SELLER IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE IV.
(C)
OBSERVANCE OF COVENANTS.
SELLER SHALL HAVE
PERFORMED AND OBSERVED, IN ALL MATERIAL RESPECTS, ALL COVENANTS AND AGREEMENTS
IN THIS AGREEMENT TO BE PERFORMED AND OBSERVED BY SELLER AS OF THE CLOSING DATE.
(D)
TITLE.
THE TITLE COMPANY SHALL HAVE ISSUED
OR SHALL BE PREPARED TO ISSUE, UPON PAYMENT OF THE APPLICABLE PREMIUMS THEREFOR,
THE TITLE POLICIES SUBJECT ONLY TO PERMITTED EXCEPTIONS. IT SHALL NOT BE A
CONDITION TO CLOSING THAT PURCHASER BE ABLE TO OBTAIN ANY ENDORSEMENTS OR
COVERAGES NOT SET FORTH IN THE DEFINITION OF "TITLE POLICY".
(E)
NO INJUNCTION.
NO ACTION, SUIT OR LEGAL OR
ADMINISTRATIVE PROCEEDINGS SHALL HAVE BEEN INSTITUTED BY OR BEFORE ANY AGENCY,
BUREAU, COMMISSION, COURT, DEPARTMENT, OFFICIAL, POLITICAL SUBDIVISION, TRIBUNAL
OR OTHER INSTRUMENTALITY OF ANY GOVERNMENT, WHETHER FEDERAL, STATE OR LOCAL,
DOMESTIC OR FOREIGN (REFERRED TO HEREIN, AS "GOVERNMENTAL AUTHORITY"), SEEKING
TO ENJOIN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND INTENDED TO OCCUR
AT THE CLOSING, OTHER THAN ANY SUCH PROCEEDING THAT HAS BEEN SUBSEQUENTLY
TERMINATED WITHOUT THE DESIRED RESULT OR HAS BEEN DISMISSED WITH PREJUDICE OR
ANY SUCH PROCEEDING INITIATED BY OR ON BEHALF OF PURCHASER OR ANY AFFILIATE OF
PURCHASER.
THE CONDITION SET FORTH IN THIS SECTION 7.1(E) SHALL NOT BE WAIVABLE
BY PURCHASER AND MUST BE FULFILLED ON THE CLOSING DATE UNLESS SELLER, IN ITS
SOLE DISCRETION, CONSENTS OTHERWISE.
(F)
TRANSACTIONS NOT PROHIBITED.
NO LAW,
STATUTE, RULE, REGULATION, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION OR OTHER ORDER ISSUED BY ANY COURT OF COMPETENT JURISDICTION
PREVENTING THE CONSUMMATION BY SELLER OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT TO OCCUR AT THE CLOSING SHALL BE IN EFFECT, OTHER THAN ANY SUCH ORDER
OBTAINED
35
or instituted by or on behalf of Purchaser or any entity controlling, controlled
by or under common control with Purchaser.
The condition set forth in this
Section 7.1(f) shall not be waivable by Purchaser and must be fulfilled on the
Closing Date unless Seller, in its sole discretion, consents otherwise.
(G)
LENDER CONSENTS /CLEAN LENDER ESTOPPELS.
(I) THE PARTIES SHALL HAVE OBTAINED THE LENDER CONSENTS (AND ANY LENDER CONSENTS
REQUIRED BY SECTION 4.7, IF ANY) AND (II) PURCHASER SHALL HAVE RECEIVED THE
CLEAN LENDER ESTOPPELS (AND ANY LENDER ESTOPPEL REQUIRED BY SECTION 4.7, IF
ANY); PROVIDED THAT SELLER MAY ELECT TO SATISFY THE REQUIREMENT OF THE CLEAN
LENDER ESTOPPELS (AND ANY LENDER ESTOPPEL REQUIRED UNDER SECTION 4.7, IF ANY) BY
DELIVERING TO PURCHASER AN ESTOPPEL CERTIFICATE FROM SELLER IN THE FORM ATTACHED
AS EXHIBIT K (AND FOR ANY LENDER ESTOPPEL REQUIRED BY SECTION 4.7, IF ANY) AS A
SUBSTITUTE FOR THE CLEAN LENDER ESTOPPELS ("SELLER'S LENDER ESTOPPEL").
IF
SELLER ELECTS TO DELIVER TO PURCHASER A SELLER'S LENDER ESTOPPEL, PURCHASER
SHALL HAVE THE RIGHT TO RELY ON THE STATEMENTS MADE THEREIN AND SUCH ESTOPPEL
SHALL NOT BE SUBJECT TO THE SURVIVAL LIMITATIONS AND OTHER LIMITATIONS ON
PURCHASER'S REMEDIES FOR SELLER'S BREACHES OF REPRESENTATIONS AND WARRANTIES
HEREUNDER.
THE IMMEDIATELY PRECEDING SENTENCE SHALL SURVIVE THE CLOSING
INDEFINITELY; PROVIDED, HOWEVER, THAT