Common use of Representations and Warranties of Members Clause in Contracts

Representations and Warranties of Members. Each Member hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) that: (i) if such Member is a natural person, he or she has the capacity to execute and agree to this Agreement and to perform its obligations hereunder, (ii) if such Member is not a natural person, it is duly organized, validly existing and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act or any state securities law, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the risks and merits of an investment in Holdings LLC and has had an opportunity to ask questions and request information concerning Holdings LLC; (v) such Member is able to bear the economic and financial risk of an investment in Holdings LLC for an indefinite period of time; (vi) such Member is either (a) an “accredited investor” or is “sophisticated” (as each such term is used in Regulation D under the Securities Act) or (b) a non-U.S. person (as such term is used in Regulation S under the Securities Act); (vi) the execution, delivery and performance of this Agreement have been duly authorized by such Member and do not require such Member to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any law or regulation applicable to such Member or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound; and (vii) this Agreement is valid, binding and enforceable against such Member in accordance with its terms.

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

Representations and Warranties of Members. Each Member hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) the Company that: (i) if such Member is a natural person, he or she has the capacity to execute knowledge and agree to this Agreement experience in financial and to perform its obligations hereunder, (ii) if such Member is not a natural person, it is duly organized, validly existing business matters and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act or any state securities law, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the merits and risks and merits of an investment in Holdings LLC the Company and has had making an opportunity to ask questions and request information concerning Holdings LLCinformed investment decision with respect thereto; (vii) such Member is able to bear the economic and financial risk of an investment in Holdings LLC the Company for an indefinite period of time; (viiii) such Member is either acquiring its Membership Interests for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (aiv) an “accredited investor” or is “sophisticated” (as each such term is used in Regulation D the Membership Interests have not been registered under the Securities Actsecurities laws of any jurisdiction, and cannot be Transferred unless they are subsequently registered or otherwise qualified under applicable securities laws (unless an exemption from such registration or other qualification is available) and the provisions of this Agreement governing Transfers of Membership Interests have been complied with; (v) such Member is duly authorized to execute and deliver this Agreement (or the Joinder Agreement to which it is a party) and to perform its obligations hereunder, and has duly executed and delivered this Agreement (b) a non-U.S. person (or such Joinder Agreement, as such term is used in Regulation S under the Securities Actcase may be); (vi) this Agreement (and, if applicable, such Joinder Agreement) is a valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to the enforcement of creditors’ rights generally and by general principles of equity; (vii) the execution, delivery and performance of this Agreement have been duly authorized (and, if applicable, Joinder Agreement) by such Member and do does not require such Member to obtain any consent conflict with, result in a violation or approval that has not been obtained and do not contravene default under or result in a default any Person having the right to terminate, modify or require consent under any provision (with or without notice, lapse of any law time or regulation applicable to such Member or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound; and (viiboth) this Agreement is valid, binding and enforceable against such Member in accordance with its terms.any

Representations and Warranties of Members. Each Member and each other Person who acquires an Interest or Interest Equivalent in the Company hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) the Company that: (i) if such Member is a natural person, he or she has the capacity to execute and agree to this Agreement and to perform its obligations hereunder, (ii) if such Member is not a natural person, it is duly organized, validly existing and an "accredited investor" (as defined in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered Rule 501 under the Securities Act or any state securities law, Act) and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from has such requirements; (iv) such Member is familiar with the risks associated with owning an interest knowledge and experience in entities such as Holdings LLC, financial and business matters and is capable of evaluating the merits and risks and merits of an investment in Holdings LLC the Company and has had making an opportunity to ask questions and request information concerning Holdings LLCinformed investment decision with respect thereto; (vii) such Member it is able to bear the economic and financial risk of an investment in Holdings LLC the Company for an indefinite period of time; (viiii) such Member it is either acquiring an Interest or Interest Equivalent for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (aiv) an “accredited investor” or is “sophisticated” (as each such term is used in Regulation D it understands and acknowledges that the Interests and Interest Equivalents have not been registered under the Securities Act) or (b) a non-U.S. person (as such term is used in Regulation S securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the Securities Act)provisions of this Agreement have been complied with; (viv) the execution, delivery and performance of this Agreement have been duly authorized by such Member Person and do not require such Member Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Member Person or other governing documents or any agreement or instrument to which such Member Person is a party or by which such Member Person is bound; and (viivi) this Agreement is valid, binding and enforceable against such Member Person in accordance with its terms, except as the enforceability thereof may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally.

