Common use of Additional Conditions to Obligations of Parent and Merger Sub Clause in Contracts

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations and warranties) shall be true and correct as of the Effective Time as though made on and as of the Effective Time (except that those representations and warranties which address matters only as of a particular date need only be true and correct as of such date), except for such inaccuracies, individually or in the aggregate, that would not reasonably be expected to have a Company Material Adverse Effect, and Parent shall have received a certificate of an executive officer of the Company to that effect. (b) The covenants of the Company contained in the Agreement that are required to have been performed by the Company before the Effective Time shall have been performed in all material respects, and Parent shall have received a certificate of an executive officer of the Company to that effect and to the effect that Section 6.02(c), Section 6.02(d) and Section 6.02(e) have been satisfied. (c) Since the date of this Agreement, there shall not have occurred and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (d) No more than 6,800,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time. (f) Parent shall have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code, in form and substance reasonably acceptable to Parent, and (ii) proof reasonably satisfactory to Parent that the Company has provided notice of such verification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated herein are also subject to the fulfillment, on the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Parent in whole or in part in its sole discretion): (a) Each of (i) the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations Section 4.1, Section 4.2, Section 4.3, and warranties) Section 4.16 shall be true and correct in all respects (except, with respect to the representations and warranties set forth in Section 4.2, where the failure of such representations or warranties to be true and correct individually or in the aggregate is de minimis with respect to any increase in the aggregate amount of Required Payments or any liability to the Company or any of its Subsidiaries from and after the Closing as compared to the aggregate amount of such Required Payments or such liability absent such failure to be true and correct) as of the Effective Time Closing Date as though made on and as of the Effective Time Closing Date (except that those or, in the case of representations and warranties which that address matters only as of a particular date need only date, as of such date) and (ii) all other representations and warranties of the Company contained in Article IV shall be true and correct in all respects (without (other than in the case of the representation contained in the last sentence of Section 4.7) giving effect to any materiality or “Material Adverse Effect” qualifications set forth therein) as of the date hereof and as of the Closing Date as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except for such inaccuraciesexcept, individually or in the aggregatecase of this clause (ii), that where the failure of such representations or warranties to be true and correct has not had, and would not be reasonably be expected to have have, a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date; (c) since the date of this Agreement, and there shall not have been a Material Adverse Effect; and (d) Parent shall have received a certificate of an executive officer of the Company to the effect that effect. the conditions set forth in subsections (a), (b) The covenants of the Company contained in the Agreement that are required to have been performed by the Company before the Effective Time shall have been performed in all material respects, and Parent shall have received a certificate of an executive officer of the Company to that effect and to the effect that Section 6.02(c), Section 6.02(d) and Section 6.02(e) have been satisfied. (c) Since the date of this Agreement, there shall not Section 7.2 have occurred been satisfied and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effectcertificate contemplated by Section 6.13 hereof. (d) No more than 6,800,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time. (f) Parent shall have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code, in form and substance reasonably acceptable to Parent, and (ii) proof reasonably satisfactory to Parent that the Company has provided notice of such verification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and otherwise consummate the other transactions contemplated herein Contemplated Transactions are also subject to the satisfaction (or waiver by Parent), at or prior to the Closing, of each of the following conditions: (a) Each of the The representations and warranties of the Company set forth in the Agreement Company: (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications i) contained in such representations and warranties) this Agreement, other than the Specified Representations, shall be true and correct have been accurate in all respects as of the Effective Time date of this Agreement and shall be accurate in all respects as though of the Closing Date as if made on and as of the Effective Time Closing Date (except that those representations and warranties which address matters only other than any such representation or warranty made as of a particular date need only be true and correct specific earlier date, which shall have been accurate in all respects as of such earlier date), except for to the extent that any inaccuracies in such inaccuraciesrepresentations and warranties (at any such time) do not have, individually or in the aggregate, that and would not reasonably be expected to have, a Material Adverse Effect on the Company; (ii) contained in Sections 2.20, 2.21, 2.22, 2.24 and 2.25 shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation or warranty made as of a Company specific earlier date, which shall have been accurate in all material respects as of such earlier date); (iii) contained in Section 2.3(a), the first sentence of Section 2.3(b) and Section 2.3(d) shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation or warranty made as of a specific earlier date, which shall have been accurate in all respects as of such earlier date), except, that any inaccuracies in such representations and warranties that are, in the aggregate, de minimis will be disregarded; and (iv) contained in clause “(a)” of Section 2.5 shall have been accurate in all respects of the date of this Agreement; provided, however, that (x) in the case of each of clauses “(i)” and “(ii)”, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, all “Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties (other than dollar thresholds) shall be disregarded, and Parent shall have received a certificate (y) in the case of an executive officer each of clauses “(i)”, “(ii)”, “(iii)” and “(iv)”, that any update of or modification to the Company Disclosure Schedule made or purported to that effecthave been made after the execution and delivery of this Agreement shall be disregarded. (b) The covenants of and obligations in this Agreement that the Company contained in the Agreement that are is required to have been performed by comply with or to perform at or prior to the Company before the Effective Time Closing shall have been complied with and performed in all material respects, and . (c) Parent shall have received a certificate of an executive officer executed on behalf of the Company to by the Chief Executive Officer and Chief Financial Officer of the Company confirming that effect and to the effect that Section 6.02(c), Section 6.02(dconditions set forth in Sections 6.2(a) and Section 6.02(e6.2(b) have been duly satisfied. (cd) Since the date of this Agreement, there shall not have occurred and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (d) No more than 6,800,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of Effect on the Company and each Company Subsidiary, as such, each effective as of the Effective Timethat is continuing. (f) Parent shall have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code, in form and substance reasonably acceptable to Parent, and (ii) proof reasonably satisfactory to Parent that the Company has provided notice of such verification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations and warranties) shall be true and correct as of the Effective Time as though made on and as of the Effective Time (except that those representations and warranties which address matters only as of a particular date need only be true and correct as of such date), except for such inaccuracies, individually or in the aggregate, that would not reasonably be expected to have a Company Material Adverse Effect, and Parent shall have received a certificate of an executive officer of the Company to that effect. (b) The covenants of the Company contained in the Agreement that are required to have been performed by the Company before the Effective Time shall have been performed in all material respects, and Parent shall have received a certificate of an executive officer of the Company to that effect and to the effect that Section 6.02(c), Section 6.02(d), Section 6.02(e) and Section 6.02(e6.02(f) have been satisfied. (c) Since the date of this Agreement, there shall not have occurred and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (d) No more than 6,800,000 1,750,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time. (f) The Company shall have obtained consents or approvals from all parties in the absence of whose consent or approval the consummation of the Merger and the Transactions would violate or constitute a default under any Company Contract, except for such violations or defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, impair in any material respect the ability of the Company to perform its obligations hereunder or the ability of Parent to enjoy the intended benefit of the Transactions, or prevent or materially delay consummation of the Transactions; and the Company shall have obtained, made or received all consents or approvals of, or filings, declarations or registrations with, any Governmental Entity necessary for the execution and delivery of this Agreement and the CVR Agreements by the Company and the consummation by the Company of the Transactions, other than (i) the filing with the SEC of the post-Effective-Time filings required under, and compliance with other applicable requirements of, the Exchange Act and the rules of the NASDAQ Capital Market, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, and (iii) such consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, impair in any material respect the ability of the Company to perform its obligations hereunder or the ability of Parent to enjoy the intended benefit of the Transactions, or prevent or materially delay consummation of the Transactions. (g) Parent shall have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code, in form and substance reasonably acceptable to Parent, and (ii) proof reasonably satisfactory to Parent that the Company has provided notice of such verification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated herein are also subject to the fulfillment, on the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Parent in whole or in part in its sole discretion): (ai) Each of the Fundamental Representations (except for the representations and warranties of the Company set forth contained in the Agreement last sentence of Section 4.3(a), the first sentence of Section 4.3(b), the second sentence of Section 4.3(c), and Section 4.5(a)) shall each be true and correct in all material respects (without giving effect to any materiality, “Company Material