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.
(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.
44
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 MUTUAL WRITTEN CONSENT OF SELLER AND
PURCHASER;
(B)
AFTER SEPTEMBER 15, 2003, BY EITHER SELLER
OR PURCHASER, IF THE CLOSING HAS NOT OCCURRED BY THAT DATE; PROVIDED, HOWEVER,
THAT SELLER SHALL HAVE THE RIGHT TO EXTEND SUCH DATE IN ACCORDANCE WITH
SECTION 5.8(B); PROVIDED, FURTHER, THAT SUCH DATE SHALL BE EXTENDED TO 120 DAYS
AFTER A SECOND REQUEST, IF ANY, BY THE DEPARTMENT OF JUSTICE OR THE FEDERAL
TRADE COMMISSION IN CONNECTION WITH THE FILING OF A NOTIFICATION AND REPORT FORM
PURSUANT TO THE HSR ACT; AND PROVIDED, FURTHER, THAT THE RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SECTION 7.1(B) SHALL NOT BE AVAILABLE TO A PARTY
WHOSE ACTION OR FAILURE TO ACT HAS BEEN A PRINCIPAL CAUSE OF OR RESULTED IN THE
FAILURE OF THE ACQUISITION TO OCCUR ON OR BEFORE SUCH DATE AND SUCH ACTION OR
FAILURE TO ACT CONSTITUTES A BREACH OF THIS AGREEMENT;
(C)
BY SELLER, UPON WRITTEN NOTICE, IF ANY
REPRESENTATION OR WARRANTY OF PURCHASER SHALL HAVE BECOME UNTRUE SUCH THAT THE
CONDITION SET FORTH IN SECTION 6.2(A) WOULD NOT BE SATISFIED OR IF PURCHASER
SHALL HAVE MATERIALLY BREACHED ANY AGREEMENT, OBLIGATION OR COVENANT SUCH THAT
THE CONDITION SET FORTH IN SECTION 6.2(B) WOULD NOT BE SATISFIED; PROVIDED THAT
IF THE INACCURACY IN PURCHASER'S REPRESENTATIONS AND WARRANTIES OR THE BREACH OF
PURCHASER'S AGREEMENT, OBLIGATION OR COVENANT IS CURABLE THROUGH THE EXERCISE OF
PURCHASER'S COMMERCIALLY REASONABLE EFFORTS, THEN SELLER MAY NOT TERMINATE THIS
AGREEMENT FOR THIRTY (30) DAYS AFTER SELLER SHALL HAVE GIVEN WRITTEN NOTICE OF
SUCH INACCURACY OR BREACH TO PURCHASER (SO LONG AS PURCHASER CONTINUES TO USE
COMMERCIALLY REASONABLE EFFORTS TO CURE THE INACCURACY OR