Common use of Representations and Warranties of the Members Clause in Contracts

Representations and Warranties of the Members. Each of the Members represents and warrants to the Company and the other Members with respect to himself as follows: (a) Such Member is the lawful owner of and has the full right, power and authority to sell, transfer and deliver the Membership Interest of the Company set forth next to his name on Schedule A hereto and the sale, transfer and delivery of such Membership Interests of the Company in accordance therewith will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement. (b) The Membership Interests of the Company owned by such Member as set forth on Schedule A hereto have been duly authorized and are fully paid and non assessable. There are no existing options, warrants, calls or commitments on the part of any Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company or such Member. (c) Such Member has the right and power to enter into this Operating Agreement, and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation of such Member. No consent of any person not a party to this Operating Agreement and no consent of any governmental authority is required to be obtained on the part of such Member in connection with or resulting from the execution or performance of this Operating Agreement.

Representations and Warranties of the Members. Each of the Members Member hereby represents and warrants to the Company and the other Members with respect to himself as follows: acknowledges that: (a) Such such Member has such knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (b) such Member is able to bear the lawful owner economic and financial risk of and has the full right, power and authority to sell, transfer and deliver the Membership Interest of an investment in the Company set forth next to his name on Schedule A hereto and the sale, transfer and delivery for an indefinite period of time; (c) such Membership Interests of Member is acquiring Units in the Company for investment only and not with a view to, or for resale in accordance therewith will transfer good connection with, any distribution to the public or public offering thereof; (d) the Units (and marketable title thereto free underlying membership interests) in the Company have not been registered under the securities laws of any jurisdiction and clear cannot be disposed of all liens, encumbrances, claims or rights of third parties of every kind unless they are subsequently registered and/or qualified under applicable securities laws and nature whatsoever, subject only to the provisions of this Operating Agreement. Agreement have been complied with; (bd) The Membership Interests the execution, delivery and performance by such Member of this Agreement has been duly authorized by such Member and does not require such Member to obtain any consent or approval that has not been obtained and do not contravene or result in a default in any material respect 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; (e) the determination of such Member to purchase or receive Units in the Company has been made by such Member independently of any other Member and independently of any statements or opinions as to the advisability of such purchase or receipt as to the properties, business, prospects or condition (financial or otherwise) of the Company owned by such Member as set forth on Schedule A hereto that may have been duly authorized and are fully paid and non assessable. There are no existing options, warrants, calls made or commitments on the part given by any other Member or by any agent or employee of any Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of other Member; and (f) this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company or such Member. (c) Such Member has the right is valid, binding and power to enter into this Operating Agreement, and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation of such Member. No consent of any person not a party to this Operating Agreement and no consent of any governmental authority is required to be obtained on the part of enforceable against such Member in connection accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or resulting from the execution affecting creditors’ rights or performance general equity principles (regardless of this Operating Agreementwhether considered at law or in equity).

Representations and Warranties of the Members. Each As of the Effective Date, each of the Members represents and warrants as of the Effective Date to the Company and each of the other Members with respect to himself and the Company as follows: (a) The Units being acquired by such Member are being purchased for such Member’s own account and not with a view to, or for sale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Such Member is understands that such Units have not been registered under the lawful owner Securities Act or any state securities laws by reason of their contemplated issuance in transactions exempt from the registration and has prospectus delivery requirements thereof and that the full right, power and authority to sell, transfer and deliver the Membership Interest reliance of the Company set forth next to his name on Schedule A hereto and others upon such exemptions is predicated in part by the sale, transfer representations and delivery warranties of such Membership Interests of the Company Member contained in accordance therewith will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement. (b) Such Member has the requisite power and authority (whether corporate or otherwise) and legal capacity to enter into, and to carry out its obligations under, this Agreement. (c) The Membership Interests of the Company owned execution and delivery by such Member as set forth on Schedule A hereto of this Agreement and the consummation by such Member of the transactions contemplated by this Agreement have been duly authorized and are fully paid and non assessable. There are no existing options, warrants, calls or commitments before the Effective Date by all necessary action on the part of any Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company or such Member. (cd) Such Member has the right and power to enter into this Operating Agreement, and this Operating This Agreement has been fully duly executed and delivered by such Member and constitutes the a valid and binding obligation enforceable against such Member in accordance with its terms. (e) Such Member is not subject to, 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. No ’s assets would be created, by such Member’s execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement, except for such agreements as to which a Member has previously obtained the consent of the other party or parties thereto. (f) No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any person public body, court, third party or authority is necessary on such Member’s part, which has not previously been obtained by such Member for the consummation of the transactions contemplated by this Agreement. (g) No Person has or will have, as a party to this Operating Agreement and no consent result of any governmental authority is required to be obtained on act or omission by such Member, any right, interest or valid claim against the part of such 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 or resulting from the execution or performance of transactions contemplated by this Operating 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.

