THE MEMBER BY VIRTUE THEREOF OR A SPOUSE HAVING A COMMUNITY PROPERTY
OR SIMILAR INTEREST UNDER APPLICABLE LAW.)
EACH MEMBER ALSO REPRESENTS THAT IT
HAS THE BUSINESS AND FINANCIAL KNOWLEDGE AND EXPERIENCE NECESSARY TO ACQUIRE ITS
INTEREST ON THE TERMS CONTEMPLATED HEREIN AND THAT IT HAS THE ABILITY TO BEAR
THE RISKS OF SUCH INVESTMENT (INCLUDING THE RISK OF SUSTAINING A COMPLETE LOSS
OF ALL ITS CAPITAL CONTRIBUTIONS) WITHOUT THE NEED FOR THE INVESTOR PROTECTIONS
PROVIDED BY THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
[B]
EXCEPT TO THE EXTENT SET FORTH IN A NOTICE PROVIDED TO THE
COMPANY, EACH MEMBER HEREBY REPRESENTS THAT ALLOCATIONS, DISTRIBUTIONS AND OTHER
PAYMENTS TO SUCH MEMBER BY THE COMPANY ARE NOT SUBJECT TO TAX WITHHOLDING UNDER
THE CODE.
EACH MEMBER SHALL PROMPTLY NOTIFY THE COMPANY IN THE EVENT THAT ANY
ALLOCATION, DISTRIBUTION OR OTHER PAYMENT PREVIOUSLY EXEMPT FROM SUCH
WITHHOLDING BECOMES OR IS ANTICIPATED TO BECOME SUBJECT THERETO.
[C]
EACH MEMBER ACKNOWLEDGES THAT CERTAIN PROVISIONS OF THIS AGREEMENT
(INCLUDING SECTIONS 6.2 AND 9.1) HAVE THE EFFECT OF LIMITING THE FIDUCIARY
DUTIES OR OBLIGATIONS OF SOME OR ALL MEMBERS TO THE COMPANY AND THE OTHER
MEMBERS UNDER APPLICABLE LAW.
EACH MEMBER HEREBY REPRESENTS THAT IT HAS
CAREFULLY CONSIDERED AND FULLY UNDERSTANDS EACH SUCH PROVISION AND HAS MADE AN
INFORMED DECISION TO CONSENT THERETO.
[D]
EACH MEMBER HEREBY REPRESENTS THAT: (I) IT IS A CORPORATION OR
LIMITED LIABILITY COMPANY VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF ITS JURISDICTION OF INCORPORATION OR FORMATION AND HAS ALL REQUISITE POWER
AND AUTHORITY TO OWN, LEASE AND USE ITS ASSETS AND CARRY ON ITS BUSINESS AS AND
IN THE PLACES WHERE SUCH ASSETS ARE OWNED, LEASED OR USED OR SUCH BUSINESS IS
CONDUCTED; (II) IT HAS FULL CORPORATE OR LIMITED LIABILITY COMPANY POWER AND
AUTHORITY TO ENTER INTO THIS AGREEMENT AND CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY AND THIS AGREEMENT AND THE OTHER DOCUMENTS CONTEMPLATED BY
THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE CORPORATE OR LIMITED
LIABILITY COMPANY ACTION OF SUCH MEMBER, HAVE BEEN DULY EXECUTED AND DELIVERED
BY SUCH MEMBER AND CONSTITUTE THE VALID AND BINDING OBLIGATION OF SUCH MEMBER
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS; AND (III) IT IS AND SHALL BE DURING
THE TERM IN COMPLIANCE WITH ALL MATERIAL LAWS, STATUTES, RULES OR REGULATIONS
APPLICABLE TO SUCH MEMBER OR ITS ASSETS OR BUSINESS AND IT SHALL NOT BE UNDER
INDICTMENT OR GRAND JURY SUBPOENA WITH RESPECT TO ANY CRIMINAL INVESTIGATION
PURSUANT TO WHICH IT HAS BEEN IDENTIFIED AS A TARGET.
22
6.13
AVOIDANCE OF PUBLICLY TRADED PARTNERSHIP STATUS.
[A]
EXCEPT TO THE EXTENT OTHERWISE SET FORTH IN A NOTICE PROVIDED TO
THE COMPANY, EACH MEMBER HEREBY REPRESENTS THAT AT LEAST ONE OF THE FOLLOWING
STATEMENTS WITH RESPECT TO SUCH MEMBER IS TRUE AND WILL CONTINUE TO BE TRUE
THROUGHOUT THE PERIOD DURING WHICH SUCH MEMBER HOLDS AN INTEREST:
[I]
SUCH MEMBER IS NOT A PARTNERSHIP, GRANTOR TRUST OR S CORPORATION
FOR FEDERAL INCOME TAX PURPOSES;
[II]
WITH REGARD TO EACH BENEFICIAL OWNER OF