Common use of Buyer’s Conditions to Closing Clause in Contracts

Buyer’s Conditions to Closing. The obligation of Buyer to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for such representations Date, and warranties made as of a specified date, which Seller shall have performed and satisfied in all material respects all covenants and agreements required to be true performed and correct only as of such specified date), with only such exceptions as would not, individually satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller No suit, action or other proceeding brought by a third party shall be pending, nor shall any order have performed, satisfied been entered by any court or complied in all material respects with all agreements, obligations and covenants required by Governmental Authority having jurisdiction over the Parties or the subject matter of this Agreement to be performed, satisfied or complied with by Seller by which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the Closingpurchase and sale contemplated by this Agreement. (c) Seller All material consents and approvals required of any third party or Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities or third parties that are customarily obtained after Closing, shall have delivered to Buyer a certificate of Seller dated been received or waived in writing, or the Closing Date and signed by an authorized officer of Seller to the effect that each necessary waiting period shall have expired, or early termination of the conditions specified above in Sections 2.2(a) and (b) has waiting period shall have been satisfiedgranted. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects, Environmental Defects and Casualty Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There Seller shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall use commercially reasonable efforts to provide Buyer evidence the Assets have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated not been pledged as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxcollateral.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer’s obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsREIT Units: (a) The representations and warranties of Delivery by Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as Closing of the date hereof documents set forth in Sections 7(b) and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect7(d) below. (b) Delivery by Seller shall have performedof a non-Foreign Certification at Closing in the form attached hereto as Exhibit C; (c) Delivery by Seller of such documentation as may be reasonably satisfactory to Buyer to verify that the legal existence of Point at Xxxxx has been terminated as of an effective date that precedes the Closing, satisfied or complied it being acknowledged that such evidence may be in all material respects with all agreements, obligations the form of a copy of the filed Certificate of Cancellation for such entity; (d) Performance by Seller as and covenants when required by this Agreement of each and every material term, covenant, condition and agreement required to be performed, satisfied or complied with performed by Seller by pursuant to this Agreement (including the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above covenants set forth in Sections 2.2(a4(a)(including Seller’s Title Notice), 11(c) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.11(g)); (e) There shall not be any Applicable Law Delivery by Seller on or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. before Closing (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability subject to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of moneySection 7(a), must have been obtained or made below) of a tenant estoppel certificate from Science Applications International Corporation (“Major Tenant”) in substance as prescribed in such tenant’s Lease, disclosing no Material Estoppel Defect. “Material Estoppel Defect” shall mean: (i) a statement that the Major Tenant sought to exercise its right of first refusal as set forth thereinin 49.2 of the Major Tenant Lease, and on (ii) a statement that the terms and conditions described thereinPhase 5 Rent Commencement Date (as defined in the Major Tenant Lease) has not occurred, and be (iii) a statement that the Major Tenant has not received the full tenant improvement allowance to which it is entitled, (iv) a statement that the Major Tenant has delivered to Landlord a Contraction Notice as defined in full force and effect. Section 1.2 of the Major Tenant Lease, or (gv) The waiting period applicable any other material adverse information relating to the transactions contemplated hereby under Leases, including, without limitation, any material and adverse claim, dispute, delinquency, default, or conflict with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Lease or other Due Diligence Items provided to Buyer. Seller shall provide Buyer with a credit at Closing for any reasonably undisputed matter reflected in the estoppel involving money owed from landlord to tenant that is in excess of 1976 One Thousand and No/100 Dollars (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent$1,000.00), authorizationprovided, orderthat, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall not have received the other agreements, instruments and documents right to be delivered to it under Section 2.1(b). (j) Since the date of terminate this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have agreement if such matters do not constitute a Material Adverse EffectEstoppel Defect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made Sellers contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for such representations Date, and warranties made as of a specified date, which Sellers shall have performed and satisfied in all material respects all covenants and agreements required to be true performed and correct only as of such specified date), with only such exceptions as would not, individually satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller No suit, action or other proceeding brought by a third party shall be pending, nor shall any order have performed, satisfied been entered by any court or complied in all material respects with all agreements, obligations and covenants required by Governmental Authorities having jurisdiction over the Parties or the subject matter of this Agreement to be performed, satisfied or complied with by Seller by which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the Closingpurchase and sale contemplated by this Agreement. (c) Seller All material consents and approvals required of any third party or Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein shall have delivered been received or waived in writing; and Sellers shall have provided evidence satisfactory to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedsame. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects, Environmental Defects and Casualty Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingthreshold set forth in Section 7.6 above. (e) There Sellers shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Sections 10.5. (f) Each of the Transferred Permits or filingsBuyer, in its sole discretion and upon its good faith effort, shall have determined that Sellers have satisfied, in all material respects, the absence provisions of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, Section 14.5 and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consentsatisfied itself that pipeline Segment No. 14609 is, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code orDate, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxgood working order.

Buyer’s Conditions to Closing. The It shall constitute a condition precedent to Buyer’s obligation of Buyer to consummate the transactions provided for hereby is subject to Closing hereunder that the satisfaction (or waiver by Buyer) following conditions shall have been satisfied as of the Closing of each of the following conditionsDate: (a) The representations All of the material representations, warranties, covenants, and warranties agreements of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, contained herein shall be true and correct at and and/or shall have been performed, as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified datecase may be, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectall material respects. (b) Seller There shall have performed, satisfied or complied be no Material Adverse Change (as hereinafter defined) in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time financial condition of the ClosingTenant, and the Leases shall be in full force and effect without material default thereunder by any party thereto. As used herein, a “Material Adverse Change” in the financial condition of the Tenant shall mean any reduction in the net worth of the Tenant by more than 10% from that which is reflected in the publicly available financial statements as of the expiration of the Due Diligence Period. To the extent that the Tenant has made share purchases during such period, the amount of cash directed to that purpose shall be added back in to equity for the purpose of making the foregoing calculation. (c) Seller shall have delivered obtained executed estoppel certificates (the “Estoppel Certificates”), in substantially the form attached hereto as Exhibit D, from the Tenant under and with respect to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedLeases. (d) No Proceeding by Seller shall (i) terminate all leasing and management agreements with respect to the Property with the Property Manager (or any Governmental Authority shall have been instituted that seeks other counter-parties to enjoin or prohibit such agreements), effective as of the transactions contemplated hereby or by Closing Date, (ii) pay any and all costs and expenses of termination thereof, and (iii) provide Buyer with evidence of the Collateral Agreements or that could reasonably be expected to have a material adverse effect on foregoing terminations and payments (the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing“Termination Documents”). (e) There Seller shall not have delivered a release (the “Bulk Sales Release”) issued by the Illinois Department of Revenue (the “Department”) stating that no withholding of the proceeds from the sale is required in connection with the “bulk sales” provisions of the Illinois Income Tax Act (35 ILCS 5/902(d)) and the Retailers Occupation Tax Act (35 ILCS 5j), or, in the alternative, Seller shall deliver to Buyer at Closing an agreement (the “Bulk Sales Indemnity Agreement”) from FORE pursuant to which FORE agrees to indemnify, protect, and hold Buyer harmless against and from any and all damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, judgments, proceedings, costs, disbursements, or expenses which may be imposed upon or incurred by or asserted against Buyer and arising from or out of any Applicable Law demand for unpaid taxes or Judgment that makes a claim for lien issued by the purchase and Department pursuant to the Illinois law against either HP I, HP II or HP III related to the sale of the Business 4OP Property or the Included Assets contemplated hereby illegal or otherwise prohibitedHalf Day Property. (f) Each of Seller and Tenant shall have entered into the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effectLease Modifications. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit a waiver of the Woodlands ROFO’s from each of the parties entitled to exercise the same. (h) If any one or more of the foregoing conditions shall not be satisfied, then Buyer may, by giving Seller and any affiliate of Seller transferring Included Assets pursuant to written notice on or before the Closing Date, terminate this Agreement, dated as of in which event the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller Deposit shall obtain and provide be paid to Buyer at and, thereafter, the Closing a certificate pursuant to Section 6 parties shall have no further rights or obligations hereunder except for those obligations which expressly survive the termination of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxthis Agreement.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for such representations Date, and warranties made as of a specified date, which Seller shall have performed and satisfied in all material respects all covenants and agreements required to be true performed and correct only as of such specified date), with only such exceptions as would not, individually satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller No suit, action or other proceeding brought by a third party shall be pending, nor shall any order have performed, satisfied been entered by any court or complied in all material respects with all agreements, obligations and covenants required by Governmental Authorities having jurisdiction over the Parties or the subject matter of this Agreement to be performed, satisfied or complied with by Seller by which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the Closingpurchase and sale contemplated by this Agreement. (c) Seller All material consents and approvals required of any third party or Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities or third parties that are customarily obtained after Closing, shall have delivered to Buyer a certificate of Seller dated been received or waived in writing, or the Closing Date and signed by an authorized officer of Seller to the effect that each necessary waiting period shall have expired, or early termination of the conditions specified above in Sections 2.2(a) and (b) has waiting period shall have been satisfiedgranted. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects and Casualty Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form performed its obligations set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax10.5.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is under ----------------------------- this Agreement are subject to the satisfaction (or waiver by Buyer) of the following conditions as of the Closing Date, any or all of each of the following conditionswhich conditions may be waived by Buyer in writing in its sole discretion: (a) The All of Sellers', Holdings' and Alltrista's representations and warranties in this Agreement (considered collectively), and each of Seller made in Article 3 disregarding all qualifications these representations and exceptions relating to materiality, Material Adverse Effect or words of similar importwarranties (considered individually), shall be true and correct at and have been accurate in all material respects as of the date hereof of this Agreement, and at and shall be accurate in all material respects as of the time of the Closing Date as if made on such date (except for such then made, without giving effect to any update to the Schedules and each of the representations and warranties made in this Agreement that contains an express materiality qualification shall have been accurate in all respects as of a specified datethe date of this Agreement, which and shall be true and correct only accurate in all respects as of such specified date)the time of the Closing as if then made, with only such exceptions as would notwithout giving effect to any update to the Schedules, individually or except for inaccuracies that in the aggregateaggregate will, have a Material Adverse Effect. or could reasonably be expected to, result in an adverse financial impact (bincluding but not limited to claims, losses, obligations, expenses, costs incurred, and lost margin and costs likely to be incurred over the next twelve (12) Seller months, obligations or liabilities) to Buyer in an amount greater than One Million Five Hundred Thousand Dollars ($1,500,000). Sellers, Holdings and Alltrista shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations covenants and covenants conditions required by this Agreement to be performed, satisfied or performed and complied with by Seller by them at or prior to the time of the Closing. (c) Seller Closing Date, and Alltrista, Holdings and Sellers shall have delivered to Buyer a true and accurate certificate of Seller their corporate officers dated the Closing Date certifying to such compliance and signed by an authorized officer of Seller completion. (b) Buyer shall have received with respect to the effect that each of the conditions specified above Sellers, Holdings and Alltrista, a good standing certificate dated within ten (10) days of the Closing Date from their respective states of incorporation and every jurisdiction in Sections 2.2(awhich they are respectively required to qualify for business. (c) Buyer shall have received all Closing Approvals in form and (b) has been satisfiedsubstance reasonably satisfactory to Buyer. (d) No Proceeding by any Governmental Authority Each Seller, Holdings and Alltrista shall have been instituted that seeks executed and delivered a xxxx of sale and deeds conveying the Assets and Intellectual Property to enjoin or prohibit Buyer in form satisfactory to Buyer and its counsel in their reasonable judgment and any other instrument required by Section 2.3 including assignments of contracts ----------- and leases free and clear of all encumbrances other than Permitted Liens, the transactions contemplated hereby or by Assumed Liabilities and other encumbrances noted in the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingSchedules and Exhibits hereto. (e) There Sellers, Holdings or Alltrista shall not be any Applicable Law or Judgment that makes the purchase have executed and sale delivered certificates of title and assignments thereof for all motor vehicles transferred to Buyer as part of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedAssets. (f) Each Sellers, Holdings and Alltrista shall have delivered a list of the Transferred Permits or filingsInventory, Accounts Receivable and fixed assets as of the absence close of which business on a date as close as practicable to the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effectDate. (g) The waiting period applicable to No temporary restraining order, preliminary or permanent injunction, or cease and desist order, issued by any court or governmental authority preventing the transactions transfers contemplated hereby under or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act consummation of 1976 (the “HSR Act”) Closing, shall be in effect at the Closing Date, and no proceeding by any court or any similar foreign Applicable Law governmental authority seeking to restrict or prohibit the consummation of the Closing shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive be pending on the requirement of an advance ruling certificate or “no-action” letter)Closing Date. (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event occurrence or development that has had circumstance in the operations, properties, condition (financial or would otherwise) or the results of operations of the Business or the Assets having or reasonably be expected to have a Material Adverse Effecthave, individually or in the aggregate, an adverse financial impact (including but not limited to claims, losses, obligations, expenses, costs incurred, and lost margin and costs likely to be incurred over the next twelve (12) months, obligations or liabilities) to Buyer in an amount greater than One Million Five Hundred Thousand Dollars ($1,500,000). Specifically excluded are changes in conditions affecting the plastic thermoforming industry, the United States economy generally, an outbreak of hostilities or additional terrorist attacks not affecting the Buyer or the Business directly, trade embargoes, the closing of United States securities exchanges, or other similar developments which do not disproportionately affect the Business. (ki) Seller Buyer shall have delivered to Buyer an affidavit received a certificate of the Secretary of each Seller, Holdings and Alltrista with respect to the resolutions respectively adopted by each Seller, Holdings and Alltrista approving this Agreement and the transactions contemplated hereby, each of Seller and any affiliate which shall be reasonably acceptable to Buyer. (j) Buyer shall have received the opinion of Seller transferring Included Assets pursuant to this Agreement, Ice Xxxxxx dated as of the Closing Date and substantially Date, in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(ivExhibit 8.1(j). -------------- (k) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 Pro Forma versions of the Code orTitle Policies shall have been issued to Buyer with respect to the owned and leased Real Property, in the case and Sellers, Holdings and Alltrista shall have fully paid one-half of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest;premiums for such Title Policies. (l) Seller Buyer shall obtain and provide have been given the opportunity to meet with the Customers of the Business identified on Schedule 8.1(l), and, during such discussions, no --------------- Customer shall have indicated to Buyer at that it has changed its business relationship with the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation Business in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposesmaterial respect since August 31, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date 2001 or that Seller it has entered into satisfactory arrangements for payment decided to change its business relationship with the Business in any material respect or that it has decided not to do business with Buyer substantially as such Customer currently does business with Sellers, Holdings or Alltrista, as the case may be. No such discussions shall take place without a representative of such sales taxAlltrista present.

