AND THAT SELLER IS NOT A "FOREIGN
PERSON" WITHIN THE MEANING OF SECTION 1445(B)(2) OF THE CODE;
(VI)
ANY CERTIFICATES, AFFIDAVITS OR FORMS NECESSARY TO COMPLY WITH OR
TO REDUCE STATE WITHHOLDING TAXES.
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(VII)
A COUNTERPART OF THE TRANSITION SERVICES AGREEMENT, DULY EXECUTED
BY SELLER;
(VIII)
A COUNTERPART OF THE SUPPLY AGREEMENT, DULY EXECUTED BY SELLER;
(IX)
A BILL OF SALE FOR THE TANGIBLE PERSONAL PROPERTY, IN THE FORM
ATTACHED AS EXHIBIT G, DULY EXECUTED BY SELLER;
(X)
ORIGINAL CERTIFICATES OF TITLE TO ALL VEHICLES INCLUDED IN THE
PURCHASED ASSETS, EXECUTED BY SELLER TO THE EXTENT NECESSARY TO REFLECT THE
ASSIGNMENT BY SELLER TO PURCHASER OF SUCH ASSETS;
(XI)
ARTICLES OF TRANSFER OR OTHER TRANSFER DOCUMENT EXECUTED BY
SELLER TO THE EXTENT SUCH TRANSFER DOCUMENT IS REQUIRED TO BE FILED WITH ANY
GOVERNMENTAL AUTHORITY UPON CONSUMMATION OF THE ACQUISITION; AND
(XII)
VALID AND EFFECTIVE ASSIGNMENT DOCUMENTATION, IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO PURCHASER, OF ANY RIGHTS TO THE INTELLECTUAL
PROPERTY THAT ARE INCLUDED IN THE PURCHASED ASSETS.
(E)
[INTENTIONALLY OMITTED]
(F)
REAL PROPERTY DELIVERIES.
SELLER SHALL HAVE DELIVERED TO
PURCHASER THE FOLLOWING:
(I)
SPECIAL WARRANTY DEEDS, GRANT DEEDS OR QUITCLAIM DEEDS, IN THE
FORM ATTACHED AS EXHIBIT H, DULY EXECUTED BY SELLER, IN FAVOR OF PURCHASER, IN
RECORDABLE FORM, TRANSFERRING GOOD AND VALID FEE SIMPLE TITLE TO THE REAL
PROPERTY TO BE CONVEYED BY SELLER TO PURCHASER HEREUNDER, SUBJECT ONLY TO
PERMITTED EXCEPTIONS, AND SUCH AFFIDAVITS OR OTHER CUSTOMARY INSTRUMENTS AS THE
TITLE COMPANY OR PURCHASER MAY REASONABLY REQUEST;
(II)
A COUNTERPART OF EACH ASSIGNMENT OF LEASE DULY EXECUTED BY
SELLER; AND
(III)
IF APPLICABLE, DULY COMPLETED AND EXECUTED REAL ESTATE TAX
DECLARATIONS.
(G)
TITLE COMPANY DELIVERIES.
THE TITLE COMPANY SHALL HAVE DELIVERED
TO PURCHASER (AND IF APPLICABLE, PURCHASER'S LENDERS) AN OWNER'S (OR LENDER'S)
FORM OF TITLE INSURANCE POLICY (OR A MARK-UP COMMITMENT THEREFOR) IN THE FORM OF
THE TITLE COMMITMENTS (EACH, A "TITLE POLICY"), IN THE AMOUNT OF THE PURCHASE
PRICE APPLICABLE TO THE REAL PROPERTY INSURED BY SUCH TITLE POLICY, INSURING
THAT FEE SIMPLE TITLE TO THE REAL PROPERTY IS VESTED IN PURCHASER OR ITS NOMINEE
SUBJECT ONLY TO THE PERMITTED EXCEPTIONS.
(H)
CONSENTS.
SELLER SHALL HAVE OBTAINED THE THIRD PARTY CONSENTS TO
THE ASSIGNMENT OF THE CONTRACTS LISTED ON SCHEDULE 6.3(H) AND THE PLEDGES OF
LEASEHOLD INTERESTS AS REASONABLY REQUESTED BY KERR AND PURCHASER PURSUANT TO
SECTION 5.3.
41
(I)
FINANCING.
KERR AND PURCHASER SHALL HAVE RECEIVED THE FINANCING
CONTEMPLATED BY EITHER OR BOTH OF THE COMMITMENT LETTERS REFERRED TO IN SECTION
4.7.
(J)
LIENS.
SELLER SHALL HAVE REMOVED ALL LIENS ON THE PURCHASED
ASSETS OTHER THAN PERMITTED LIENS.
(K)
EVIDENCE OF PATENT TRANSFER.
SELLER SHALL HAVE PROVIDED EVIDENCE
IN A FORM REASONABLY SATISFACTORY TO PURCHASER THAT ALL PATENTS REFERRED TO IN
SECTION 5.12 HAVE BEEN TRANSFERRED TO SELLER PURSUANT TO SECTION 5.12.
ARTICLE VII
TERMINATION; EFFECT OF TERMINATION
7.1
Termination of Agreement.
This Agreement may be terminated and
the Acquisition may be abandoned at any time prior to the Closing:
(A)
BY