Adverse Effect” or other materiality similar qualifications contained in such representations and warrantiesset forth therein) shall be true and correct as of the Effective Time Closing Date as though made on and as of the Effective Time Closing Date (except that those or, in the case of representations and warranties which that address matters only as of a particular date need only be true and correct date, as of such date), except for such inaccuracies, individually or (ii) the representations and warranties of the Company contained in the aggregatelast sentence of Section 4.3(a), that would not reasonably the first sentence of Section 4.3(b), the second sentence of Section 4.3(c) (without giving effect to any representation and warranty relating to the Subsidiary Joint Ventures set forth therein), and Section 4.5(a), shall each be expected true and correct in all respects as of the Closing Date as though made as of the Closing Date (without (other than in the case of the representations and warranties contained in Section 4.5(a)) giving effect to have a Company any materiality, “Material Adverse Effect” or similar qualifications set forth therein), (iii) each of the other representations and warranties of the Company contained in Article IV shall be true and correct (without giving effect to any materiality, “Material Adverse Effect” or similar qualifications set forth therein) as of the Closing Date as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except, in the case of clause (iii), where the failure of such representations or warranties to be so true and correct has not had, and would not be reasonably expected to have, a Material Adverse Effect and (iv) each of the other representations and warranties of Seller contained in Article V shall be true and correct (without giving effect to any materiality, “Material Adverse Effect” or similar qualifications set forth therein) as of the Closing Date as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except, in the case of clause (iv), where the failure of such representations and warranties to be so true and correct would not prevent or materially delay the Closing; (b) the Company and Seller shall each have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by the Company or Seller, as applicable, on or prior to the Closing Date; (c) Parent shall have received a certificate from Seller certifying that Seller is not a foreign person within the meaning of an executive officer of the Company to that effect. (b) The covenants of the Company contained in the Agreement that are required to have been performed by the Company before the Effective Time shall have been performed in all material respects, and Parent shall have received a certificate of an executive officer of the Company to that effect and to the effect that Treasury Regulation Section 6.02(c), Section 6.02(d1.1445-2(b) and Section 6.02(e1446(f) have been satisfied.of the Code; provided, that, in the event Seller fails to deliver such certification, the sole recourse of Parent and Merger Sub shall be to withhold on payments of Merger Consideration to the extent required by Law to the extent that any recipient of Merger Consideration does not deliver an acceptable alternative certification exempting such recipient from withholding; (cd) Since since the date of this Agreement, there shall not have occurred and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company no Material Adverse Effect. (d) No more than 6,800,000 Outstanding Company Shares Effect shall be eligible to be Dissenting Shares.have occurred; (e) The Company the FCA Approval shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time.been obtained; and (f) Parent shall have received from a certificate duly executed by an executive officer of the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury certifying that the Company is notconditions set forth in subsections (a), (b) and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2(d) of the Code during the applicable period described in this Section 897(c)(1)(A)(ii) of the Code, in form and substance reasonably acceptable to Parent, and (ii) proof reasonably satisfactory to Parent that the Company has provided notice of such verification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)8.2 have been satisfied.

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations and warranties) this Agreement shall be true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement shall be true and correct in all respects giving effect to such standard) on and as of the Effective Time date made and on and as of the Closing Date as though made on and as of the Effective Time (except Closing Date, provided that those representations and warranties which that address matters only as of a particular date need only shall remain true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement shall be true and correct in all respects giving effect to such standard) as of such date), . Parent shall have received a certificate of an executive officer of the Company to such effect. (b) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date except for such inaccuracies, individually where the failure to so perform or in the aggregate, that comply would not reasonably be expected to have a Company Material Adverse Effect, and Effect on the Company. Parent shall have received a certificate of an executive officer of the Company to that effect. (bc) The covenants Company shall have delivered, or caused to be delivered, to Parent: (i) a certificate of good standing from the Delaware Secretary of State and of comparable authority in other jurisdictions in which the Company and its Subsidiaries are incorporated or qualified to do business stating that each is a validly existing corporation in good standing (with respect to the jurisdictions which recognize such concept); and (ii) a certificate by the Secretary of the Company contained in certifying