Buyer’s Conditions to Closing. The It is a condition to Buyer’s obligation of Buyer to proceed to Closing and to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) contemplated hereby, that, as of the Closing of each of the following conditionsDate: (ai) The all of the Seller’s representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, hereunder shall be true and correct at in all material respects and as of the date Seller’s Closing Certificate delivered pursuant to Section 9 hereof and at and as of the Closing Date as if made on such date (except for such shall not disclose any material qualifications or material changes in Seller’s representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or set forth in the aggregate, have a Material Adverse Effect.Section 12 hereof; (bii) Seller shall have performed, satisfied or complied performed in all material respects with all agreements, obligations and of its covenants required by hereunder; (iii) this Agreement to be performedshall not have terminated during the Contingency Period; (iv) Buyer shall have received executed subordination agreements in a form requested by Buyer’s lender, satisfied or complied with by Seller by the time in a form provided for in any respective tenant’s leases, for each of the Closingtenants of the Property. (cv) the Title Company shall be unconditionally committed to issue the Title Policy at Closing; and (vi) Seller shall have delivered all other documents and other deliveries listed in Section 9 hereof. If any condition to Buyer’s obligations hereunder is not fulfilled, including any condition not set forth in this Section 8(b), then Buyer a certificate of shall have the right to terminate this Agreement by written notice to Seller dated delivered on or before the Closing Date and signed by an authorized officer of Seller (or such sooner date as is herein required), in which event the Deposit less the Independent Contract Consideration shall be returned to the effect that each Buyer, all obligations of the conditions specified above in Sections 2.2(aparties hereto shall thereupon cease (except for those which survive the early termination of this Agreement as expressly provided herein) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority this Agreement shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably thereafter be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full no further force and effect. (g) The waiting period applicable to , unless such failure of condition constitutes a default on the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act part of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required Seller under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date provision of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of in which case the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning terms of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l11(b) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxalso apply.

Buyer’s Conditions to Closing. The Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby Property is subject to the satisfaction (or waiver by Buyer) as of the Closing of each all of the following conditionsconditions or Buyer's written waiver thereof (in Buyer’s sole discretion) on or before the Closing Date: (a) The representations Buyer will have thirty (30) days from Opening of Escrow (the “Due Diligence Contingency Period”) to complete physical inspections of the Property and warranties due diligence related to the purchase of the Property. Seller made in Article 3 disregarding shall provide to Buyer copies of all qualifications reasonably available and exceptions known documents relating to materiality, Material Adverse Effect or words of similar import, shall be true the ownership and correct at and as operation of the date hereof Property, including but not limited to plans, permits and at reports (environmental, structural, mechanical, engineering and as land surveys) that Seller has in its possession not later than two (2) business days following the execution and delivery of this Agreement. All physical inspections must be coordinated with Seller’s representative. Buyer hereby agrees to indemnify and hold Seller harmless for any damage to the Closing Date as if made on such date Property caused (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectbut not merely revealed) by Buyer’s inspections. (b) Seller shall have performed, satisfied or complied in has performed all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with performed by Seller by the time of the Closingpursuant to this Agreement. (c) Seller shall have delivered to Buyer a certificate Seller's representations and warranties herein are true and correct in all material respects as of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedDate. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks The Title Company is irrevocably committed to enjoin or prohibit issue a CLTA Title Policy to Buyer, effective as of the transactions contemplated hereby or by Closing Date, insuring title to Buyer in the Collateral Agreements or that could reasonably be expected full amount of the Purchase Price subject only to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingPermitted Exceptions. (e) There shall not be any Applicable Law or Judgment that makes Buyer has received the purchase and sale following approvals related to the development of the Business or Property from the Included Assets contemplated hereby illegal or otherwise prohibited. City of Pittsburg (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR ActCity”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. ): (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each a General Plan amendment, (ii) rezoning of the Collateral Agreements Property to which Seller and its applicable Affiliates are Medium Density Residential , (iii) a partyVesting Tentative Map showing approximately sixty(60) residential lots, (iv) design approval for approximately sixty (60) residential units on the Property, (v) California Environmental Quality Act (CEQA) approval for Buyer’s intended residential development of the Property, and Buyer shall have received (vi) the other agreementsexpiration of all applicable appeal periods related to Clauses (i) through (v) above (collectively, instruments and documents “Entitlement Approvals”). All Entitlement Approvals, including any conditions of approval to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3)Property, as applicableare subject to Buyer’s prior written consent, setting forth such Personwhich may be withheld at Buyer’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxsole but reasonable discretion.

Buyer’s Conditions to Closing. The Buyer’s obligation of Buyer to consummate purchase the transactions provided for hereby Assets and the Real Property and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditions:conditions in all material respects (collectively the “Conditions Precedent”): (a) The representations the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words any required waiting period(s) without the commencement of similar import, shall be true and correct at and as of adverse proceedings by any governmental authority with jurisdiction over the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.transactions contemplated by this Agreement; (b) each representation and warranty of Seller shall have performed, satisfied or complied in this Agreement being true and correct in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in all material respects; (c) Seller’s delivery to Buyer of the form documents set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv11.2(a) or 1.1445-2(c)(3and (b), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (ld) The Title Company shall be committed to issue the Title Policy at Closing; (e) If so requested in writing by Buyer, Seller shall obtain and provide to Buyer at have notified each Tenant who occupies any portion of the Closing a certificate Branches pursuant to Section 6 of the Retail Sales Tax Act a Lease with a term that has expired or which has a month to month term to vacate their leasehold, and such Xxxxx(s) shall have so vacated their leasehold, without any liability to Seller or Buyer; (Ontariof) and a certificate pursuant The Average Deposits shall be at least $90million, without giving effect to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxmunicipal deposits.