Representations and Warranties of Members. Each Member and each other Person who acquires a Member Interest in the Company hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) the Company that: (i) if it is an “accredited investor” (as defined in Rule 501 under the Securities Act) and has such Member knowledge and experience in financial and business matters and is a natural person, he or she has capable of evaluating the capacity to execute merits and agree to this Agreement risks of an investment in the Company and to perform its obligations hereunder, making an informed investment decision with respect thereto; (ii) if such Member it is a “qualified purchaser” (as defined in Rule 2a51 under the Investment Company Act); (iii) it is not a natural person, it is duly organized, validly existing and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act or any state securities law, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the risks and merits of an investment in Holdings LLC and has had an opportunity to ask questions and request information concerning Holdings LLC; (v) such Member it is able to bear the economic and financial risk of an investment in Holdings LLC the Company for an indefinite period of time; (viv) such it is acquiring a Member is either (a) an “accredited investor” Interest for investment only and not with a view to, or is “sophisticated” (as each such term is used for resale in Regulation D under connection with, any distribution to the Securities Act) public or (b) a non-U.S. person (as such term is used in Regulation S under the Securities Act)public offering thereof; (vi) it understands and acknowledges that the Member Interests have not been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the provisions of this Agreement have been complied with; (vii) the execution, delivery and performance of this Agreement have been duly authorized by such Member Person and do not require such Member Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Member Person or other governing documents or any agreement or instrument to which such Member Person is a party or by which such Member is bound; and (viiviii) this Agreement is valid, binding and enforceable against such Member in accordance with its terms, except as the enforceability thereof may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor’s rights and remedies generally.

Representations and Warranties of Members. Each Member hereby By execution and delivery of this Agreement, each of the Members represents and warrants that such Member (a) is authorized, and has all requisite power and authority, under such Member’s charter and by-laws or other articles or agreements of organization and the Laws of the jurisdiction where such Member is incorporated or otherwise organized, to Holdings LLC become a Member, that this Agreement has been duly and acknowledges validly executed by such Member and that this Agreement constitutes a valid and binding obligation of such Member, (solely individually b) is able and is prepared to bear the economic risk of making the Capital Contributions contemplated hereby with respect to such Member Member’s Membership Interests and not jointly the holding by the Company of its assets and severally) that: (i) if such Member is a natural person, he or she has the capacity to execute and agree to this Agreement properties as contemplated hereby and to perform its obligations hereundersuffer any loss up to the amount of such Member’s liability in connection with the investment by the Company in such assets and properties, (iic) if such Member is not a natural person, it is duly organized, validly existing and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units Membership Interests solely for the such Member’s own account as an for investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act with no present intention of distributing or reselling all or any state securities lawpart thereof, (d) has sufficient knowledge and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) experience in financial and business matters so that such Member is familiar with capable of evaluating, and such Member has evaluated, the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating making the Capital Contribution hereby contemplated and the risks of the investment in the Company as contemplated hereby, (e) understands that this Agreement limits such Member’s ability to withdraw, transfer or dispose of its Membership Interests, (f) has carefully considered and merits has, to the extent such Member believes such discussion necessary, discussed with legal, regulatory, tax, accounting and financial advisers and other advisers, the Group Companies’ business plans, financing needs, technology and operations as well as the suitability of an investment in Holdings LLC the Company for such Member’s particular tax and financial situation and has determined that making the Capital Contributions and acquiring the Membership Interests are a suitable investment for such Member, (g) has had an the opportunity to conduct its own review of the Company’s business prospects and arrangements, has been provided all materials the Member requested from the Company regarding its business, has been provided access to ask questions of and request information concerning Holdings LLC; receive answers from the Company’s management in the course of its due diligence review of the Company, has received answers to all such questions presented to the Company’s management and has completed its due diligence review, (vh) is relying solely upon such Member is able Member’s own due diligence review, an in reliance solely upon such independent review, has decided to bear make the economic Capital Contributions and financial risk of an investment in Holdings LLC for an indefinite period of time; acquire the Membership Interests contemplated hereby, and (vii) such Member is either (a) an “accredited investor” or is “sophisticated” (as each such term is used in Regulation D under the Securities Act) or (b) a non-U.S. person (as such term is used in Regulation S under the Securities Act); (vi) the execution, delivery and performance of this Agreement have been duly authorized by such Member and do not require such Member to obtain any consent or approval that has not been obtained and do not contravene relied upon any representation by, or result in a default under other information (whether oral or written) from the Company, any provision Manager, any other Member, any other Group Company or any Affiliate or Representative of any law or regulation applicable to such Member or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound; and (vii) this Agreement is valid, binding and enforceable against such Member in accordance with its termsof the foregoing persons.

Representations and Warranties of Members. Each Member and each other Person who acquires a Member Interest in the Company hereby represents and warrants to Holdings LLC and acknowledges (solely individually with respect to such Member and not jointly and severally) the Company that: (i) if it is an "accredited investor" (as defined in Rule 501 under the Securities Act) and has such Member knowledge and experience in financial and business matters and is a natural person, he or she has capable of evaluating the capacity to execute merits and agree to this Agreement risks of an investment in the Company and to perform its obligations hereunder, making an informed investment decision with respect thereto; (ii) if such Member it is a "qualified purchaser" (as defined in Rule 2a51 under the Investment Company Act); (iii) it is not a natural person, it is duly organized, validly existing and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act or any state securities law, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the risks and merits of an investment in Holdings LLC and has had an opportunity to ask questions and request information concerning Holdings LLC; (v) such Member it is able to bear the economic and financial risk of an investment in Holdings LLC the Company for an indefinite period of time; (viv) such it is acquiring a Member is either (a) an “accredited investor” Interest for investment only and not with a view to, or is “sophisticated” (as each such term is used for resale in Regulation D under connection with, any distribution to the Securities Act) public or (b) a non-U.S. person (as such term is used in Regulation S under the Securities Act)public offering thereof; (vi) it understands and acknowledges that the Member Interests have not been registered under the securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the provisions of this Agreement have been complied with; (vii) the execution, delivery and performance of this Agreement have been duly authorized by such Member Person and do not require such Member Person to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any decree, order, law or regulation applicable to such Member Person or other governing documents or any agreement or instrument to which such Member Person is a party or by which such Member is bound; and (viiviii) this Agreement is valid, binding and enforceable against such Member in accordance with its terms, except as the enforceability thereof may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally.

