warranties of the Transferors contained in this
Agreement and the instruments, documents, certificates and schedules delivered
herewith contain no untrue statement of a material fact and, when taken together
as a whole, do not omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BH INVESTOR
BH Investor hereby represents and warrants to Transferors as follows:
3.1
EXISTENCE.
BH Investor is a Delaware limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite power and authority to own its assets and to carry on its business
as it is now being conducted.
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3.2
POWER AND AUTHORITY.
(A)
BH INVESTOR HAS THE FULL LEGAL RIGHT, POWER AND AUTHORITY TO ENTER
INTO THIS AGREEMENT AND ALL AGREEMENTS AND OTHER DOCUMENTS EXECUTED AND
DELIVERED BY IT PURSUANT TO THIS AGREEMENT AND TO CONSUMMATE THE JOINT VENTURE
AND OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY;
(B)
BH INVESTOR HAS DULY AND PROPERLY TAKEN ALL ACTION REQUIRED BY LAW
AND ITS ORGANIZATIONAL DOCUMENTS TO AUTHORIZE THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND ANY RELATED DOCUMENTS AND THE CONSUMMATION OF
THE JOINT VENTURE; AND
(C)
THIS AGREEMENT AND ALL AGREEMENTS AND DOCUMENTS EXECUTED BY BH
INVESTOR AND DELIVERED TO TRANSFERORS IN CONNECTION HEREWITH HAVE BEEN DULY
EXECUTED AND DELIVERED BY BH INVESTOR AND CONSTITUTE THE LEGAL, VALID AND
BINDING OBLIGATIONS OF BH INVESTOR ENFORCEABLE AGAINST BH INVESTOR IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS.
3.3
NO VIOLATION.
The execution and delivery of this Agreement and the agreements executed and
delivered by BH Investor pursuant to this Agreement, do not, and the
consummation of the actions contemplated hereby or thereby will not, (i)
violate, contravene or conflict with any provision of the Organizational
Documents of BH Investor, (ii) violate, contravene or conflict with any
provisions of, result in the acceleration of any obligation under, constitute a
default or breach under, or give any right of termination or cancellation under,
any material mortgage, Lien, lease, agreement, rent, contract, note, instrument,
debenture, license, order, arbitration award, judgment or decree to which BH
Investor is a party or by which BH Investor is bound, or (iii) violate,
contravene or conflict with any law, rule or regulation to which BH Investor is
subject.
3.4
BROKERS AND FINDERS FEES.
No person is entitled to any fee from BH Investor as a broker or finder as a
result of creation of the joint venture.
3.5
NO BANKRUPTCY.
No bankruptcy, insolvency, rearrangement or similar action involving BH
Investor, whether voluntary or involuntary, is pending or threatened, and BH
Investor has never: (i) filed a voluntary petition in bankruptcy; (ii) been
adjudicated a bankrupt or insolvent or filed a petition or action seeking any
reorganization, arrangement, recapitalization, readjustment, liquidation,
dissolution or similar relief under any federal bankruptcy act or any other
laws; (iii) sought or acquiesced in the appointment of any trustee, receiver or
liquidator