Buyer’s Conditions to Closing. The Buyer’s obligation of to purchase the Assets and take the other actions required to be taken by Buyer to consummate at the transactions provided for hereby Closing is subject to the satisfaction (satisfaction, at or waiver by Buyer) as of prior to the Closing Closing, of each of the following conditions:conditions (any of which may be waived by Buyer, in whole or in part): (a) The All of Seller’s representations and warranties in this Agreement (considered collectively), and each of Seller made in Article 3 disregarding all qualifications these representations and exceptions relating to materiality, Material Adverse Effect or words of similar importwarranties (considered individually), shall be true and correct at and have been accurate in all material respects as of the date hereof of this Agreement, and at and shall be accurate in all material respects as of the of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectthen made. (b) All of the covenants and obligations that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), shall have performed, satisfied or been performed and complied with in all material respects with all agreements, obligations and covenants required respects. (c) Every action which Seller needs to take in order to consummate the transactions contemplated by this Agreement shall have been taken or completed (including the lapse of any notice, grace or cure period) and shall be in full force and effect, including, but not limited to, declaring a default under its Loan Documents, taking possession of the Assets, notifying all parties entitled to be performednotice under the UCC regarding this Agreement or any of the transactions contemplated by this Agreement, satisfied and, if necessary, obtaining from the Company or complied with any guarantor a waiver of any right of redemption under UCC § 9623 or otherwise. Copies of all notices, demands and all other authenticated records, documents or instruments relating to the foregoing shall have been delivered by Seller by the time of the to Buyer prior to Closing. (cd) Seller shall have delivered to Buyer a certificate of an officer or Seller dated the Closing Date and signed by an authorized officer of Seller to the effect certifying that each of the all conditions specified above set forth in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall Section 7.1 have been instituted that seeks to enjoin satisfied or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingwaived. (e) There shall not be in effect any Applicable Law law or Judgment regulation or any injunction or other order that makes (i) prohibits the purchase and sale consummation of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and (the “HSR Act”ii) has been adopted or any similar foreign Applicable Law shall have expired issued, or early termination shall have been granted and any other consenthas otherwise become effective, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as if such representations and warranties were made at and as of the date hereof Closing, and Seller shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at and as of or prior to the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse EffectClosing. (b) Seller No suit, action or other proceeding brought by a third party shall be pending, nor shall any order have performed, satisfied been entered by any court or complied in all material respects with all agreements, obligations and covenants required by Governmental Authorities having jurisdiction over the Parties or the subject matter of this Agreement to be performed, satisfied or complied with by Seller by which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the Closingpurchase and sale contemplated by this Agreement. (c) All Consents shall have been received or waived in writing; and Seller shall have delivered provided evidence satisfactory to Buyer of the same. This condition shall be deemed to have been met if all Required Consents that have not been obtained at or prior to Closing apply to Assets whose Allocated Values as set forth for Seller on Exhibit “E” constitute, in the aggregate, less than five percent (5%) of the Base Purchase Price. “Required Consent” means any consent by a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller third party that, if not obtained prior to the effect that each assignment of such Asset, (a) makes the conditions specified above in Sections 2.2(a) and assignment with respect to such Asset void or voidable, (b) has been satisfied. terminates Seller’s interest in any Asset, or (dc) No Proceeding by triggers the required payment of a predetermined amount as purported liquidated damages; provided, however, that, for purposes hereof, any Governmental Authority Consent requirement providing that it cannot be unreasonably withheld shall be deemed to have been instituted that seeks obtained unless the holder of the right to enjoin or prohibit grant such Consent has expressly objected to the transactions contemplated hereby or by the Collateral Agreements or conveyance and stated grounds that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents determined to be delivered to it under Section 2.1(b)reasonable grounds for withholding such Consent. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditions: (a) The the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and the expiration of any required waiting period without the commencement of adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement; (b) the representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be this Agreement being true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such that representations and warranties made as of a specified date, which shall date need be true and correct only as of such specified date); (provided, with only however, that for purposes of determining the satisfaction of the condition contained in this Section 9.3(b), such exceptions as would notrepresentations and warranties shall be deemed to be true and correct if the failure or failures of such representations and warranties to be so true and correct (excluding the effect of any qualification set forth therein relating to "materiality" or "Seller Material Adverse Effect") do not constitute or give rise to, and are not reasonably likely to constitute or give rise to, individually or in the aggregate, have a Seller Material Adverse Effect. (b) ), and all covenants and conditions of Seller shall have performed, satisfied to be performed or complied met by Seller on or before the Closing Date having been performed or met in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.respects; (c) Seller shall have delivered Seller's delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) Subject to Section 7.3, special warranty deeds conveying the Owned Real Property; (ii) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the remaining Assets; (iii) a certificate of Seller dated the Closing Date and signed executed by an authorized appropriate officer of Seller attesting, to the effect that each officer's best knowledge, to Seller's compliance with the conditions set forth in Section 9.3(b); and (iv) estoppel certificates executed by the lessors of the conditions specified above in Sections 2.2(a) Leased Facilities, to the extent Seller can obtain such certificates using its reasonable efforts and (b) has been satisfied.without the payment of any fees to such lessors; and (d) No Proceeding by any Governmental Authority shall have been instituted that seeks Buyer's agreement to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on receive the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities Statement and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens Settlement Payment as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Timeprovided in Section 3.2. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) Seller shall conduct business at the Property in a good and diligent manner consistent with Seller's current business practices and shall maintain the Property in its present condition through the date of Closing, reasonable wear and tear excepted. (b) Seller have terminated, at Seller's sole cost and expense, all Service/Equipment Contracts except to the extent Buyer has given Seller written notice that certain Service/Equipment contracts should be continued and Buyer has assumed post Closing liability for such contracts, however, such services shall be continued at Seller's expense until the Closing Date. (c) The Title Company shall stand ready to issue the Title Policy in the form required herein. (d) Delivery by Seller at Closing of the Closing Documents described in Section 8 hereof. (e) Performance by Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to be performed by Seller pursuant to this Agreement and all of Seller's representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made anew on such date (except for such representations and warranties made as of a specified that date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each Delivery by Seller of Tenant Estoppel Certificates in the form attached hereto as Exhibit F for tenants comprising at least 80% of the Transferred Permits or filingsnet rentable square feet of the Property which shall include all tenants listed in Exhibit F-1, the absence substance and content of which on shall be consistent with the Certified Rent Roll and Seller shall use commercially reasonable efforts to obtain the required Tenant Estoppel Certificates. Buyer shall cooperate with Seller post Closing Date would materially impair Buyer’s ability to operate complete collection of Tenant Estoppels. In the Businessevent sufficient Tenant Estoppels cannot be obtained, Buyer shall accept a Seller Estoppel in the form attached hereto as currently conducted (but excluding any such Transferred Permits or filings Exhibit F-2 and all post Closing Tenant Estoppels shall be delivered pursuant to the absence terms of which can be cured solely by Exhibit F-2. In the payment of money), must have been obtained or made as event that the conditions set forth therein, and on the terms and conditions described therein, and be above in full force and effect. this Section 6 are not satisfied (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date is not otherwise in default of this Agreement), there shall have been no change, event Buyer may elect to terminate this Agreement or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as waive satisfaction of the Closing Date condition and substantially close escrow in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian either instance by giving written notice to Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditions: (a) The representations parties obtaining all regulatory approvals which are necessary for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words any required waiting period without the commencement of similar import, shall be true and correct at and as of adverse proceedings by any governmental authority with jurisdiction over the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.transactions contemplated by this Agreement; (b) Each express representation, covenant and warranty of Seller shall have performed, satisfied or complied in this Agreement being true and correct in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in all material respects; (c) The aggregate amount of the form Deposits to be assumed by Buyer, as set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) the Preliminary Closing Statement, shall not be below 20% less, or 1.1445-2(c)(3)above 6% more, as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under than the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 aggregate amount of the Code orDeposits set forth in Exhibit D hereto. (d) Any title report, engineering survey, inspection results and/or environmental survey obtained or performed by or for Buyer with respect to the Real Property and Fixed Assets before the Closing Date shall be satisfactory to Buyer in the case its reasonable judgment. (e) Seller's delivery to Buyer of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interestfollowing documents in form and substance satisfactory to counsel for Buyer: (i) The executed Preliminary Closing Statement; (lii) Seller shall obtain General warranty deeds conveying the Real Property; (iii) Bills of sale, assignments, and provide other instruments of transfer sufficient to convey to Buyer at all of Seller's right, title, and interest in and to the Closing a Assets; and (iv) A certificate pursuant executed by an appropriate officer of Seller attesting, to the officer's best knowledge, to Seller's compliance with the conditions set forth in Section 6 9.3; and (f) Buyer's receipt of the Retail Sales Tax Act (Ontario) Preliminary Payment as provided in Section 3.3 The assignments and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each instruments of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up transfer relating to the Closing Date or Loans shall be blanket assignments except to the extent that Seller has entered into satisfactory arrangements for payment of such sales taxindividual assignments are necessary to perfect Buyer's interest in any Loan.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for such representations Date, and warranties made as of a specified date, which Seller shall have performed and satisfied in all material respects all covenants and agreements required to be true performed and correct only as of such specified date), with only such exceptions as would not, individually satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) No suit, action or other proceeding brought by a third Person shall be pending, nor shall any order have been entered by any court or Governmental Authority having jurisdiction over the Parties or the subject matter of this Agreement which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the purchase and sale contemplated by this Agreement. (c) All material consents and approvals required of any Governmental Authority in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after Closing, shall have been received or waived in writing, or the necessary waiting period shall have expired, or early termination of the waiting period shall have been granted. (d) The aggregate sum of (i) the Title Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) for all Title Defects timely and properly asserted pursuant to Section 7.1, (ii) the Environmental Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) for all Environmental Defects timely and properly asserted pursuant to Article 8 and (iii) the Casualty Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) pursuant to Article 17, shall not have exceeded the Termination Threshold. (e) Seller shall have performed, satisfied or complied be ready, willing and able to perform its obligations set forth in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedSection 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each a certification of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially non-foreign status in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), attached as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a Exhibit “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxE”.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is ----------------------------- hereunder are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions at or before Closing, any and all of which may, at the option of Buyer, be waived: (a) The All representations and warranties of the Corporation and the Seller in this Agreement shall have been true and correct in all material respects when made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at in all material respects on and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified the Closing Date (without giving effect to modifications to the Schedules to this Agreement which are delivered by the Corporation or the Seller after the date hereof and on or before the Closing Date), unless the representation or warranty specifies another date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time each of the Closing. (c) Corporation and the Seller shall have delivered to Buyer a certificate to such effect with respect to its or his representations and warranties dated as of the Closing Date; (b) Each of the Corporation and the Seller dated shall have performed and complied in all material respects with all of its or his respective obligations under this Agreement which are to be performed or complied with by the Corporation or Seller prior to or on the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(aCorporation and the Seller shall have delivered to Buyer a certificate to such effect with respect to its or his performance and compliance with obligations dated as of the Closing Date; (c) The Corporation and (b) has been satisfied.the Seller shall have delivered all of the items and documents required to be delivered by it or him pursuant to Section 4.2 of this Agreement; (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit The form and substance of the transactions contemplated hereby or documents delivered by the Collateral Agreements or that could Corporation and Seller pursuant to this Agreement shall be reasonably be expected acceptable to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.and Buyer's counsel; and (e) There shall not be any Applicable Law no Proceedings pending or Judgment threatened that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits restrict or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to prohibit consummating the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 herein (the “HSR Act”) provided, however, that a Proceeding commenced by Buyer or any similar foreign Applicable Law Person controlled by Buyer shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement not constitute a Proceeding for purposes of an advance ruling certificate or “no-action” letterthis Section 9.1(e)). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The Buyer’s obligation of Buyer to consummate the transactions provided for hereby close this transaction is subject to the satisfaction (or waiver by BuyerXxxxx’s written waiver) as of the Closing of each of the following conditions: conditions (a“Buyer’s Conditions to Closing”) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made on such Date, unless an earlier date (except for such is specified in this Agreement: 1. Seller’s representations and warranties made as of a specified dateset forth in this Agreement are true, which shall be true accurate and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations on and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time as of the Closing.; (c) 2. Seller has materially performed all of its obligations to be performed by Seller on or before Closing; 3. Escrow Agent shall have delivered be unconditionally committed as of the Closing to issue an Owner’s Policy of Title Insurance to Buyer a certificate in the amount of Seller dated the Closing Date and signed by an authorized officer of Seller Total Purchase Price insuring Buyer’s fee simple title to the effect that each of Property (“Title Policy”), subject only to the matters identified on Exhibit C (the “Permitted Exceptions”); and 4. Any other express conditions specified above set forth in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority this Agreement in Buyer’s favor shall have been instituted fully satisfied. It is expressly understood and acknowledged by Xxxxx that seeks this Agreement and Xxxxx’s obligations hereunder are not contingent or conditioned upon obtaining a commitment for any financing and the failure of Buyer to enjoin obtain or prohibit close any financing for any reason whatsoever shall not be a failure of condition to Xxxxx’s performance hereunder. If any updated title report after the transactions contemplated hereby or Effective Date discloses a title exception other than a Permitted Exception of which Xxxxx was not aware prior to the Effective Date and was not caused by Buyer (a “New Title Exception”) and that would appear as an exception on the Collateral Agreements or that could reasonably be expected to Title Policy and have a material materially adverse effect on the right or ability ownership of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business Property after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and then Buyer shall have received the other agreements, instruments and documents right to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) request Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth remove such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up New Title Exception prior to the Closing Date or by written notice to Seller (the “New Title Exception Notice”). In the event that Seller has entered into satisfactory arrangements for payment is unable or unwilling to remove any New Title Exception identified in a New Title Exception Notice on or before Closing, then Buyer may elect to either: (I) accept such New Title Exception and proceed with Closing, in which event such New Title Exception shall constitute a Permitted Exception, or (II) elect to terminate this Agreement, in which event this Agreement shall terminate and Buyer shall be entitled to a refund of such sales taxthe Deposit and the Extension Deposit (if applicable). Seller shall have no obligation to remove any New Title Exception, or any other title defect or condition, or otherwise take any action with respect to the Permitted Exceptions.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made Sellers and Zebra contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct only as of such the specified date), with only such exceptions as would not, individually and Sellers shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller shall have performedOn the Closing Date, satisfied no injunction, order or complied in all material respects with all agreements, obligations and covenants required award enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement to be performed, satisfied or complied with shall have been issued by Seller by the time of the Closinga Governmental Authority and remain in force. (c) Seller All material consents and approvals required of Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after Closing, shall have delivered to Buyer a certificate of Seller dated been received or waived in writing, or the Closing Date and signed by an authorized officer of Seller to the effect that each necessary waiting period shall have expired, or early termination of the conditions specified above in Sections 2.2(a) and (b) has waiting period shall have been satisfiedgranted. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects, Environmental Defects, Open Defects and Casualty Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There Sellers shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must Zebra shall have been obtained or made as performed its obligations set forth therein, and on the terms and conditions described therein, and be in full force and effectArticle 19. (g) The waiting period applicable Sellers shall have executed the Closing Settlement Statement defined under Section 10.3, including WEC executing the Closing Statement on behalf of the Participating Third Party Owners pursuant to the transactions contemplated hereby authority granted under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)Election Agreements. (h) The material Included Assets (other than the Transferred Facilities execution and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as deliveries of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Participating Third Party Owners set forth in Section 2.1(b). (j) Since the date of this Agreement, there 10.5 shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effectperformed. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer to consummate purchase and pay, through Buyer Sub, for the transactions provided for hereby is Shares owned by the Sellers shall be subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (ai) The representations and warranties of Seller the Sellers made in Article 3 disregarding all qualifications this Agreement and exceptions relating in any certificate or other document to materiality, Material Adverse Effect or words of similar import, be delivered in connection with this Agreement shall be true and correct at in all respects (in the case of any representation or warranty containing any materiality qualification) or in all material respects (in the case of any representation or warranty without any materiality qualification) on the Effective Date and on and as of the date hereof and at Closing Date, as though made on and as of the Closing Date as if made on (unless and to the extent any such date (except for such representations and warranties made representation or warranty speaks specifically as of a specified an earlier date, in which shall be true and correct only case, as of such specified earlier date), with only such exceptions as would not, individually or in ; and (ii) the aggregate, have a Material Adverse Effect. (b) Seller Sellers shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by Seller the Sellers by the time of the Closing.; (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Other than any Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit disclosed in the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to ownCP SEC Documents, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) there shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. no Proceeding pending or threatened which (i) Seller and its applicable Affiliates shall have executed and delivered seeks to Buyer each restrain, enjoin or prevent the consummation or otherwise affect or undo any of the Collateral Agreements Transactions, (ii) seeks to which recover damages or to obtain other relief in connection with any of the Transactions, (iii) seeks severance or wrongful termination remedies from CPP, (iv) asserts that any Person other than a Seller and its applicable Affiliates are a partyor Buyer is the holder or beneficial owner of the any of the Shares or is entitled to any portion of the Purchase Price, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). or (jv) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected if adversely determined is likely to have a Material Adverse Effect. (k) Seller Effect on Critical Path, Buyer Sub or CPP. No preliminary or permanent injunction or other Order by any Governmental Entity which prevents consummation of any of the Transactions shall have delivered to Buyer an affidavit of each of Seller been issued and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially remain in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interesteffect; (lc) Seller shall obtain All consents, authorizations, Orders and provide to Buyer at approvals of, and registrations, declarations and filings with, any Governmental Entity, required for or in connection with the Closing a certificate pursuant to Section 6 execution and delivery of this Agreement and the consummation of the Retail Sales Tax Act Transactions shall have been obtained or made; (Ontariod) Buyer shall have received all the Seller Deliverables, which shall be satisfactory to Buyer; (e) Buyer shall have completed, to its satisfaction, its due diligence investigation; and (f) All original minute books, ledgers and registers (including the share register) and a certificate pursuant other corporate records relating to similar legislation the organization, ownership and maintenance of CPP shall be in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each the corporate headquarters of which indicates that all sales tax collectible or payable by Seller under such legislation CPP and Buyer Sub shall have been paid up given access to the Closing Date or that Seller has entered into satisfactory arrangements for payment of and control over such sales taxrecords.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditions: (a) The the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and the expiration of any required waiting period without the commencement of adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement (No regulatory approval so obtained which is necessary to consummate the transactions contemplated hereby shall be conditioned or restricted (including, without limitation, any requirement for Buyer to raise additional capital) in a manner which in the reasonable judgment of the Board of Directors of Buyer would so materially adversely affect the economic or business benefits of the transactions contemplated by this Agreement that, had such condition or requirement been known, such party would not, in its reasonable judgment, have entered into this Agreement); (b) the representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be this Agreement being true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such that representations and warranties made as of a specified date, which shall date need be true and correct only as of such specified date); (provided, with only however, that for purposes of determining the satisfaction of the condition contained in this Section 9.3(b), such exceptions as would notrepresentations and warranties shall be deemed to be true and correct if the failure or failures of such representations and warranties to be so true and correct (excluding the effect of any qualification set forth therein relating to "materiality" or "Seller Material Adverse Effect") do not constitute or give rise to, and are not reasonably likely to constitute or give rise to, individually or in the aggregate, have a Seller Material Adverse Effect. (b) ), and all covenants and conditions of Seller shall have performed, satisfied to be performed or complied met by Seller on or before the Closing Date having been performed or met in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding without duplication of any such Transferred Permits or filings the absence standard of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form materiality set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) any such covenant or 1.1445-2(c)(3condition), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) Seller shall conduct business at the Property in a good and diligent manner consistent with Seller's current business practices and shall maintain the Property in its present condition through the date of Closing, reasonable wear and tear excepted. (b) Seller have terminated, at Seller's sole cost and expense, all Service/Equipment Contracts except to the extent Buyer has given Seller written notice that certain Service/Equipment contracts should be continued and Buyer has assumed post Closing liability for such contracts, however, such services shall be continued at Seller's expense until the Closing Date. (c) The Title Company shall stand ready to issue the Title Policy in the form required herein. (d) Delivery by Seller at Closing of the Closing Documents described in Section 8 hereof. (e) Performance by Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to be performed by Seller pursuant to this Agreement and all of Seller's representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made anew on such date (except for such representations and warranties made as of a specified that date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each Delivery by Seller of Tenant Estoppel Certificates in the form attached hereto as Exhibit F for tenants comprising at least 80% of the Transferred Permits or filingsnet rentable square feet of the Property, which shall include all tenants listed on Exhibit F-1, the absence substance and content of which on shall be consistent with the Certified Rent Roll and Seller shall use commercially reasonable efforts to obtain the required Tenant Estoppel Certificates. Buyer shall cooperate with Seller post Closing Date would materially impair Buyer’s ability to operate complete collection of Tenant Estoppels. In the Businessevent sufficient Tenant Estoppels cannot be obtained, Buyer shall accept a Seller Estoppel in the form attached hereto as currently conducted (but excluding any such Transferred Permits or filings Exhibit F-2 and all post Closing Tenant Estoppels shall be delivered pursuant to the absence terms of which can be cured solely by Exhibit F-2. In the payment of money), must have been obtained or made as event that the conditions set forth therein, and on the terms and conditions described therein, and be above in full force and effect. this Section 6 are not satisfied (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date is not otherwise in default of this Agreement), there shall have been no change, event Buyer may elect to terminate this Agreement or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as waive satisfaction of the Closing Date condition and substantially close escrow in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian either instance by giving written notice to Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation a) All of Buyer to consummate the transactions provided for hereby is subject to Buyer’s obligations hereunder are expressly conditioned on the satisfaction (at or waiver by Buyer) before the time of Closing hereunder, or at or before such earlier time as of the Closing may be expressly stated below, of each of the following conditions:conditions (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option): (ai) The All of the representations and warranties of Seller made contained in Article 3 disregarding all qualifications this Agreement shall have been true, correct and exceptions relating to materialitycomplete when made, Material Adverse Effect or words of similar import, and shall be true true, correct and correct at and as of complete in all material respects on the date hereof and at and as of Closing with the Closing Date same effect as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectsubject to Section 9.1. (bii) Seller shall have performed, satisfied or observed and complied in all material respects with all agreementsmaterial covenants, obligations agreements and covenants conditions required by this Agreement to be performed, satisfied or observed and complied with by Seller by the time on its part prior to or as of the ClosingClosing hereunder. (ciii) Seller shall have delivered All instruments and documents required on Seller’s part to Buyer a certificate of Seller dated the Closing Date effectuate this Agreement and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by shall be delivered at Closing and shall be in form and substance consistent with the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingrequirements herein. (eiv) There At Closing, the Title Company shall not be any Applicable Law irrevocably committed to insure title to the Properties (whether by separate policies or Judgment that makes a blanket policy as elected by Buyer) pursuant to a standard owner’s form of Policy of Title Insurance in the purchase and sale amount of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. Purchase Price (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of separate policies, the affidavit Allocable Purchase Price) at regular rates and without additional premium (which shall not be deemed to include the cost of any endorsements to title requested by Buyer), subject only to the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest;Permitted Exceptions and as otherwise provided in this Agreement. (lv) Seller shall obtain have delivered the Estoppel Certificates and provide otherwise satisfied the Estoppel Condition (as hereinafter defined) in accordance with Section 6.4(a). b) If the Estoppel Condition has not been satisfied prior to Buyer at the then-scheduled Closing a certificate pursuant Date, Seller shall have the one (1) time right to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to extend the Closing Date for up to thirty (30) days in order to provide additional time to satisfy Estoppel Condition. Furthermore, if the Estoppel Condition has not been satisfied and Seller does not exercise its right to extend the Closing Date, Buyer shall have the one (1) time right to extend the Closing Date for up to thirty (30) days in order to provide additional time to satisfy the Estoppel Condition. If either party extends the Closing Date pursuant to any extension expressly described in this Agreement, the Closing Date shall occur no later than three (3) business days after satisfaction of all such outstanding conditions. In the event Seller shall not be able to convey title to the Membership Interests on the Closing Date (as the same may be extended) in accordance with the provisions of this Agreement or that the Estoppel Condition has not been satisfied and neither party has extended the Closing Date to attempt to satisfy the Estoppel Condition, and in any such case Buyer has performed and is not in breach or default hereunder, then Buyer shall have the option, exercisable by written notice to Seller has entered into satisfactory arrangements for payment at or prior to Closing, of (1) accepting at Closing such sales taxtitle as Seller is able to convey and/or waiving any unsatisfied condition precedent, with no deduction from or adjustment of the Purchase Price, or (2) declining to proceed to Closing. In the latter event, except as expressly set forth herein, all obligations, liabilities and rights of the parties under this Agreement shall terminate, and the Exxxxxx Deposit shall be returned to Buyer. Notwithstanding anything to the contrary contained in this Section, if the conditions to Closing set forth in Section 6.2 are not timely satisfied due to the default of Seller under this Agreement, then Buyer shall have the rights and remedies available under this Agreement.