the Agreement that are required to have been performed by duly adopted resolutions of the Company before the Effective Time shall have been performed in all material respects, Board of Directors and Parent shall have received a certificate of an executive officer stockholders of the Company to that effect approving the execution, delivery and to performance of this Agreement and the effect that Section 6.02(cinstruments contemplated hereby (including without limitation the Estimated Adjustment Amount), Section 6.02(d) and Section 6.02(e) have been satisfiedthe names and true signatures of the officers of the Company authorized to sign this Agreement. (cd) Since From and including the date of this Agreement, there shall not have occurred and be continuing any an event or development which, individually or change in the aggregate, has had or Company that would reasonably be expected to have a Company Material Adverse Effect. (d) No more than 6,800,000 Outstanding Effect on the Company. Notwithstanding the foregoing, none of the events or changes in the Company’s business disclosed as of the date hereof on Schedule 5.7, including, without limitation, the termination notice received by the Company Shares from the *, shall be eligible constitute evidence that the Company failed to be Dissenting Sharessatisfy the condition described in this Section 7.2(d). (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time. (f) Parent shall have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Codeevidence, in form and substance reasonably satisfactory to it, that all licenses, permits, consents, approvals, waivers, authorizations, qualifications and orders of, and declarations, registrations and filings required under the terms, conditions or provisions of, any Person or matter set forth on Schedule 7.2(e) have been obtained or made, by the Company, without the imposition of any limitations, prohibitions or requirements, and are in full force and effect. (f) No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect and which (i) prevents, prohibits or materially restricts consummation of the transactions contemplated hereby, or results in the obligation to pay damages as a result of or in connection with the transactions contemplated by this Agreement in amounts that would reasonably be expected to have a Material Adverse Effect on Parent, (ii) limits materially or prohibits the ownership or operation by Parent, Merger Sub or any of their Subsidiaries of all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or compels Parent, Merger Sub, or any of their respective Subsidiaries to dispose of or hold separate all or any material portion of the business or assets of the Company and its * Redacted to preserve confidential information of the Company. Subsidiaries taken as a whole, or (iii) imposes material limitations on the ability of Parent, Merger Sub or any other subsidiary of Parent to acquire or hold, or to exercise effectively full rights of ownership of, the Company. (g) Prior to the Effective Time, Options shall have been terminated or fully exercised such that, on or any time after the Effective Time, there shall be no more than (1) 157,000 shares of Company Common Stock issuable upon exercise of outstanding Options, and (2) ten Persons holding any rights with respect to any of the Options. (h) Parent shall have received an estoppel certificate dated and executed not earlier than 30 days prior to the Closing Date from each of the landlords identified on Exhibit H, in the form of estoppel certificate attached thereto. (i) The Stockholders’ Agreement shall have been terminated, and the Company shall have received executed releases, in a form acceptable to Parent, and from the Holders (iias defined in the Stockholder’s Agreement) proof reasonably satisfactory to Parent of at least 90%, in the aggregate, of the Company’s securities, on a fully diluted basis, that are held by the Company has provided notice of such verification parties to the Internal Revenue Service Stockholders’ Agreement. (j) The holders of not more than 20% of the outstanding Company Common Stock shall have demanded appraisal of their Company Common Stock in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)DGCL.

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations and warranties) shall this Agreement will be true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of the Effective Time Closing Date as though made on and as of the Effective Time (except Closing Date, provided that those representations and warranties which address matters only as of a particular date need only will remain true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of such date), except for such inaccuracies, individually or in the aggregate, that would not reasonably be expected to have a Company Material Adverse Effect, and . Parent shall will have received a certificate of an executive officer the Chief Executive Officer and Chief Financial Officer of the Company to such effect. (b) The Company will have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date. Parent will have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company to that effect. (bc) The covenants stockholders of the Company contained in party to the Agreement that are required Voting Agreements will have performed all of their obligations thereunder at or prior to the Closing Date. (d) The Company will have been performed by the Company before the Effective Time shall have been performed in all material respectsdelivered, and or caused to be delivered, to Parent shall have received (i) a certificate of an executive officer good standing from the Delaware Secretary of State and of comparable authority in other jurisdictions in which the Company and its subsidiaries are incorporated or qualified to do business stating that each is a validly existing corporation in good standing; (ii) duly adopted resolutions of the Board of