Representations and Warranties of Members. Each Member hereby represents and warrants to Holdings LLC the Company and acknowledges (solely individually with respect to such Member and not jointly and severally) that: (i) if such Member is a natural person, he or she has the capacity to execute knowledge and agree to this Agreement experience in financial and to perform its obligations hereunder, (ii) if such Member is not a natural person, it is duly organized, validly existing business matters and in good standing under the laws of the state of its organization and has full organizational power to, execute and agree to this Agreement and to perform its obligations hereunder; (iii) such Member is acquiring or has acquired its Units for the Member’s own account as an investment and without an intent to distribute such Units; (iii) such Member understands that the Units have not been registered under the Securities Act or any state securities law, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements; (iv) such Member is familiar with the risks associated with owning an interest in entities such as Holdings LLC, is capable of evaluating the merits and risks and merits of an investment in Holdings LLC the Company and making an informed investment decision with respect thereto; (ii) such Member has reviewed and evaluated all information necessary to assess the merits and risks of his, her or its investment in the Company and has had an opportunity answered to ask its satisfaction any and all questions and request information concerning Holdings LLCregarding such information; (viii) such Member is able to bear the economic and financial risk of an investment in Holdings LLC the Company for an indefinite period of time; (viiv) such Member is either acquiring Membership Interests in the Company for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (av) an “accredited investor” or is “sophisticated” (as each such term is used the Membership Interests in Regulation D the Company have not been registered under the Securities Act) or (b) a non-U.S. person (as such term is used in Regulation S securities laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under applicable securities laws and the Securities Act)provisions of this Agreement have been complied with; (vi) the execution, delivery and performance of this Agreement have been duly authorized by such Member and do not require such Member to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any law or regulation applicable to such Member or other governing documents or any agreement or instrument to which such Member is a party or by which such Member is bound, and the Person executing this Agreement on behalf of such Member has been duly authorized to do so; and (vii) the determination of such Member to invest in the Company has been made by such Member independent of any other Member and independent of any statements or opinions as to the advisability of such purchase or as to the properties, business, prospects or condition (financial or otherwise) of the Company and its subsidiaries which may have been made or given by any other Member or by any Affiliate or agent of any other Member; 19 <PAGE> (viii) this Agreement is valid, binding and enforceable against such Member in accordance with its terms.; (ix) if a Member is a partnership, limited liability company or other entity classified as a partnership for federal income tax purposes, or a grantor trust (within the meaning of Sections 671-679 of the Code) or an S corporation (within the meaning of Section 1361 of the Code) (each, a "FLOW THROUGH ENTITY"), that either: (a) no Person will own, directly or indirectly through one or more flow-through entities, an interest in such Member where more than seventy percent (70%) of the value of the Person's interest in such Member is attributable to such Member's investment in the Company; or (b) if one or more Persons will own, directly or indirectly through one or more Flow-Through Entities, an interest in such Member where more than seventy percent (70%) of the value of the Person's interest in such Member is attributable to the Member's investment in the Company, neither the Member nor any such Person has or will have any intent or purpose of having such Person invest in the Company indirectly through Member in order to enable the Company to satisfy the 100-Member limitation in Treas. Reg. ss.1.7704-1(h) (the private placement safe harbor from publicly traded status); (x) unless such Member has notified the Board to the contrary, that such Member: (a) is a United States Person within the meaning of Section 7701 of the Code (i.e., is not any of the following (as defined in the Code): a nonresident alien individual, foreign partnership, foreign corporation, foreign estate, foreign trust, other foreign entity or organization, or grantor trust having a foreign person as an owner): (b) shall notify the Company within sixty (60) days of the date such Member ceases to be a United States Person; and (c) may be asked to recertify its non-foreign status at periodic intervals (and that this information may be disclosed to the Internal Revenue Service); (xi) if such Member will beneficially own ten percent (10%) or more of the Membership Interests in the Company, the Member is not an "investment company" as defined in the Investment Company Act nor is the Member itself relying on Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act as an exemption from classification as an "investment company;" and (xii) such Member is not holding and, for the term of the Company, will not hold "plan assets," as that term is defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations promulgated thereunder, including, without limitation, the Department of Labor Regulations Section 2510.3-101 (the "PLAN ASSET REGULATIONS"), and, consequently, the administration and management of the Company and the investment of the Company's assets are not, and will not be, subject to the fiduciary duty requirements of ERISA. SECTION 3.3