Buyer’s Conditions to Closing. The It is a condition to Buyer’s obligation of Buyer to proceed to Closing and to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) contemplated hereby, that, as of the Closing of each Date, (i) all of the following conditions: (a) The Seller’s representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, hereunder shall be true and correct at in all material respects and as of the date Seller’s Closing Certificate delivered pursuant to Section 9 hereof and at and as of the Closing Date as if made on such date (except for such shall not disclose any material qualifications or material changes in Seller’s representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or set forth in the aggregate, have a Material Adverse Effect. Section 12 hereof; (bii) Seller shall have performed, satisfied or complied performed in all material respects with all agreements, obligations and of its covenants required by hereunder; (iii) this Agreement shall not have terminated during the Contingency Period; (iv) the Title Company shall be unconditionally committed to be performedissue the Title Policy at Closing, satisfied or complied with by Seller by subject to the time Permitted Exceptions; (v) the IDB Lease shall have been terminated and of no further force and effect, and fee title to the Closing. Property shall have been reconveyed to Seller; (cvi) Seller shall have delivered to Buyer a certificate of Seller dated all other documents and other deliveries listed in Section 9 hereof; (vii) the Closing Date and signed by an authorized officer of Seller to the effect that each Lender shall not have revoked its approval of the conditions specified above in Sections 2.2(a) transaction contemplated by this Agreement and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale have revoked its approval of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. Loan Assumption (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding except this condition shall not apply if any such Transferred Permits or filings the absence of which can be cured revocation is caused solely by the payment acts and/or omissions of money)Buyer and/or its affiliates, must have been obtained or made as set forth thereinand, and on in the terms and conditions described thereinevent of any such revocation so caused by Buyer and/or its affiliates, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free deemed in default of this Agreement and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities Seller shall be free entitled to liquidated damages pursuant to Section 11(a) of this Agreement); and clear of all Liens other than Permitted Liens as of (viii) the Effective Time. (i) Seller and its applicable Affiliates Lender shall have executed and delivered to Buyer each Escrow Holder the Loan Assumption Documents without material modification from the forms of such documents that were approved by Buyer, Seller and Lender as of expiration of the Collateral Agreements Contingency Period. If, as of the Closing Date, any condition to which Seller and its applicable Affiliates are a partyBuyer’s obligations in this Section 8(b) is not fulfilled, and then Buyer shall have received the right to terminate this Agreement by delivering written notice to Seller, in which event the Xxxxxxx Money Deposit less the Independent Contract Consideration shall be returned to Buyer, the Loan Fee Deposit shall be disbursed in accordance with the provisions of Section 2(b) hereof, all obligations of the parties hereto shall thereupon cease (except for those which survive the early termination of this Agreement as expressly provided in this Agreement) and this Agreement shall thereafter be of no further force and effect, unless such failure of condition constitutes a default on the part of Seller under any other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date provision of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of in which case the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning terms of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l11(b) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxalso apply.

Buyer’s Conditions to Closing. 7.2.1 The obligation of Buyer shall not be obligated to consummate complete the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as purchase of the Purchased Assets pursuant to this Agreement unless, at or before the Closing of Time, each of the following conditionsconditions listed below in this Section 7.2 has been satisfied, it being understood that such conditions are included for the exclusive benefit of the Buyer: (a) The 7.2.1.1 the representations and warranties of the Seller made set forth in Article Section 3 disregarding all qualifications hereof qualified as to materiality shall be true and exceptions relating to materialitycorrect, Material Adverse Effect or words of similar import, and such representations and warranties not so qualified shall be true and correct at and in all material respects, as of the date hereof of this Agreement and at and as of on the Closing Date as if made on such date (the Closing Date, except for such representations and warranties made expressly as of a specified date, date which shall be true and correct only in the manner previously described as of such specified date), with only ; and the Buyer shall have received a certificate signed on behalf of the Seller by Xxxx Xxxxxxx Xxxxx or another executive officer thereof to such exceptions effect dated as would not, individually or in of the aggregate, have a Material Adverse Effect.Closing Date; (b) 7.2.1.2 the Seller shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations covenants and covenants agreements required by this Agreement to be performed, satisfied performed or complied with by the Seller prior to or on the Closing Date; and the Buyer shall have received a certificate signed on behalf of the Seller by the time Xxxx Xxxxxxx Xxxxx or another executive officer thereof to such effect dated as of the Closing.Closing Date; (c) 7.2.1.3 the Seller shall have in place an approved IMMEX Program in respect of the Imported Assets; 7.2.1.4 during the Interim Period, there shall not have occurred any Material Adverse Change; 7.2.1.5 the Seller shall have delivered to the Buyer a certificate complete and accurate updated versions of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to ownSchedules hereto, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on current as at the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and such updated versions of such Schedules shall not have deviated in any material way from the Transferred Facilities and versions thereof attached to this Agreement at the Adjacent Leased Warehouse Facilities shall be free and clear time of all Liens other than Permitted Liens as of its execution by the Effective Time.parties hereto; and (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of 7.2.1.6 the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to the Buyer an affidavit of each of Seller and the closing deliveries referred to in Section 7.5 hereof. 7.2.2 If any affiliate condition in Section 7.2.1 hereof has not been fulfilled at or before the Closing Time or if any such condition is or becomes impossible to satisfy, other than as a result of Seller transferring Included Assets pursuant the failure of the Buyer to comply with its obligations under this Agreement, dated then the Buyer in its sole discretion may, without limiting any rights or remedies available to the Buyer at law or in equity, either: 7.2.2.1 terminate this Agreement by notice to the Seller, as provided in Section 9.1.2 hereof; or 7.2.2.2 waive compliance with any such condition without prejudice to its right of the Closing Date and substantially termination in the form set forth in Treasury Regulation Section 1.1445event of non-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties fulfilment of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each any other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxcondition.