Representations and Warranties of the Members. Each As of the date of exercise of any rights, and as of the date of closing of any sale of any Member’s Membership Interest pursuant to this Article 10, each of the Members represents and warrants to the Company and the other Members with respect to himself itself as follows: (a) Such Member is the lawful owner of and has the full right, power and authority to sell, transfer Transfer and deliver the such Member’s Membership Interest of the Company set forth next which it purports to his name on Schedule A hereto own, and the sale, transfer Transfer and delivery of such Membership Interests of the Company Interest in accordance therewith will transfer Transfer good and marketable title thereto free and clear of all liens, encumbrances, claims Claims or rights right of the third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement.; (b) The Membership Interests of the Company Interest owned by such Member as set forth on Schedule A hereto have has been duly authorized and are is fully paid and non non-assessable. There are no existing options, warrants, calls or commitments on the part of any Member or other Person relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating AgreementInterest. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company Interest or such Member.; (c) Such Member has the right and power to enter into this Operating Agreement, Agreement and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation of such Member. No consent of any person Person not a party to this Operating Agreement and no consent of any governmental authority Governmental Authority is required to be obtained on the part of such Member in connection with or resulting from the execution or performance of this Operating Agreement; and Any Member selling its Membership Interest under this Section 10 will deliver to the other Member a certificate dated as of the Closing Date of the applicable sale making the foregoing representations and warranties to such other Member as of the applicable Closing Date.

Representations and Warranties of the Members. Each of the Members Member hereby represents and warrants to the Company and each other Member that the other Members with respect to himself following statements 953834.04-WILSR01A - MSW are and shall be true and correct from and after the date of such Member’s admission as followsa Member of the Company: (a) Such such Member is duly incorporated, organized, or formed (as applicable), validly existing, and in good standing under the lawful owner Law of the jurisdiction of its incorporation, organization, or formation; if required by applicable Law, such Member is duly qualified and in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of incorporation, organization, or formation; and such Member has the full right, power and authority to sell, transfer execute and deliver the Membership Interest this Agreement and to perform its obligations hereunder, and all necessary actions by and consents of the Company set forth next to his name on Schedule A hereto board of directors, stockholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and the sale, transfer and delivery of such Membership Interests of the Company in accordance therewith will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions performance of this Operating Agreement.Agreement by such Member have been duly taken or obtained; (b) The Membership Interests of the Company owned by such Member as set forth on Schedule A hereto have been has duly authorized and are fully paid and non assessable. There are no existing options, warrants, calls or commitments on the part of any Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company or such Member. (c) Such Member has the right and power to enter into this Operating Agreement, and this Operating Agreement has been fully executed and delivered this Agreement and constitutes each of the other documents that this Agreement requires or contemplates that such Member will execute, and they each constitute the valid and binding obligation of such Member. No consent of any person not a party to this Operating Agreement and no consent of any governmental authority is required to be obtained on the part of , enforceable against such Member in connection accordance with their respective terms (except as may be limited by bankruptcy, insolvency, or resulting from similar Laws of general application and by the execution effect of general principles of equity, regardless of whether considered at law or in equity); and (c) such Member’s authorization, execution, delivery, and performance of this Operating AgreementAgreement does not and will not (i) conflict with, or result in a breach, default, or violation of, or result in a default or the creation of an Encumbrance, or give rise to any right of termination, cancellation, or acceleration of any of the terms, conditions or provisions of (A) the Organizational Documents of such Member, (B) any material Contract to which such Member is a party or by which it or its assets are bound, or (C) any Law or arbitral award to which such Member is subject; or (ii) require any consent, approval, or authorization from, filing or registration with, or notice to, any Governmental Authority or other Person, unless such requirement has already been satisfied.

