acquisition of the Company Property or the execution and delivery of this Agreement.
(vi) It understands that (A) an investment in the Company involves a substantial and a high degree of risk, (B) no federal or state agency has passed on the offer and sale of the Interest in the Company to such Person, (C) it must bear the economic risk of such Person’s investment in the Company for an indefinite period of time, since such Person’s Interest in the Company has not been registered for sale under the Securities Act of 1933 and, therefore, cannot be sold or otherwise transferred unless subsequently registered under the Securities Act of 1933 or an exemption from such registration is available, and the Interest in the Company of such Person cannot be sold or otherwise transferred unless registered under applicable state securities or blue sky laws Laws or an exemption from such registration is available, (D) there is no established market for the Interest of such Person in the Company and no public market will develop and (E) such Person’s principals have such knowledge and experience in real estate and, other financial and business matters that they are capable of evaluating the merits and risks of an investment in the Company. It has acquired its Interest solely for investment purposes only and not for the purpose of resale.
(vii) Neither such Member nor Member, nor, to such Member’s knowledge, any Person who holds any interest in such Member and with respect only to CH, nor any CH Person is a Prohibited Person nor a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as amendedamended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement or any Transaction DocumentsAgreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(viii) Such Member has taken, and shall continue to take, such measures as are required by applicable law to assure that the funds used to pay sellers and lessors under the Transaction Documents Agreements are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws Laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws Laws of the jurisdiction in which they originated.
(ix) Such Member is in compliance with all applicable provisions of the USA Patriot Act of 2001, Pub. L. No. 107-56.
(x) Such Member is not, and throughout the period it is a Member will not be, an entity deemed to hold the plan assets of any “employee benefit plan” as defined 56 in Section 3(3) of ERISA that is subject to Title I of ERISA or any “plan” as defined in and subject to Section 4975 of the Code pursuant to the Plan Asset Rules, as modified by Section 3(42) of ERISAall material respects.
(b) In addition, CH represents and warrants to BH that it, and for so long as CHRES/Management, L.L.C. is the Property Manager, the Property Manager are or will be Controlled by at least one of the CH Persons.
(c) Each Member agrees to indemnify and hold harmless the Company and each other Member and their officers, directors, shareholders, partners, members, employees, successors and assigns from and against any and all loss, damage, liability or expense (including costs and attorneys’ fees) which they may incur by reason of, or in connection with, any breach of the foregoing representations and warranties or those set forth in Article XIV made by such Member and all such representations and warranties shall represent recourse obligations of the Members and will survive the execution and delivery of this Agreement and the termination and dissolution of the Company or any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