Buyer’s Conditions to Closing. The It is a condition to Buyer’s obligation of Buyer to proceed to Closing and to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) contemplated hereby, that, as of the Closing of each of the following conditionsDate: (ai) The all of the Seller’s representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, hereunder shall be true and correct at in all material respects and as of the date Seller’s Closing Certificate delivered pursuant to Section 9 hereof and at and as of the Closing Date as if made on such date (except for such shall not disclose any material qualifications or material changes in Seller’s representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or set forth in the aggregate, have a Material Adverse Effect.Section 12 hereof; (bii) Seller shall have performed, satisfied or complied performed in all material respects with all agreements, obligations and of its covenants hereunder required to be performed by no later than Closing; (iii) this Agreement to be performed, satisfied or complied with by Seller by shall not have terminated during the time of the Closing.Contingency Period; (civ) Seller the Title Company shall have delivered be unconditionally committed to Buyer a certificate of Seller dated issue the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied.Title Policy at Closing; (dv) No Proceeding by any Governmental Authority The Buyer/Seller Lease shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, fully executed and be in full force and effect.; (gvi) The waiting period applicable to the transactions contemplated hereby under the XxxxBuilt-Xxxxxto-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination Suit Lease shall have been granted fully executed and any other consent, authorization, order, approval, declaration be in full force and filing required under any other Applicable Law effect; (vii) The Xxxx Street Lease Amendment shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter).fully executed and be in full force and effect; and (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (kviii) Seller shall have delivered all other documents and other deliveries listed in Section 9 hereof. If any condition to Buyer’s obligations set forth in this Section 8(b) is not fulfilled, then Buyer an affidavit shall have the right to terminate this Agreement by written notice to Seller delivered on or before the Closing Date (or such sooner date as is herein required), in which event the Deposit shall be returned to Buyer, all obligations of each the parties hereto shall thereupon cease (except for those which survive the early termination of this Agreement as expressly provided herein) and this Agreement shall thereafter be of no further force and effect, unless such failure of condition constitutes a default on the part of Seller and under any affiliate other provision of Seller transferring Included Assets pursuant to this Agreement, dated as of in which case the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning terms of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l11(b) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxalso apply.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) Seller shall conduct business at the Property in a good and diligent manner consistent with Seller's current business practices and shall maintain the Property in its present condition through the date of Closing, reasonable wear and tear excepted. (b) Seller have terminated, at Seller's sole cost and expense, all Service/Equipment Contracts except to the extent Buyer has given Seller written notice that certain Service/Equipment contracts should be continued and Buyer has assumed post Closing liability for such contracts, however, such services shall be continued at Seller's expense until the Closing Date. (c) The Title Company shall stand ready to issue the Title Policy in the form required herein. (d) Delivery by Seller at Closing of the Closing Documents described in Section 8 hereof. (e) Performance by Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to be performed by Seller pursuant to this Agreement and all of Seller's representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made anew on such date (except for such representations and warranties made as of a specified that date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each Delivery by Seller of Tenant Estoppel Certificates in the form attached hereto as Exhibit F for tenants comprising at least 80% of the Transferred Permits or filingsnet rentable square feet of the Property which shall include all Tenants listed in Exhibit F-1, the absence substance and content of which on shall be consistent with the Certified Rent Roll and Seller shall use commercially reasonable efforts to obtain the required Tenant Estoppel Certificates. Buyer shall cooperate with Seller post Closing Date would materially impair Buyer’s ability to operate complete collection of Tenant Estoppels. In the Businessevent sufficient Tenant Estoppels cannot be obtained, Buyer shall accept a Seller Estoppel in the form attached hereto as currently conducted (but excluding any such Transferred Permits or filings Exhibit F-2 and all post Closing Tenant Estoppels shall be delivered pursuant to the absence terms of which can be cured solely by Exhibit F-2. In the payment of money), must have been obtained or made as event that the conditions set forth therein, and on the terms and conditions described therein, and be above in full force and effect. this Section 6 are not satisfied (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date is not otherwise in default of this Agreement), there shall have been no change, event Buyer may elect to terminate this Agreement or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as waive satisfaction of the Closing Date condition and substantially close escrow in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian either instance by giving written notice to Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer BUYER to consummate the transactions provided for hereby is Closing shall be subject to the satisfaction (or waiver by BuyerBUYER) as of the Closing of each of the following conditions: (ai) The representations and warranties of Seller SELLER made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at in all respects (in the case of any representation or warranty containing any materiality qualification) or in all material respects (in the case of any representation or warranty without any materiality qualification), in each case as of the date of this Agreement and on and as of the date hereof and at Closing Date, as though made on and as of the Closing Date as if made on (unless and to the extent any such date (except for such representations and warranties made representation or warranty speaks specifically as of a specified an earlier date, in which shall be true and correct only case, as of such specified earlier date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. ; (bii) Seller SELLER shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by Seller SELLER by the time of the Closing. ; and (ciii) Seller SELLER shall have delivered to Buyer BUYER a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to SELLER confirming the effect that each of the conditions specified above in Sections 2.2(a) and foregoing. (b) has No injunction, suit, action, proceeding or order of any court or administrative agency of competent jurisdiction shall be threatened or pending (i) seeking to prohibit or impose any material limitations on BUYER's ownership or operation of all or a material portion of the Assets; (ii) seeking to restrain or prohibit the consummation of the Closing; or (iii) seeking to impose material limitations on the ability of BUYER effectively to exercise full rights of ownership of the Assets. (c) All material consents and approvals of any Person necessary to the consummation of the Closing, including consents and approvals from parties to loans, contracts, Leases or other agreements and consents and approvals from governmental agencies, whether federal, state or local shall have been satisfiedobtained, and a copy of each such consent or approval shall have been provided to BUYER at or prior to the Closing. (d) No Proceeding by Since the date hereof, there shall not have occurred any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on change (or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any material adverse change) regarding the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets Business or the Business after the ClosingAssets. (e) There shall not be any Applicable Law or Judgment that makes This Agreement and the purchase and sale of the Business or the Included Assets transactions contemplated hereby illegal or otherwise prohibitedshall have been approved and adopted by a majority vote of SELLER's shareholders. (f) Each SELLER shall have delivered to BUYER a duly executed and acknowledged certificate, in form and substance reasonably acceptable to BUYER and in compliance with the Code and Treasury Regulations, certifying such facts as to establish that the transactions contemplated by this Agreement are exempt from withholding under Section 1445 of the Transferred Permits Code. Notwithstanding anything expressed or filingsimplied to the contrary herein, if SELLER fails to provide BUYER with such a certification, BUYER may, in its sole and absolute discretion, waive the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of moneycondition set forth in this Section 2.2(f), must have been obtained or made as set forth therein, in which case BUYER shall withhold from the Purchase Price (and on pay over to the terms and conditions described therein, and be appropriate taxing authorities) the requisite amounts in full force and effectaccordance with Section 1445 of the Code. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law This Agreement shall have expired or early termination shall not have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)terminated in accordance with Article IX hereof. (h) The material Included Assets (other than the Transferred Facilities Section 12 of that certain Consulting Agreement dated June 2, 2000 by and the Adjacent Leased Warehouse Facilities) between Gary Kehoe and SELLER shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Timeamended to remove any restrictions on Xx. Xxxxx with respect to [*]. (i) Seller Procter & Gamble Compxxx xxxxl consent to BUYER performing the manufacturixx xxrvices of SELLER as set forth in that certain Joint Development Agreement between SELLER and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, Procter & Gamble Company dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3)November 22, as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax1999.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is hereunder are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions at or before Closing, the occurrence of which may, at the option of Buyer, be waived: (a) The All representations and warranties of Seller made in Article 3 disregarding all qualifications this Agreement and exceptions relating to materiality, Material Adverse Effect or words of similar import, each Schedule hereto shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) , and Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the such effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date Date; (b) There shall be no Material Adverse Event from the date hereof to the Closing Date; (c) Seller shall have performed and substantially in complied with all of its obligations under this Agreement which are to be performed or complied with by Seller prior to or on the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(ivClosing Date; (d) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address Seller shall be willing and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 able to deliver all of the Code oritems and documents required to be delivered by it pursuant to Article IV of this Agreement; (e) The form and substance of the documents delivered by Seller pursuant to this Agreement shall be reasonably acceptable to Buyer and Buyer's counsel; (f) There shall be no claims, actions or suits pending or threatened regarding the Assets other than those disclosed in Schedule 5.11 or that otherwise would restrict or prohibit Buyer or Seller from consummating the transactions contemplated herein; (g) Seller shall have obtained and delivered to Buyer all necessary consents to transfer the Assets and assign the Contracts to Buyer; and (h) During Buyer's review and investigation of the Assets, Buyer shall not have discovered (i) any material misrepresentations or omissions with respect to the disclosures previously made to Buyer, in the case context of negotiations of the affidavit transactions contemplated herein, concerning the Assets or the Branded Products; or (ii) any obligations or liabilities, contingent or otherwise, which do or reasonably could materially affect the value of any of the Canadian Seller, that none Assets in an amount in excess of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax$250,000.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditionsconditions in all material respects: (a) The representations the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of any required waiting period without the commencement of adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement. Notwithstanding the foregoing, regulatory approval will not be deemed obtained if such approvals obtained impose a condition or requirement reasonably deemed by Buyer to (i) significantly limit or impair the ability of the Buyer to operate the Branch as contemplated by it or materially increase the costs of such operations so as to eliminate the opportunity for the Buyer to realize a reasonable return on its investment over time on the operation of the Branch or (ii) adversely affect in a material way Buyer or its Affiliates with respect to their present business or activities; (b) each representation and warranty of Seller made in Article 3 disregarding this Agreement being true and correct in all qualifications and exceptions relating material respects (without giving effect to materiality, any materiality or Seller Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at and qualification provisions contained therein) as of the Closing Date as if though made on such date the Closing Date (except for such representations and warranties to the extent expressly made as of a specified an earlier date, in which shall be true and correct only case as of such specified date) and all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in all material respects; (c) Seller's delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the Assets; (ii) the Assignment of the Leased Realty by the landlord of the Leased Realty effective as of the Closing Date, including the Consent to Assignment of the Lease and Estoppel Certificate in a form substantially similar to the form attached hereto as Exhibit C with respect to the remaining term of the Lease with respect to the Leased Realty, duly executed by such landlord; (iii) a certificate executed by an appropriate officer of Seller attesting to Seller's compliance with the conditions set forth in Section 9.3(b); (iv) documentation executed by both parties with respect to the transfer of the trusteeship under the Retirement Plans; (v) any other consents or approvals required, with only other than regulatory approvals, if any, related to the transfer of the Fixed Assets or the Equipment Leases. (vi) a copy of a resolution of the Board of Directors or the Executive Committee of Seller approving this Agreement and the transactions contemplated hereby; (vii) a certificate from the Secretary or Assistant Secretary of Seller as to the incumbency and signatures of officers attesting to the authority of such exceptions officers to execute and deliver this Agreement and all related documents; and (viii) such other instruments and documents as would notshall be reasonably requested by Buyer, individually or all of which instruments and documents (as well as those listed above) shall be reasonably acceptable to Buyer; and (d) Buyer's agreement to receive the Closing Statement and the Settlement Payment as provided in Section 3.2, in a form substantially similar to that furnished pursuant to Section 9.2 herein, and Buyer's receipt in immediately available funds of the aggregate, have a Settlement Payment. (e) The absence of any Seller Material Adverse Effect. (bf) Seller shall have performedThe absences of any instituted or threatened claim, satisfied suit, damage or complied in all material respects with all agreements, obligations and covenants required by this Agreement litigation seeking to be performed, satisfied or complied with by Seller restrain the transaction contemplated by the time Agreement which is reasonably evaluated so as to have the effect of materially impairing the Buyer's ownership of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale operation of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedBranch. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is subject Closing are subject, at the option of Buyer, to the satisfaction (at or waiver by Buyer) as of the prior to Closing of each of the following conditions: (ai) The representations and warranties of by Seller made set forth in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, Section 7 shall be true and correct at and in all material respects as of the date hereof and at when made and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (cii) There shall have been no material adverse change in the condition of the Properties except depletion through normal production within authorized allowables and rates of production, depreciation of equipment through ordinary wear and tear, and other transactions permitted under this Agreement or approved in writing by Buyer between the date of this Agreement and Closing. (iii) All requirements made by Buyer with regard to inspections of the Properties shall have been fully satisfied or waived by Buyer. All consents, approvals and authorizations of assignments and waivers of preferential rights to purchase required by Buyer shall have been submitted to and approved by Buyer. (iv) The Seller shall have performed or complied with all agreements and covenants of Seller required by this Agreement of which performance or compliance is required prior to or at Closing. - (v) All legal matters in connection with and the consummation of the transactions contemplated by this Agreement shall be approved by counsel for Buyer and there shall have been furnished by Seller such records and information as Buyer’s counsel may reasonably request for that purpose. (vi) Operations of the Properties shall have been transferred from Seller to Buyer. (vii) Seller shall have delivered provided Buyer with copies of releases, in forms reasonably satisfactory to Buyer a certificate Buyer, of Seller dated any liens or encumbrances affecting the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedProperties, except for Permitted Encumbrances. (dviii) No Proceeding by suit, action or other legal proceeding shall be pending or threatened, before any Governmental Authority shall have been instituted that seeks court, arbitration panel or governmental agency seeking to enjoin restrain, prohibit or prohibit the transactions contemplated hereby declare illegal, or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes seeking substantial damages in connection with the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have which might result in a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit material loss of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as portion of the Closing Date and substantially Properties, a material diminution in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties value of perjury that such Person is not a “foreign person” within the meaning of Section 1445 any of the Code orProperties, in or materially interfere with the case use or enjoyment of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxProperties.

Buyer’s Conditions to Closing. The Buyer's obligation of Buyer to consummate close the transactions provided for hereby is transaction contemplated herein shall be subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions precedent: (ai) The representations and warranties of Seller made and Members contained in Article 3 disregarding all qualifications this Agreement and exceptions relating to materiality, Material Adverse Effect or words of similar import, the Auxiliary Agreements shall be true and correct at and in all material respects on the Closing Date with the same effect as of the date hereof and at if they were made on and as of the Closing Date as if made on Date, except that any such date (except for such representations representation and warranties warranty made as of a specified date, which date (other than the date of this Agreement) shall be have been true and correct only in all material respects on and as of such specified date); (ii) Seller and Members shall have performed in all material respects all obligations and agreements and complied with all covenants contained in this Agreement and the Auxiliary Agreements, with only such exceptions as would not, individually or in any documents delivered in connection herewith, that are required to be performed and complied with by it or him, as applicable, on or before the aggregate, have a Material Adverse Effect.Closing Date; (biii) Buyer shall have received a certificate from Seller and Members, executed on behalf of Seller by its duly authorized officer, and by Members, individually, certifying that the conditions specified in Sections 3.3(a)(i) and 3.3(a)(ii) have been satisfied (the "Seller's Closing Certificate"); (iv) No suits, actions or other proceedings shall have been filed by any party seeking to prevent the Closing or otherwise restrain the transaction contemplated herein or seeking damages in connection therewith; (v) Buyer shall, in its sole discretion, be satisfied with the results of Buyer's due diligence with respect to the Assets; (vi) Seller shall have performed, satisfied obtained and delivered to Buyer all written consents of the other party to each Contract which by its terms or complied in all material respects with all agreements, obligations and covenants required otherwise require the consent of such party to the transactions contemplated by this Agreement; (vii) Buyer shall have received approval of this Agreement to be performed, satisfied or complied with by Seller its Board of Directors; (viii) Buyer shall have received approval of this Agreement by the time Board of the Closing.Directors of WCA Waste Corporation; (cix) [intentionally omitted] (x) Seller shall have delivered provided evidence satisfactory to Buyer a certificate that, as of Seller dated the Closing Date Date, all permits, licenses and signed by an authorized officer governmental approvals of Seller to whatever kind and nature necessary for the effect that each operation of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority Assets shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase granted and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be are in full force and effect.; (gxi) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law There shall have expired occurred no material damage, destruction, loss, or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive material adverse change in the requirement condition of an advance ruling certificate or “no-action” letter). (h) The material Included the Assets (other than whether or not covered by insurance) between the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the execution date of this Agreement, there Agreement and the Closing; and (xii) The Closing of each and every of the Auxiliary Agreements shall have been no change, event closed or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit closing contemporaneously with the Closing of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of the Buyer to consummate the transactions provided for contemplated hereby is subject at the Closing are subject, at the option of the Buyer, to the satisfaction (or waiver by Buyer) as of at or prior to the Closing of each of the following conditions: (a) The All representations and warranties of Seller made the Sellers contained in Article 3 disregarding all qualifications this Agreement and exceptions relating to materiality, Material Adverse Effect or words of similar import, the Ancillary Agreements shall be true and correct at and as of the date hereof and in all material respects at and as of the Closing Date as if made on and the Sellers shall have performed and satisfied in all material respects all obligations required by this Agreement and the Ancillary Agreements to be performed and satisfied by the Sellers at or prior to the Closing. The Sellers shall have provided the Buyer with certificates executed by a responsible officer of the Sellers to such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.effect; (b) Seller No stay or injunction shall have performedbeen obtained by a court of competent jurisdiction restraining, satisfied prohibiting or complied in all material respects with all agreements, obligations declaring illegal the purchase and covenants required sale contemplated by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.Agreement; (c) Seller The Bankruptcy Court shall have delivered to Buyer entered the Sale Order and the Sale Order shall be a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied.Final Order; (d) No Proceeding All material Consents required to be obtained by any Governmental Authority the Sellers for the Closing shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.obtained; (e) There The Bankruptcy Court shall not have entered the Confirmation Order and the Confirmation Order shall be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibiteda Final Order. (f) Each No less than 75% of the Consignment Vendors, based upon the aggregate Sellers’ book value of all of the Consignment Goods that are Transferred Permits or filingsInventory, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect.are Consenting Consignment Vendors; (g) The waiting period applicable No less than 65% of the Trade Creditors supplying goods and/or services to the transactions contemplated hereby under Sellers within 12 months before the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Petition Date based upon the aggregate Sellers’ book value of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtainedgoods and/or services supplied to the Sellers within 12 months before the Petition Date, including Competition Act Clearance all of the original members of the Official Committee of Unsecured Creditors appointed in the Cases, agree in writing to provide Trade Terms to the Post-Closing Business for no less than one (provided that Buyer may at its sole option waive 1) year following the requirement of an advance ruling certificate or “no-action” letter).Closing Date; and (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates Sellers shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents required to be executed and delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax3.2.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditionsconditions in all material respects: (a) The representations the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words any required waiting period without the commencement of similar import, shall be true and correct at and as of adverse proceedings by any governmental authority with jurisdiction over the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.transactions contemplated by this Agreement; (b) each representation and warranty of Seller shall have performed, satisfied or complied in this Agreement being true and correct in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in all material respects; (c) Seller's delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) Titles conveying the Real Property; (ii) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the remaining Assets, and appropriate documentation with respect to the transfer of the trusteeships under the Retirement Plans; (iii) a certificate executed by an appropriate officer of Seller attesting, to the officer's best knowledge, to Seller's compliance with the conditions set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv9.3(b); and (iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under estoppel certificates executed by the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 lessors of the Code orLeased Branches, to the extent Seller can obtain such certificates using its reasonable best efforts and without the payment of any unreasonable fees to such lessors; and (d) Buyer's agreement to receive the Closing Statement and the Settlement Payment as provided in Section 3.2, in the case of the affidavit of the Canadian Seller, a form substantially similar to that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide furnished to Buyer at the Closing a certificate pursuant to Section 6 9.2 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxthis Agreement.