Representations and Warranties of the Members. Each of the Members By executing and delivering this Agreement, each Member hereby represents and warrants to the Company and each other Member that the other Members with respect following statements are true and correct as of the date hereof, as of the date such Member is admitted to himself the Company and as followsof the date(s) such Member is acquires Units and/or makes a Capital Contribution: (a) Such Member is the lawful owner of Member’s Units are being held for its own account solely for investment and has the full right, power not with a view to resale or distribution thereof other than in compliance with all applicable securities laws and authority to sell, transfer and deliver the Membership Interest of the Company set forth next to his name on Schedule A hereto and the sale, transfer and delivery of such Membership Interests of the Company in accordance therewith will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement. (b) The Membership Interests of the Company owned by If such Member as set forth on Schedule A hereto have been is an entity, such Member is duly authorized organized and are fully paid and non assessablevalidly existing under the laws of its jurisdiction of organization. There are no existing optionsIf such Member is a natural person, warrants, calls or commitments on the part of any such Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company or such Memberhas full legal capacity. (c) 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 a valid and binding agreement of such Member, enforceable against such Member in accordance with its terms, subject to the Enforceability Exceptions. (d) Such Member is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act or has disclosed in writing that such Member is not an accredited investor in a signed writing delivered to the Company. Such Member is familiar with the business, financial condition, properties, operations and prospects of Holdco, its Subsidiaries and the Company, and has asked such questions of the Company and the Manager and conducted such due diligence concerning such matters and concerning the Class A Units, this Agreement and the Holdco Agreement as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction. Such Member has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the right Manager, the Company, Holdco or any of its Subsidiaries or any director, officer, employee, agent or Affiliate of such Persons, other than as set forth in this Agreement. Such Member has such knowledge and power to enter into experience in financial and business matters that 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 Operating 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 this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation risk of losing its entire investment in the Company. Such Member is able to bear the economic risk of such Member. No consent of any person not a party to this Operating Agreement investment; and no consent of any governmental authority is required to be obtained on the part of 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 connection with or resulting from the execution or performance Company and holding Class A Units in light of this Operating Agreementits particular tax and financial situation, and has determined that the Class A Units are a suitable investment for such Member.

