APPROVALS OF THE GOVERNMENTAL ENTITIES REQUIRED OF
SELLER AND/OR THE COMPANIES, AND THE RECEIPT OF ANY THIRD-PARTY APPROVALS AND
PERMITS SET FORTH IN SCHEDULE 3.3;
(I)
A WRITTEN OPINION FROM ANDREWS KURTH LLP, ADDRESSED TO BUYER,
DATED AS OF THE CLOSING DATE, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS
EXHIBIT B;
(J)
A DULY COMPLETED AND EXECUTED CERTIFICATION OF NON-FOREIGN AND
NON-DISREGARDED ENTITY STATUS PURSUANT TO SECTION 1.1445-2(B)(2) OF THE TREASURY
REGULATIONS;
(K)
A CERTIFICATE FROM AN AUTHORIZED REPRESENTATIVE OF SELLER, DATED
AS OF THE CLOSING DATE, ATTACHING A COMPLETE COPY OF THE LIMITED LIABILITY
COMPANY AGREEMENT OF EACH OF THE COMPANIES AS IN EFFECT ON THE CLOSING DATE;
(L)
A DULY COMPLETED AND EXECUTED CALIFORNIA REAL ESTATE WITHHOLDING
CERTIFICATE (FORM 593-C) WITH RESPECT TO THE REAL PROPERTY AND THE REAL PROPERTY
INTERESTS THAT ARE THE SUBJECT OF THE REAL PROPERTY AGREEMENTS; AND
(M)
SUCH OTHER AGREEMENTS, CONSENTS, DOCUMENTS AND INSTRUMENTS AS ARE
REASONABLY REQUIRED TO BE DELIVERED BY SELLER AT OR PRIOR TO THE CLOSING DATE
PURSUANT TO THIS AGREEMENT OR OTHERWISE REASONABLY REQUIRED IN CONNECTION
HEREWITH, INCLUDING ALL SUCH OTHER INSTRUMENTS AS BUYER OR ITS COUNSEL MAY
REASONABLY REQUEST IN CONNECTION WITH THE PURCHASE OF THE LLC INTERESTS
CONTEMPLATED HEREBY.
ARTICLE III
REPRESENTATIONS AND WARRANTIES RELATING TO SELLER
Seller represents and warrants to Buyer that:
Section 3.1
Due Organization and Power of Seller.
Seller is duly
organized, validly existing and in good standing under the laws of Delaware and
has the requisite limited liability company power and authority to conduct its
business as it is now being conducted, and to own, lease and operate its assets
and properties.
Seller is duly authorized, qualified or licensed to do business
as a foreign limited liability company and is in good standing in every
jurisdiction wherein, by reason of its ownership of its LLC Interests, the
failure to be so qualified would prevent or delay the Closing.
Section 3.2
Authorization and Validity of Agreement.
This Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all requisite limited liability company action by Seller, and
Seller has full limited liability company power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
This Agreement
has been duly executed and delivered by Seller and constitutes a valid and
legally binding obligation of Seller enforceable in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency or other
similar Laws affecting the enforcement of creditors' rights generally and
subject to general principles of equity.
Section 3.3
Non-Contravention.
The execution and delivery by Seller of
this Agreement does not, and the consummation by Seller of the transactions
contemplated hereby
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will not, (a) violate or conflict with any provision of the certificate of
formation or limited liability company agreement of Seller or (b) assuming that
all Permits and Third-Party Approvals set forth in Schedule 3.3 hereto, or in
the documents identified therein, have been obtained or made, (i) violate any
Law or Order