Buyer’s Conditions to Closing. The Unless waived in writing by the Buyer, the Buyer’s obligation of Buyer to consummate purchase the transactions provided for hereby Assets and assume the Liabilities from the Seller is contingent upon and subject to the satisfaction (fulfillment or written waiver by Buyer) as of the Closing of each of the following conditions: (a) The the parties obtaining all contractual, regulatory and other third party approvals and consents that are required for them to proceed with the transactions contemplated by this Agreement, including the prior approval of certain regulatory bodies such as the Georgia Department of Banking and Finance and the Federal Deposit Insurance Corporation, and the expiration or termination of any required waiting period; (b) the representations and warranties of the Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be this Agreement being true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date without giving effect to any qualification of knowledge or materiality (except provided, however, that for purposes of determining the satisfaction of the condition contained in this Section 9.3(b), such representations and warranties made as of a specified date, which shall be deemed to be true and correct only as if the failure or failures of such specified date), with only such exceptions as would notrepresentations and warranties to be so true and correct do not constitute or give rise to, individually or in the aggregate, have a Seller Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.); (c) all covenants and agreements of the Seller to be performed or met by the Seller on or before the Closing Date having been performed or met in all material respects; (d) on the Closing Date no regulatory, administrative or judicial action, suit, demand or proceeding shall be threatened or pending against the Buyer, the Seller, the Branches or any of the management or other Employees (in their capacity as such), which might reasonably be expected to (i) materially and adversely affect the business, properties, assets or financial condition of the Branches or the ability of the Buyer to operate the Branches or (ii) materially and adversely affect the transactions contemplated by this Agreement; (e) the Buyer shall have received all financial, accounting and other records related to the Assets, the Liabilities and the Branches that the Buyer reasonably requested; (f) the Deposits transferred on the Closing Date shall equal or exceed $182,266,688; (g) the Seller shall have delivered such documents and instruments as may be requested by the Buyer’s title insurance company, each in form and substance satisfactory to Buyer the title insurance company, including affidavits of title, in order for the title insurance company to issue an extended coverage owner’s policy of title insurance with respect to the Owned Real Property, together with zoning, comprehensive, access, survey, contiguity, and tax parcel endorsements; and (h) there shall not have occurred a certificate Seller Material Adverse Effect, and no event or circumstance shall exist that, in combination with any other events or circumstances (excluding events or circumstances of the type contemplated by the proviso to the definition of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that Material Adverse Effect), could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement; provided, dated as of the Closing Date and substantially however, in the form event that the condition set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv9.3(f) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not satisfied, Buyer and Seller shall negotiate in good faith a “foreign person” within mutually acceptable revision to the meaning of Section 1445 component of the Code or, Purchase Price set forth in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax3.1(a)(ix).

Buyer’s Conditions to Closing. The obligation of A. Buyer to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of have from the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performedthrough and including January 31, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own2004, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”"Due Diligence Period") or any similar foreign Applicable Law shall have expired or early termination shall have been granted to perform its due diligence inspections and any other consentto conduct such investigations and tests as it may determine advisable, authorizationincluding, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time.but not limited to: (i) reviewing existing soil tests, engineering studies, environmental studies, surveys, permits, title policies, rent rolls, operating statements and performing at its expense market studies, investment evaluations, new soil tests, engineering, or environmental studies that it deems necessary; (ii) reviewing all lease documents of current tenants, ground leases and reciprocal easement agreements; (iii) performing at its expense structural inspections and mechanical inspections of all appropriate devices, including RTU's and roof inspections; (iv) reviewing governmental requirements relating to special assessments, entitlements, zoning, stormwater management issues, and parking requirements, current and proposed; (v) communicating with tenants and public officials regarding the Premises; and (vi) communicating with Lender (hereinafter defined) regarding the Loan (hereafter defined) and Buyer's assumption thereof. B. In the conduct of its due diligence, Buyer agrees as follows: (i) Such tests, inspections and investigations on the Premises shall take place during normal business hours upon reasonable notice to Seller or its designated agents and Seller's consent (which will not be unreasonably withheld, delayed or conditioned) shall be required prior to the performance of any drilling, boring or other invasive testing or procedures; (ii) Except as may be required by Buyer to complete its applicable Affiliates due diligence during the Due Diligence Period, all information set forth in the documents to be reviewed hereunder by Buyer, its employees and agents, attorneys, brokers and lenders shall have executed be held in strict confidence until Closing and thereafter in the event that Closing does not occur; (iii) In the event the Closing does not occur, Buyer shall promptly return to Seller any documents obtained from Seller or Seller's agents, and any documents obtained from third parties which relate in any way to the Premises; (iv) Buyer shall not suffer or permit any lien, claim or charge of any kind whatsoever to attach to the Premises or any part thereof; (v) Such tests, investigations and studies shall be at Buyer's sole cost and expense and shall not unreasonably interfere with the operation of the Premises. In the event of any damage to the Premises caused by Buyer, its agents, engineers, employees, contractors or surveyors (including, without limitation, pavement, landscaping and surface damage), Buyer shall pay the cost incurred by Seller to restore the Premises to the condition existing prior to the performance of such tests, investigations or studies; and (vi) Buyer shall defend, indemnify and hold Seller harmless from any and all liability, cost and expense (including without limitation, reasonable attorneys' fees, court costs and costs of appeal) suffered or incurred by Seller for injury to persons or property caused by Buyer's investigations, tests, studies and inspections of the Premises, unless caused by the negligence or intentional misconduct of Seller or any Tenants. C. In the sole discretion and at the sole election of Buyer, Buyer may, during the Due Diligence Period, terminate this Agreement. If Buyer notifies Seller, in writing, on or before 5:00 p.m. (Detroit time) on or before last day of the Due Diligence Period of Buyer's election to terminate this Agreement, this Agreement shall terminate, the Xxxxxxx Money and all interest earned thereon shall be delivered to Buyer each within two (2) business days, Buyer shall promptly deliver to Seller all copies of the Collateral Agreements to which Seller documents, studies and reports obtained by Buyer in connection with its applicable Affiliates are a partyDue Diligence, and Buyer the parties hereto shall have received the other agreements, instruments and documents no further obligations hereunder (except for obligations which are expressly intended to be delivered to it under Section 2.1(b). (j) Since the date survive termination of this Agreement). If Buyer fails to notify Seller, there shall have been no changein writing, event on or development that has had or would reasonably be expected before 5:00 p.m. (Detroit time) on the aforesaid date of Buyer's election to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to terminate this Agreement, dated Buyer's right to terminate this Agreement under this Section shall expire, Buyer shall be obligated to post the additional $50,000 in Xxxxxxx Money (described in Section 1 hereof), and Buyer's Xxxxxxx Money shall become non-refundable, except as of the Closing Date specifically and substantially in the form otherwise set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxherein.