Directors and stockholders of the Company to that effect approving the execution, delivery and to performance of this Agreement and the effect that Section 6.02(c)instruments contemplated hereby, Section 6.02(dcertified by the Secretary of the Company; and (iii) a true and Section 6.02(e) have been satisfiedcomplete copy of the certificate of incorporation or comparable governing instruments, as amended, of the Company and its subsidiaries certified by the Secretary of State of the state of incorporation or comparable authority in other jurisdictions, and a true and complete copy of the bylaws or comparable governing instruments, as amended, of the Company and its subsidiaries certified by the Secretary of the Company and its subsidiaries, as applicable. (ce) Since Parent will have received "comfort" letters from KPMG L.L.P. on the date the Proxy Statement is mailed to the Company's stockholders and on the Closing Date. (f) From and including the date of this Agreement, there shall will not have occurred a Company Material Adverse Change. (g) Parent will have received evidence, in form and substance reasonably satisfactory to it, that such licenses, permits, consents, approvals, waivers, findings of suitability, authorizations, qualifications and orders of, and declarations, registrations and filings (including without limitation all Gaming Approvals) (collectively, "Consents and Filings") required to be continuing made or obtained by the Company, Merger Sub or Parent from all governmental entities as are required before consummation of the Merger and the transactions contemplated hereby, have been obtained or made, as applicable, by the Company, Merger Sub or Parent, as the case may be, without the imposition of any event limitations, prohibitions or development whichrequirements that could reasonably be expected to result in a Company Material Adverse Effect of a Parent Material Adverse Effect, individually and are in full force and effect, other than those Consents and Filings (i) that, if not obtained or in the aggregatemade, has had or would could not reasonably be expected to have a Parent Material Adverse Effect or Company Material Adverse EffectEffect before or immediately after the Effective Time; (ii) from those jurisdictions designated on SCHEDULE 6.2(g) ; or (iii) the failure to receive which is primarily the result of regulatory concerns regarding Parent or its affiliates or as a result of a breach by Parent or Merger Sub of Section 5.5(a). (d) No more than 6,800,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective Time. (fh) Parent shall will have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Codeevidence, in form and substance reasonably acceptable satisfactory to it, that all consents, approvals and waivers, required under the terms of any contract or agreement required to be listed on SCHEDULE 3.21 (other than the agreements with respect to funded indebtedness listed on Schedule 3.21) have been obtained or made, as applicable, by the Company, Merger Sub or Parent, as the case may be, without the imposition of any limitations, prohibitions or requirements that could reasonably be expected to result in a Company Material Adverse Effect of a Parent Material Adverse Effect, and (ii) proof are in full force and effect, other than those that, if not obtained or made, could not reasonably satisfactory be expected to have a Parent Material Adverse Effect or Company Material Adverse Effect before or immediately after the Effective Time. Without prejudice to any other rights of any Party to this Agreement, should Parent and the Company disagree as to whether the terms of any such agreement or contract require consent, approval or waiver by the other party thereto prior to the Merger or in order to effect the transactions contemplated by this Agreement, the Parent may by written notice delivered not more than 30 days after the date of this Agreement require that the Company has provide an opinion of independent counsel addressed to the Parent as to whether it is reasonably likely that such consent, approval or waiver is required; provided notice that such right may be exercised by Parent with respect to no more than two such contracts or agreements. Unless such counsel concludes, without unreasonable qualification, that such consent, waiver or approval is reasonably likely to be required under the terms of such verification contract or agreement, then the condition set forth in this SECTION 6.2(g) will be deemed satisfied with respect to such contract or agreement. Otherwise, the terms of this SECTION 6.2(g) will apply to such contract or agreement. (i) Parent shall have received an opinion of counsel to the Internal Revenue Service Company, Xxxxxx & Xxxxxx LLP with respect to the matters set forth in accordance SECTIONS 3.1, 3.2, 3.3, 3.4, 3.5, 3.8 and 3.12. In rendering such opinion, such counsel may rely on opinions of local counsel to the extent such counsel deems it reasonable to do so. Such counsel will also state that the Proxy Statement complied as to form in all material respects with the provisions requirements of Treasury Regulations Section 1.897-2(h)(2)the Exchange Act and the rules thereunder. In addition, such counsel will state that it has participated in the preparation of the Proxy Statement, and that, although such counsel is not assuming responsibility for the matters stated in the Proxy Statement, such counsel has no reason to believe that the Proxy Statement on the date the Proxy Statement was first mailed to the stockholders of the Company and on the date of the Special Meeting or the Closing Date, contained a false or misleading statement of any material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company set forth in the Agreement (without giving effect to any “Company Material Adverse Effect” or other materiality qualifications contained in such representations and warranties) shall this Agreement will be