Representations and Warranties of the Members. (a) Each of the Members Member represents and warrants to the Company and the other Members with respect to himself as follows: (ai) 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. (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 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 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, to such Member’s knowledge, 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 Agreement, 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 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 the lawful owner of and has the full right, power and authority to sell, transfer and deliver the Membership Interest compliance with all applicable provisions of the Company set forth next to his name on Schedule A hereto and the saleUSA Patriot Act of 2001, transfer and delivery of such Membership Interests of the Company in accordance therewith will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions of this Operating AgreementPub. L. No. 107-56. (b) The Membership Interests In addition to the representations and warranties set forth above, DD-CTP represents and warrants to BH as follows: (i) DD-CTP is a limited liability company currently existing pursuant to Articles of Organization filed with the Secretary of State of Florida, and that certain Operating Agreement dated September , 2009 (collectively, the “Organizational Documents”), and a true and correct copy of the Company owned by such Member as set forth on Schedule A hereto Organizational Documents have been duly authorized provided to counsel for BH. (ii) The aforementioned Organizational Documents have not been terminated nor modified or amended and are fully paid continue to be in full force and non assessable. There are no existing options, warrants, calls effect. (iii) No consent or commitments on the part authorization of any Member relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements other persons or restrictions of any kind entities, other than those set forth in whose consent has been secured, is required for DD-CTP to enter into this Operating Agreement affect 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 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ who have the rights power to direct the management and policies of any such Membership Interests of the Company or such MemberDD-CTP. (c) Such Member has the right DD-CTP hereby covenants and power agrees that DD-CTP shall not transfer all or any part of its Interest to enter into this Operating Agreementany Person, and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation if, as a result of such Member. No consent 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 person not a party to 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 Operating Agreement and no consent the termination and dissolution of DD-CTP and/or the Company or any governmental authority is required to be obtained on the part of such Member in connection with or resulting from the execution or performance of this Operating Agreementother Member.

Representations and Warranties of the Members. Each of the Members represents and warrants to the Company and the other Members with respect to himself as follows: (a) 5.04.1 Such Member is the lawful owner of and has the full right, power and authority to sell, transfer and deliver the Membership Member Interest of the Company set forth next to his name on Schedule A hereto and the sale, transfer and delivery of such Membership Member Interests of the Company in accordance therewith with this Operating Agreement will transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights of third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement. (b) 5.04.2 The Membership Member Interests of the Company owned by such Member as set forth on Schedule A hereto have been duly authorized duly-authorized-and are fully paid and non assessable. There are no existing options, warrants, calls or commitments on the part of any Member relating to such Membership Member Interests of the Company which will not be terminated concurrently with the execution of this Operating Agreement. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Member Interests of the Company or such Member. (c) 5.04.3 Such Member has the right and power to enter into this Operating Agreement, and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation of such Member. No consent of any person not a party to this Operating Agreement and no consent of any governmental authority is required to be obtained on the part of such Member in connection with or resulting from the execution or performance of this Operating Agreement.

Representations and Warranties of the Members. Each As of the date of exercise of any rights, and as of the date of closing of any sale of any Member’s Membership Interest pursuant to this Article 10, each of the Members represents and warrants to the Company and the other Members with respect to himself itself as follows: (a) Such Member is the lawful owner of and has the full right, power and authority to sell, transfer Transfer and deliver the such Member’s Membership Interest of the Company set forth next Interest, which it purports to his name on Schedule A hereto own, and the sale, transfer Transfer and delivery of such Membership Interests of the Company Interest in accordance therewith will transfer Transfer good and marketable title thereto free and clear of all liens, encumbrances, claims or rights right of the third parties of every kind and nature whatsoever, subject only to the provisions of this Operating Agreement.; (b) The Membership Interests of the Company Interest owned by such Member as set forth on Schedule A hereto have has been duly authorized and are fully paid and non assessableauthorized. There are no existing options, warrants, calls or commitments on the part of any Member or other Person relating to such Membership Interests of the Company which will not be terminated concurrently with the execution of this Operating AgreementInterest. No voting agreements or restrictions of any kind other than those set forth in this Operating Agreement affect the rights of any such Membership Interests of the Company Interest or such Member.; (c) Such Member has the right and power to enter into this Operating Agreement, Agreement and this Operating Agreement has been fully executed and delivered and constitutes the valid and binding obligation of such Member. No consent of any person Person not a party to this Operating Agreement and no consent of any governmental authority Governmental Authority is required to be obtained on the part of such Member in connection with or resulting from the execution or performance of this Operating Agreement; and (d) Any Member selling its Membership Interest under this Section 10 will deliver to the other Member a certificate dated as of the closing date of the applicable sale making the foregoing representations and warranties to such other Member as of the applicable closing date.