Buyer’s Conditions to Closing. The obligation of Buyer Buyers to consummate the transactions provided for hereby contemplated by this Agreement is subject to the satisfaction (or waiver by BuyerBuyers' written waiver) of the following conditions as of the Closing of each of the following conditionsDate: (a) 4.2.1 The representations and warranties of Seller made set forth in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, 5 shall be true and correct at and as of the date hereof and at and as of the Closing Date as if though then made on such date (except for such other than those representations and warranties made that address matters as of a specified date, particular dates which shall be true and correct only at and as of such specified dateparticular dates), with only except for inaccuracies that are de minimis in amount and effect, disregarding, solely for such exceptions as would notpurpose, individually all qualifications contained herein regarding materiality or in the aggregate, have a Material Adverse Effect.; (b) Seller 4.2.2 The Company Parties shall have performed, satisfied or complied performed in all material respects with all agreements, obligations of the covenants and covenants agreements required to be performed by them under this Agreement at or prior to the Closing; 4.2.3 The consents and approvals required to be performed, satisfied or complied with by Seller obtained by the time of Company Parties to effect the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority transactions contemplated hereby, including those set forth on Schedule 5.3, shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b).Buyers; (j) 4.2.4 Since the date of this Agreement, there shall not have been no change, event or development that has had or would reasonably be expected to have occurred a Material Adverse Effect.Effect on the Business or any Company; 4.2.5 All of the conditions to closing the Equity Financing shall have occurred or been waived by the applicable parties, and the funding of the Equity Financing shall have occurred or shall occur substantially concurrently with the consummation of the transactions contemplated by this Agreement; 4.2.6 All of the conditions to each of (ki) Seller closing the Debt Financing and (ii) consummating the transactions contemplated by this Agreement as a "Permitted Acquisition" under and as defined in the ABL Agreement and the Term Loan Agreement shall have occurred or been waived by the applicable parties; and the funding under the Incremental Amendment shall have occurred or shall occur substantially concurrently with the consummation of the transactions contemplated by this Agreement; 4.2.7 The transactions contemplated in the Xxxx of Sale shall have occurred, and a duly executed copy of the Xxxx of Sale shall have been delivered to Buyers; 4.2.8 The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated; 4.2.9 No judgment, decree or order shall have been entered which would prevent the consummation of the Closing; 4.2.10 The Company Parties shall have delivered to Buyer an affidavit Buyers each of the following: (a) a certificate of each of Seller and any affiliate of Seller transferring Included Assets pursuant Company Party in the form reasonably satisfactory to this AgreementBuyers, dated as of the Closing Date Date, stating that the preconditions specified in Sections 4.2.1 and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv4.2.2 have been satisfied, duly executed by, (i) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of Company Parties that are limited partnerships, the affidavit general partner, (ii) in the case of Company Parties that are limited liability companies, the manager(s) and (iii) in the case of Company Parties that are natural persons, such natural person; (b) with respect to each Entity Company Party, (i) a certificate of the Canadian Sellergeneral partner or manager of such Entity Company Party, as the case may be, certifying to and attaching a copy of such Entity Company Party's Organizational Documents, a certificate of fact of good standing and (ii) Texas tax clearance certificate(s) with respect to such Entity Company Party that covers all franchise and sales and use Taxes and personal property Taxes, each dated as of a date no more than 20 Business Days prior to the Closing Date, (iii) resolutions adopted by such Entity Company Party's governing body and partners or members, as the case may be, authorizing the Transaction Documents and the transactions contemplated herein and therein, and (iv) incumbency certificates, each in the form reasonably satisfactory to Buyers and dated as of the Closing Date; (i) a Lease Termination and Release, duly executed by the lessor and the lessee under that certain Lease Agreement, dated April 1, 2016, between A. Xxxxx Xxxxxxxx and CP, for the real property located at 000 Xxxxx Xxxxxx, Unit 210 and 220, Austin, TX, as amended or restated through the Closing Date, and (ii) evidence acceptable to Buyers of the termination of each real property lease (other than the lease referenced in clause (i) above) pursuant to which any Real Property Owner is the lessor and a Company is a lessee; provided, however, that none in connection with the termination of each such real property lease, each Real Property Owner shall forever release and discharge each Company, its successors, assigns, affiliates, officers, directors, members, managers, employees, agents and attorneys, from any and all actions, causes of action, suits, claims, and demands, of every kind and nature whatsoever whether known or unknown, mutual mistake of fact notwithstanding, that any Real Property Owner ever had, now has, or may have had, against any Company or its successors, assigns, affiliates, officers, directors, members, managers, partners, employees, agents or attorneys, arising out of such real property leases, expressly including those obligations and indemnifications that otherwise would have survived the expiration or earlier termination of the Included Assets transferred relevant real property leases as provided therein or by applicable Laws; (d) an executed landlord estoppel certificate in form and substance acceptable to Buyers for each of the Third Party Leases, but excluding any Third Party Lease which is month-to-month; (e) a certificate duly executed by the Canadian Seller is Company Parties (i) certifying that the employees of the Companies, which have been requested in writing by Buyers at least five Business Days prior to the Closing, have resigned or been terminated prior to or concurrently with the Closing; (f) Assignments, duly executed by the Sellers; (g) a U.S. Lease Agreement, with respect to each real property interestlocation described on Annex A, in a form reasonably satisfactory to the parties, duly executed by the Real Property Owner party thereto; (h) the Escrow Agreement, duly executed by the Sellers, the Companies and the Escrow Agent; (i) the Restrictive Covenant Agreements, in a form reasonably satisfactory to Buyers, each duly executed by CP and the Employees named therein; (j) the Transition Services Agreement, duly executed by the Sellers; (k) (i) the Payoff Letters with respect to all Indebtedness set forth on Schedule 3.2, and (ii) releases of the Liens set forth on Schedule 3.2; (l) Seller shall obtain a certificate of the Sellers’ non-foreign status that complies with the requirements of Sections 1445 and provide 1446(f) of the Code, and the regulations promulgated thereunder; (m) an opinion of counsel to Buyer at the Company Parties, dated the Closing a certificate pursuant Date, addressed to Section 6 Buyers, and in form and substance acceptable to Buyers; and (n) resolutions duly adopted by the partners of CP and ASC and by the Retail Sales Tax Act (Ontario) manager and a certificate pursuant member of MCS ratifying all prior company actions and the appointment of persons authorized on their behalf to similar legislation act, in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up form and substance acceptable to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxSellers and Buyers.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is under this Agreement are subject to the satisfaction (at or waiver by Buyer) as of the prior to each Applicable Closing of each of the following conditions, but compliance with any or all of any such conditions may be waived, in writing, by Buyer: (a) The Except for the representations in Section 7.3(b)(i) and (iv), the representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement that are qualified as to materiality, Material Adverse Effect or words of similar import, materiality shall be true and correct at in all respects and as of the date hereof and at and as of the Closing Date as if made on such date (except for such those representations and warranties made as of a specified date, which not so qualified shall be true and correct only as of such specified in all material respects, in each case, on the date hereof and on the Closing Date (except to the extent that they expressly relate to an earlier date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.; (b) Seller shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations the covenants and covenants agreements contained in this Agreement and satisfied all the conditions required by this Agreement to be performed, satisfied performed or complied with or satisfied by Seller by it or them at or prior to the time of the Closing.Applicable Closing Date; (c) Seller shall have received the Parent Shareholder Approval and delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied.Parent Shareholder Approval Evidence; (d) No Proceeding by any Governmental Authority between the date hereof and the Applicable Closing Date, there shall not have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect any Material Adverse Effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Purchased Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which to be transferred on the such Applicable Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits and no fact or filings the absence of condition shall exist or be threatened which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect.Effect thereon; (ke) Seller shall have delivered to Buyer an affidavit either (a) documents, in form and substance reasonably satisfactory to Buyer, demonstrating the release of each all Encumbrances (except Permitted Encumbrances) on the applicable Purchased Assets, or (b) customary pay-off letters or similar acknowledgments of the discharge of any indebtedness for borrowed money of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated setting forth the amount owed as of the Applicable Closing Date and substantially indicating that upon payment of such amount, such indebtedness will be discharged in full and all related Encumbrances (except Permitted Encumbrances) on the form applicable Purchased Assets will be released and removed; (f) unless Buyer can operate under the terms of Section 7.12, Buyer shall have obtained all licenses, permits, NCPDP numbers, Medicaid or Medicare numbers, or similar items required to operate the Business as set forth at Schedule 9.2(f) (the “Required Licenses”) (either by transfer of Seller’s Transferable Permits to the extent permitted by law or its receipt of new licenses, permits or numbers, provided, however that as soon as reasonably possible after execution of this Agreement but in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under no event prior to the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 filing of the Code orInformation Statement, Buyer will file its application for the Required Licenses); (g) there shall be no legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement threatened, pending or in effect, including any order, injunction, judgment or decree issued by any court or other Governmental Body, any order or request by any Governmental Body seeking to restrain, enjoin or otherwise prevent or delay the consummation of the transactions contemplated by this Agreement or any action, suit or proceeding instituted by any Person or entity before a court or Governmental Body, which restrains or prevents the consummation of the transactions contemplated by this Agreement; (h) Seller shall have granted access to Buyer to interview the Business Employees pursuant to Section 7.1(b); (i) Parent shall have complied with all applicable requirements of Regulation 14C of the Exchange Act; (j) with respect to the Purchased Assets and Assumed Liabilities to be transferred on the Applicable Closing Date, Seller shall have delivered all documents required to be delivered under Section 4.3; (k) with respect to the Purchased Assets and Assumed Liabilities to be transferred on the Applicable Closing Dates, Seller shall have received the Required Lease Consents, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest;form and substance reasonably satisfactory to Buyer; and (l) with respect to each Operate Location Pharmacy (and the Purchased Assets related thereto), Seller shall obtain and provide to Buyer at the Closing a certificate have made such location available for Installation pursuant to Section 6 7.10(c) during the forty-five (45) day period after the date hereof, provided that if such Installation is not complete as of the Retail Sales Tax Act (Ontario) and such date, Buyer may delay a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid Subsequent Closing Date until up to sixty (60) days after the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxdate hereof.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer’s obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditionsconditions in all material respects: (a) The representations the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of any required waiting period without the commencement of adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement; (b) each representation and warranty of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be this Agreement being true and correct at and as of the date hereof and at and in all material respects as of the Closing Date as if made and all covenants and conditions of Seller to be performed or met by Seller on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in before the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied Closing Date having been performed or complied met in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.respects; (c) Seller shall have delivered Seller’s delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller’s right, title, and interest in and to the Assets; (ii) a certificate of Seller dated the Closing Date and signed executed by an authorized appropriate officer of Seller attesting, to the effect that each officer’s best knowledge, to Seller’s compliance with the conditions set forth in Section 9.3(b); (iii) documentation executed by both parties with respect to the transfer of the conditions specified above in Sections 2.2(atrusteeship under the Retirement Plans; (iv) the Assignment of the Leased Realty by the Landlord effective as of the Closing Date; and (v) the Subordination Agreement executed by the Landlord and (b) has been satisfiedthe Seller. (d) No Proceeding by any Governmental Authority shall have been instituted Buyer’s receipt of the Closing Statement and the Settlement Payment as provided in Section 3.2, in a form substantially similar to that seeks furnished pursuant to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingSection 9.2 herein. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained no structural or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable other damages to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since Realty not covered by insurance between the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller Agreement and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in which prevents the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 continued operations of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxBranch.

Buyer’s Conditions to Closing. The In addition to all other conditions set forth herein, the obligation of Buyer Buyers to consummate the transactions provided for hereby contemplated hereunder is subject to the satisfaction following conditions (each, a “Buyers’ Closing Condition”), all of which may be waived by each Buyer in its sole discretion. In the event any Buyers’ Closing Condition remains unfulfilled at Closing, Buyers may terminate this Agreement or waiver by Buyer) waive such condition and proceed with Closing as of the Closing of each of the following conditionsprovided for in this Agreement: (a) A. The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be set forth herein are true and correct at and as of the date hereof and at and as of the Closing Date as if made on Date. B. The Court shall have entered the Sale Order, and no stay of such date (except for such representations and warranties made as of a specified date, which order shall be true in effect. In connection therewith, Seller hereby covenants and correct only agrees that as soon as reasonably possible after the execution of this Agreement by each Buyer, Seller shall file and serve a motion and supporting papers to seek approval of the Court of this Agreement and for entry of the Sale Order. Buyers will have the opportunity to review and approve the motion for approval of the Sale Order before it is filed and served. Seller shall use all reasonable efforts to obtain such specified date), with only such exceptions entry as would not, individually or in the aggregate, have a Material Adverse Effectsoon as reasonably possible. (b) C. Seller shall have performeddelivered to Buyers evidence of (i) all governmental, satisfied or complied in all material respects court, regulatory and third party approvals, consents and/or waivers as may be required under the laws of the United States to consummate the transactions contemplated hereby and (ii) compliance with all agreementsregulatory, obligations court and governmental requirements, including proof acceptable to the Buyers that, upon transfer to the Buyers, the Buyers will receive, subject to Section 6(d) valid title to the Securities, free and clear of all Liens. In connection therewith, Seller hereby covenants required by and agrees that as soon as reasonably possible after the execution of this Agreement by each Buyer, Seller shall seek such approvals, consents and/or waivers, and use all reasonable efforts to be performedobtain such approvals, satisfied or complied with by Seller by the time of the Closingconsents and/or waivers as soon as reasonably possible. (c) D. Seller shall have delivered the Xxxx of Sale, fully executed by Seller. E. The Company and Seller shall have entered into the Conversion Agreement. F. Seller shall have cancelled all agreements entered into between Seller and Superior, including, but not limited to, the Credit Agreement. G. Seller shall have delivered all third party approvals, consents and/or waivers as may be required under the contracts of Seller. H. Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date original stock certificates and signed by an authorized officer of Seller to original warrants representing all the effect that each of the conditions specified above Securities set forth in Sections 2.2(a) and (b) has been satisfiedSchedule 1 hereto. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) I. Seller shall have delivered evidence reasonably satisfactory to Buyer Buyers that either the Antiguan Petition has been dismissed or the Court has issued an affidavit order in respect of each the Antiguan Petition and such order (i) (A) does not recognize the Antiguan receivers-liquidators as “foreign representatives” under Chapter 15 of Seller and any affiliate of Seller transferring Included Assets the United States Bankruptcy Code or (B) contains a finding or holding that the proceeding pending in Antigua pursuant to this Agreement, dated as of which the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445Antiguan receivers-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is liquidators were appointed does not constitute a “foreign personmain proceeding” within the meaning of Section 1445 Chapter 15 of the United States Bankruptcy Code or, in or (ii) does not prohibit the case transfer of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax’s assets.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is under this Agreement are subject to the satisfaction (at or waiver by Buyer) as of prior to the Closing of each of the following conditions, but compliance with any or all of any such conditions may be waived, in writing, by Buyer: (a) The representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement that are qualified as to materiality, Material Adverse Effect or words of similar import, materiality shall be true and correct at in all respects and as of the date hereof and at and as of the Closing Date as if made on such date (except for such those representations and warranties made as of a specified date, which not so qualified shall be true and correct only as of such specified in all material respects, in each case, on the date hereof and on the Closing Date (except to the extent that they expressly relate to an earlier date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.; (b) Seller shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations the covenants and covenants agreements contained in this Agreement and satisfied all the conditions required by this Agreement to be performed, satisfied performed or complied with or satisfied by Seller by it or them at or prior to the time of the Closing.Closing Date; (c) On the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated by this Agreement and no action, suit or proceeding shall have been instituted by any Person or entity, or threatened by any Governmental Body, before a court or Governmental Body, to restrain or prevent the carrying out of the transactions contemplated by this Agreement; (d) Seller shall have delivered all documents required to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.delivered under Section 4.3; (e) There Buyer shall not be any Applicable Law have obtained all licenses, permits, NCPDP numbers, Medicaid or Judgment that makes the purchase and sale of Medicare numbers, or similar items required to operate the Business (either by transfer of Seller’s Transferable Permits to the extent permitted by law or its receipt of new licenses, permits or numbers), provided, however that as soon as practicable after the Included Assets contemplated hereby illegal date hereof Buyer will file its application for all required licenses, numbers, or otherwise prohibited.similar items required to operate the Business and thereafter shall use all commercially reasonable efforts to obtain such licenses, numbers or similar items as soon as possible; and (f) Each To the extent required under applicable law, rules and regulations, stock exchange rules and Nyer Board of the Transferred Permits or filings, the absence Director resolutions a sufficient number of which on the Closing Date would materially impair BuyerNyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence shareholders of which can be cured solely by the payment each class of money), must its stock shall have been obtained or made as set forth therein, and on the terms and conditions described therein, and be voted in full force and effect. (g) The waiting period applicable to favor of the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxAgreement.