true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of the Effective Time Closing Date as though made on and as of the Effective Time (except Closing Date, provided that those representations and warranties which that address matters only as of a particular date need only will remain true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of such date), except for such inaccuracies, individually or in the aggregate, that would not reasonably be expected to have a Company Material Adverse Effect, and . Parent shall will have received a certificate of an executive officer the Chief Executive Officer and Chief Financial Officer of the Company to such effect. (b) The Company will have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date. Parent will have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company to that effect. (bc) The covenants Company will have delivered, or caused to be delivered, to Parent: (i) a certificate of good standing from the Delaware Secretary of State and of comparable authority in other jurisdictions in which the Company and its subsidiaries are incorporated or qualified to do business stating that each is a validly existing corporation in good standing; (ii) duly adopted resolutions of the Board of Directors and stockholders of the Company contained in approving the execution, delivery and performance of this Agreement that are required to have been performed and the instruments contemplated hereby, certified by the Company before Secretary of the Effective Time shall have been performed in all material respects, Company; and (iii) a true and Parent shall have received a complete copy of the certificate of an executive officer incorporation or comparable governing instruments, as amended, of the Company to that effect and to its subsidiaries certified by the effect that Section 6.02(c)Secretary of State of the state of incorporation or comparable authority in other jurisdictions, Section 6.02(d) and Section 6.02(e) have been satisfieda true and complete copy of the bylaws or comparable governing instruments, as amended, of the Company and its subsidiaries certified by the Secretary of the Company and its subsidiaries, as applicable. (cd) Since Parent will have received "comfort letters" from Xxxxxx Xxxxxxxx LLP on the date the Proxy Statement is mailed to the Company's stockholders and on the Closing Date. (e) From and including the date of this Agreement, there shall will not have occurred and be continuing any event or development which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (d) No more than 6,800,000 Outstanding Company Shares shall be eligible to be Dissenting Shares. (e) The Company shall have delivered to Parent the resignations of each director and officer of the Company and each Company Subsidiary, as such, each effective as of the Effective TimeChange. (f) Parent shall will have received from the Company (i) a properly executed statement, dated as of the Effective Time, stating under penalties of perjury that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Codeevidence, in form and substance reasonably acceptable satisfactory to it, that all licenses, permits, consents, approvals, waivers, findings of suitability, authorizations, qualifications and orders of, and declarations, registrations and filings required under the terms, conditions or provisions of any item or matter referenced in SECTION 3.5(B) and SECTION 4.3(B) and required to be listed on Section 3.5(b) and Section 4.3(b) of the Disclosure Letter (collectively, "Consents and Filings") have been obtained or made, as applicable, by the Company, Merger Sub or Parent, as the case may be, without the imposition of any limitations, prohibitions or requirements, and are in full force and effect. (iig) proof Parent shall have received an opinion of counsel to the Company, Xxxxxx, Xxxx & Xxxxxxxx LLP, in the form of EXHIBIT B. In rendering such opinion, such counsel may rely on opinions of local counsel to the extent such counsel deems it reasonable to do so. Such counsel will also state that the Proxy Statement complied as to form in all material respects with the requirements of the Exchange Act and the rules thereunder. In addition, such counsel will state that it has participated in the preparation of the Proxy Statement and has read the documents incorporated by reference therein, and that, although such counsel is not assuming responsibility for the matters stated in the Proxy Statement, such counsel has no reason to believe that the Proxy Statement on the date the Proxy Statement was first mailed to the stockholders of the Company and on the date of the Special Meeting or the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. (h) Parent shall have received evidence, in form and substance reasonably satisfactory to Parent it, that all options to purchase shares of Company Common Stock have been canceled or exercised. (i) On the Closing Date, Dissenting Shares shall aggregate no more than 5% of the then outstanding shares of Company Common Stock. (j) The Company shall have used commercially reasonable efforts to cause at least 90% of the employees of the Company has provided notice as of such verification the date hereof (other than the Designated Employees) to have executed and delivered to Parent an Associate's Agreement in the Internal Revenue Service in accordance with form attached hereto as EXHIBIT C. (k) Without limiting the provisions of Treasury Regulations Section 1.897SECTION 6.2(J), the Company shall have used commercially reasonable efforts to cause all of the employees of the Company specifically designated by Parent to have agreed to remain employed by the Surviving Corporation after the Closing, including by having executed an Associate's Agreement, in the capacities designated by Parent. (l) Parent shall have received an executed Non-2(h)(2).Competition Agreement from Xxxxxxx X. Xxxxx in the form attached hereto as EXHIBIT D.