& JONES LLP, COUNSEL TO SELLER, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO BUYER, CONFIRMING (A) THE DUE INCORPORATION
OF SELLER, THE CORPORATE POWER OF SELLER, THE DUE AUTHORIZATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE CLOSING DOCUMENTS TO WHICH SELLER IS A PARTY
BY SELLER, NON-CONTRAVENTION OF AGREEMENTS AND LAW, ALL NECESSARY CONSENTS BEING
OBTAINED, AND THE ENFORCEABILITY OF THIS AGREEMENT AND SUCH CLOSING DOCUMENTS
AGAINST SELLER, (B) THE DUE ORGANIZATION OF MBCR, THE DUE AUTHORIZATION AND
VALID ISSUANCE OF ITS MEMBERSHIP INTERESTS, THE RECORD OWNERSHIP OF SUCH
INTERESTS, THE ABSENCE OF OPTIONS, WARRANTS AND RIGHTS TO PURCHASE SUCH
INTERESTS OR ANY PREEMPTIVE RIGHTS IN RESPECT THEREOF, THE NONCONTRAVENTION OF
AGREEMENTS AND LAW ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THAT UPON CLOSING, BUYER WILL OWN 100% OF THE OUTSTANDING
MEMBERSHIP INTERESTS IN MBCR, FREE AND CLEAR OF ANY CLAIMS OF ANY THIRD PARTY,
AND (C) SUCH OTHER MATTERS AS BUYER MAY REASONABLY REQUEST, SUBJECT TO USUAL AND
CUSTOMARY QUALIFICATIONS AND BASED ON COUNSEL'S KNOWLEDGE AND ON SELLER'S AND
MBCR'S CERTIFICATION OF FACTS MATERIAL TO THE OPINION,
A FIRPTA AFFIDAVIT, IN THE FORM ATTACHED HERETO AS EXHIBIT "C",
CLOSING INSTRUCTIONS, WITH ATTACHED SETTLEMENT STATEMENT TO BE PREPARED BY THE
TITLE INSURANCE COMPANY, CONSISTENT WITH THE TERMS OF THIS AGREEMENT ("CLOSING
INSTRUCTIONS"),
A RENT ROLL FOR THE PROPERTY, CERTIFIED BY SELLER TO BE TRUE AND CORRECT AS OF A
DATE NO EARLIER THAN FIVE (5) BUSINESS DAYS PRIOR TO THE CLOSING DATE,
ANY USUAL AND CUSTOMARY AFFIDAVITS AND CERTIFICATES REQUIRED BY THE TITLE
INSURANCE COMPANY,
A CERTIFICATE STATING THAT THE REPRESENTATIONS AND WARRANTIES OF SELLER
CONTAINED IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (OR,
WITH RESPECT TO REPRESENTATIONS AND WARRANTIES SEPARATELY QUALIFIED BY
MATERIALITY STANDARDS, TRUE IN ALL RESPECTS) AS OF THE DATE OF CLOSING (WITH
APPROPRIATE MODIFICATIONS OF THOSE REPRESENTATIONS AND WARRANTIES MADE IN
SECTION 7.1 TO REFLECT ANY CHANGES RESULTING FROM ACTIONS MADE IN COMPLIANCE
WITH SECTION 9.1) OR IDENTIFYING ANY REPRESENTATION OR WARRANTY WHICH IS NOT, OR
NO LONGER IS, TRUE AND CORRECT IN ANY MATERIAL RESPECT AND EXPLAINING THE
CHANGE; PROVIDED, HOWEVER, THAT (1) THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN CLAUSES (I)-(V), (VI)(B), (VII)(B), (VIII)-(XII), (XVII)-(XXI),
(XXV)-(XXVII), (XXIX)(B) AND (XXX) OF SECTION 7.1(A) (THE "PERMANENT
REPRESENTATIONS") MAY NOT BE SO IDENTIFIED BY SELLER AS REPRESENTATIONS OR
WARRANTIES THAT ARE NO LONGER TRUE AND CORRECT, SELLER HEREBY AGREEING THAT IF
ANY OF THE PERMANENT REPRESENTATIONS IS NOT TRUE AND CORRECT AT THE CLOSING,
31
SELLER SHALL BE DEEMED TO BE IN BREACH OF THIS AGREEMENT AND BUYER SHALL HAVE
ALL RIGHTS AND REMEDIES SPECIFIED HEREIN FOR SUCH BREACH BY SELLER, AND (2) IF
ANY OF THE OTHER REPRESENTATIONS OR WARRANTIES MADE BY SELLER IN THIS AGREEMENT
IS NOT TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT CLOSING WITHOUT CHANGE SINCE
THE DATE HEREOF, EXCEPT CHANGES OCCASIONED BY ACTS, CONDUCT AND OCCURRENCES
PERMITTED UNDER THIS AGREEMENT, AND CHANGES WHICH DO NOT HAVE A MATERIAL ADVERSE
EFFECT ON THE