Buyer’s Conditions to Closing. The Buyer’s obligation of Buyer to consummate purchase the transactions provided for hereby Purchased Assets is subject to conditioned upon the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions each of which is for the exclusive benefit of Buyer. Buyer may, at any time or times before the Closing, waive one or more of the following conditions, without affecting its rights and remedies with respect to the remaining conditions: (a) 11.1 The representations performance by Seller of all its obligations hereunder, and warranties the truth, completeness and accuracy of each representation and warranty made by Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof Contract Date and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each 11.2 Buyer’s approval of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Purchased Assets pursuant to this AgreementSection 9 -Due Diligence Period. 11.3 The receipt of an opinion of counsel for the Partnership, dated as of the Closing Date Date, in a form to be mutually agreed upon by the parties and substantially their respective counsel containing those opinions set forth on Exhibit E. 11.4 The execution by Seller of the Asset Purchase Agreement/LLC Membership Interest in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3attached hereto as Exhibit F (“SGV Agreement”), pursuant to which, Buyer will purchase Seller’s interest in Xxxxx Xxxxxxxx Vineyards, LLC, a California limited liability company (“SGV”) for a purchase price of $1,000,000. The parties shall endeavor to close the SGV transaction as applicablesoon as possible after the Closing but in no event later than December 31, setting forth 2005. If, despite the reasonable efforts of the parties, the SGV closing has not occurred on or prior to December 31, 2005, the SGV Agreement will be terminated. The failure to consummate the purchase of SGV does not have any effect whatsoever, in law or equity, with respect to the Purchase Price paid by Buyer to Seller under this Agreement. 11.5 The issuance of an ABC Temporary Permit that will allow Buyer to operate the Winery and the Wine Bar on the Closing Date along with the receipt of all other necessary forms, documents or writings signed by Seller, including powers of attorney limited exclusively to the Seller’s operations with respect to the Winery, the Wine Bar and the Restaurant, for the purpose of allowing Buyer to operate under Seller’s Federal TTB Wine Producer’s and/or Blender’s Bonded Winery Basic Permit and under any other alcohol related licenses and permits until Buyer is able to obtain its own such Personlicenses and permits (collectively, “Alcohol Licenses”). Seller agrees to properly execute all documents reasonably requested by Buyer within 3 days of request therefor and to take all other reasonable steps, including opening a separate liquor license escrow account (“Liquor Escrow”), in order to accomplish the transfer of the Alcohol Licenses on the Closing Date. The Liquor Escrow will be funded by Buyer with $25,000, the agreed upon value of the type 41 license for the Restaurant, the alcoholic beverage inventory at the Restaurant and the alcoholic beverage related FF&E (furnishing, fixtures, and equipment) at the Restaurant. When the permanent type 41 license is issued to Buyer, which the parties acknowledge will occur after the Closing, the proceeds held in the Liquor Escrow will be released to Seller. 11.6 This Section Intentionally Left Blank. 11.7 Buyer shall have received funding in the amount of $30,000,000 from its lender Laurus Master Fund, Ltd. in an amount sufficient to pay the Purchase Price on terms acceptable to Buyer. 11.8 Buyer shall have received all consents from its Board of Directors to the extent deemed reasonably necessary by Buyer. 11.9 Seller shall have delivered evidence reasonably satisfactory to Buyer that it has obtained all required third party consents (including consents to transfer the Restaurant Lease, the Wine Bar Lease, and the Warehouse Lease and consents by GE, KeyCorp and Xxxxx Fargo to transfer the equipment subject to the equipment leases to Buyer and applicable consents from governmental authorities) to the transactions contemplated hereby. In order to effectuate the transfer of the equipment that is subject to the equipment leases, the parties agree to work together in good faith to structure the transfer in such a way that will be acceptable to the equipment lenders. The parties agree that among other things, the transfer structure may require Buyer to prepay 6 months of lease payments at Closing and, if necessary, the continuation of the existing lease agreements and guaranties for a period of 6 months while Buyer negotiates with the existing lenders and, if necessary, attempts to refinance the equipment leases with new lenders. 11.10 The issuance by the Title Company of an ALTA Owner’s namePolicy of Title Insurance in a form acceptable to Buyer insuring that fee title in the Real Property is vested in Buyer subject only to those exceptions reasonably acceptable to Buyer with such endorsements as Buyer reasonably requests (“Owner’s Title Policy”), address the issuance by the Title Company of a lender’s ALTA Policy of Title Insurance in form acceptable to Buyer’s lender, with such endorsements as the lender requests (“Lender’s Title Policy”) and, if Buyer so elects, Leasehold Policies of Title Insurance in forms acceptable to Buyer insuring Buyer’s interest in the Warehouse Lease, the Wine Bar Lease and Federal employer identification number and stating the Restaurant Lease, subject only to those exceptions reasonably acceptable to Buyer with such endorsements as Buyer reasonably requests (collectively, the “Leasehold Title Policy”). If required by the Title Company in order to issue the Leasehold Title Policy, Seller will use its best efforts to cause the lessors under the penalties Warehouse Lease, the Wine Bar Lease and the Restaurant Lease to execute and allow the recordation of perjury that short form memorandas of such Person is not a leases (the “foreign person” within Memoranda”). Seller also agrees to use its best efforts to obtain estoppel certificates prior to the meaning of Section 1445 Closing from the lessors of the Code orWarehouse Lease, the Wine Bar Lease and the Restaurant Lease. 11.11 That no material adverse change in the case Purchased Assets or its future use or operation may have occurred after the Contract Date, unless waived by Buyer pursuant to Section 14 - Material Changes; Survival. 11.12 No investigation, claim, suit, action or governmental proceeding pertaining to this Agreement, or transactions contemplated herein will have been instituted or threatened. 11.13 Conveyance of the affidavit of the Canadian Seller, that none of the Included Purchased Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant Closing, subject only to Section those title exceptions reasonably acceptable to Buyer and the Contracts and Leases. 11.14 The reasonable approval of Exhibit B (Excluded Assets), Exhibit C (Accounts Payable), Schedule 5 (Net Asset Adjustment Example), Schedule 6 (Disclosure Schedules), Schedule 6.7 (Inventory), Schedule 6.8 (Accounts Receivable), Schedule 6.9(d) (Condition of the Retail Sales Tax Act Assets), Schedule 6.12 (OntarioContracts), Schedule 6.13 (Insurance), Schedule 6.14(b) (Benefit Plans), Schedule 6.18(j) (Termination Bonus), Schedule 6.21 (Customers & Suppliers), Schedule 15 (Holdback Security), Exhibit F (SGV Agreement), Exhibit I (Indemnification Agreement), which exhibits and a certificate pursuant schedules will be attached to similar legislation in each other jurisdiction in which any Included Assets this Agreement as soon as they are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxapproved.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, in which case such representations and warranties shall be true deemed to refer to such earlier date referenced in such representation and correct only as of such specified datewarranty), with only such exceptions as would not, individually and Seller shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller No suit, action or other proceeding brought by a third party shall be pending, nor shall any order have performed, satisfied been entered by any court or complied in all material respects with all agreements, obligations and covenants required by Governmental Authority having jurisdiction over the Parties or the subject matter of this Agreement to be performed, satisfied or complied with by Seller by which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or seeks damages in connection with, the Closingpurchase and sale contemplated by this Agreement. (c) Seller Buyer shall have delivered to Buyer a certificate of Seller dated be the Closing Date and signed by an authorized officer of Seller operator under all operating agreements applicable to the effect Assets; provided, however, that each of in the conditions specified above in Sections 2.2(a) and (b) has been satisfiedevent Buyer voluntarily resigns as the operator under any operating agreement applicable to the Assets, then Buyer shall be the operator under all other operating agreements applicable to the Assets. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects, Casualty Defects and Open Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There Seller shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it Closing Settlement Statement defined under Section 2.1(b)10.3. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer shall not be obligated to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of proceed with the Closing of unless and until each of the following conditionsconditions have been fulfilled or otherwise waived in writing by Buyer: (a) The representations and warranties of 12.1 Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each all of the Collateral Agreements to which documents required of Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date 5.1 of this Agreement. 9/12/2013 12:02 PM 12.2 On the Closing Date, there all of the covenants and agreements to be complied with or performed by Seller under this Agreement on or before the Closing shall have been no change, event complied with or development that has had or would reasonably be expected to have a Material Adverse Effectperformed in all material respects. (k) 12.3 The representations and warranties made by Seller in this Agreement shall have delivered to Buyer an affidavit of each of Seller be true and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated complete in all material respects on and as of the Closing Date Date. 12.4 The Real Property and Buildings and Improvements shall be in substantially the same condition and state of repair as existed on the Effective Date, ordinary wear and tear excepted. 12.5 The Title Company is unconditionally prepared and committed to issue the Title Policy insuring that title to the Real Property is vested in Buyer (or its permitted assignee) subject only to the form Permitted Exceptions. If any of the conditions precedent set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) this Sections 12 are not satisfied, deemed satisfied or 1.1445-2(c)(3waived in writing by Buyer at or prior to Closing (subject to any express rights which Seller may have under this Agreement to adjourn Closing), as applicableBuyer shall have the right, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code orat Buyer's sole option (by written notice to Seller) to (i) terminate this Agreement, in which event, the case Deposit then on hand with the Escrow Agent will be returned to Buyer, and neither party shall have any other obligations hereunder other than those which, by their express tennis, survive such termination, or (ii) complete Closing, without a price adjustment, notwithstanding the unsatisfied condition; provided, however, if such failure of the affidavit a condition constitutes a default by Seller hereunder or breach of the Canadian a representation or warranty by Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller then Section 16 shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxapply.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for contemplated hereby is are, unless waived by Buyer, subject to the satisfaction (fulfillment, at or waiver by Buyer) as of before the Closing Closing, of each of the following conditions: (ai) The representations No Legal Requirement of a Governmental Authority shall be in effect which prohibits, restricts or enjoins or otherwise materially adversely affects the consummation of the transactions contemplated by this Agreement. (ii) No Proceeding shall be pending or threatened (A) which seeks to prohibit, restrict, enjoin, nullify, seek material damages with respect to, or otherwise materially adversely affect the consummation of the transactions contemplated by this Agreement or (B) which if adversely determined would materially and warranties adversely affect the value of the Purchased Assets or materially and adversely interfere with the ability of Buyer to manufacture and market the Products under the Trademarks. (iii) Each representation and warranty of Seller made set forth in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at and as of the Closing Date as if though made on such date (and as of the Closing Date, except for such that, representations and warranties made that by their terms speak only as of a specified date, which shall the date hereof or some other specific date need be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller approved by Buyer dated the Closing Date and signed executed by an a duly authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (giv) The waiting period applicable Seller shall have obtained, or to the reasonable satisfaction of Buyer obviated the need to obtain, all Consents and Governmental Authorizations, if any, required to consummate the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)by this Agreement. (hv) The material Included Assets (other than Seller shall have performed and complied with all covenants and agreements required to be performed or complied with by Seller under this Agreement prior to or concurrently with the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective TimeClosing, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each a certificate approved by Buyer dated the Closing Date executed by a duly authorized officer of Seller to such effect. (vi) Buyer shall have received all certificates and any affiliate of Seller transferring Included Assets other documents required to be delivered to Buyer at or before the Closing pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3Agreement duly executed by all necessary persons (other than Buyer), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is hereunder are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions at or before Closing, the occurrence of which may, at the option of Buyer, be waived: (a) The All representations and warranties of Seller made Sellers in Article 3 disregarding all qualifications and exceptions relating this Agreement shall be, to the extent qualified by materiality, Material Adverse Effect or words of similar importtrue, shall be and to the extent not qualified by materiality, true and correct at and as of the date hereof and at in all material respects on and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller , and Sellers shall have delivered to Buyer a certificate to such effect dated as of Seller dated the Closing Date and signed by an authorized officer of Seller Date; provided, however, that Sellers may, not later than five days prior to the effect Closing, deliver to Buyer updated Schedules which may only reflect matters that each arise after the date hereof (and that Sellers could not reasonably have known or anticipated as of the conditions specified above date hereof) and, provided that such Schedules are acceptable to Buyer, acting in Sections 2.2(a) good faith, such Schedules shall supersede and replace the Schedules delivered by Sellers at the signing of this Agreement; (b) There shall not have occurred since December 27, 1998, any event or condition that has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could would reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after taken as a whole, provided that restaurant sales for the Closing.Restaurants for the period from the date hereof through the Closing Date, as compared to the same period in 1998, of less than negative 15% shall not be deemed a material adverse change hereunder; (c) Sellers shall have performed and complied or shall have caused the performance and compliance (i) in all material respects with all covenants and agreements that are unqualified as to materiality and are required by this Agreement on their part to be performed or complied with prior to or on the Closing Date, and (ii) with all covenants and agreements that are qualified as to materiality and are required by this Agreement on Sellers' part to be performed or complied with prior to or on the Closing Date; (d) Sellers shall deliver all of the items required to be delivered by them pursuant to Section 3.2 of this Agreement; (e) There shall not be any Applicable Law or Judgment that makes the purchase The form and sale substance of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited.documents delivered by Sellers pursuant to this Agreement shall be reasonably acceptable to Buyer and Buyer's counsel; (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must Buyer shall have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect.a Phase I environmental report for each Owned Real Property; (g) Buyer shall have obtained, either from Sellers or directly from the issuing authority, all material Permits, licenses, including liquor licenses, and approvals of all governmental and quasi-governmental authorities necessary for the operation of the Business as intended by Buyer; provided, however, that if Buyer is unable to obtain from local municipal or county authorities a liquor license necessary for such operation of any of the Restaurants, the effect on the Closing hereunder shall be as set forth in Section 11.15; (h) There shall be no claims, actions or suits pending or threatened regarding the Assets or the Business that would restrict or prohibit or materially adversely effect Buyer from or in consummating the transactions contemplated herein; (i) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or a notification of early termination of the waiting period shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b).by Buyer; and (j) Since the date Receipt of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form those consents set forth on Schedule 7.3, including a consent from their lender for Chevys and CHI to act as guarantor on any Real Property Lease; provided, however, if, after reasonable efforts by Chevys and CHI, such lender will not provide its consent with respect to the guaranty, Buyer, Chevys and CHI shall waive this condition if Sellers and Parent agree in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address writing that Chevys and Federal employer identification number and stating under the penalties of perjury that such Person CHI is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide required to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which guaranty any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxReal Property Lease.

Buyer’s Conditions to Closing. The obligation Closing of the transaction contemplated by this Agreement and all the obligations of Buyer to consummate the transactions provided for hereby is under this Agreement are subject to fulfillment, on or before the satisfaction date that is fifteen calendar days after the Contingency Termination Date (or waiver by Buyer) as of the Closing of each defined below), of the following conditionsconditions precedent: (a) The representations Buyer shall have determined in its sole discretion that the physical status or condition of the Property and warranties Improvements, including without limitation, environmental, geotechnical (soil), wetland, floodplain, drainage and availability of Seller made in Article 3 disregarding all qualifications adequate access and exceptions relating to materiality, Material Adverse Effect or words of similar importutilities, shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectsatisfactory to Buyer. (b) Seller Buyer shall have performed, satisfied or complied in approved of all material respects with all agreements, obligations and covenants required zoning related matters affecting the Property deemed necessary by this Agreement Buyer to be performed, satisfied or complied with by Seller by the time permit Buyer’s intended use of the ClosingProperty. (c) Seller shall (or its affiliate) and Buyer have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller agreed to the effect that each terms of a leaseback arrangement for net rent in the amount of $16.50 psf, escalating at 3% per annum, an initial term of 60 months, and $35.00 psf in tenant improvement allowances (the “Post-Closing Lease”). The Parties hereby acknowledge the delivery of the conditions specified above Post-Closing Lease is an integral condition to Closing and the failure to do so on or before Closing shall result in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate terminate this Agreement and the Businessright to the return of the Xxxxxxx Money in full. The foregoing conditions precedent described in this Section 7 are for the sole benefit of the Buyer. If Buyer determines, in its sole discretion, that the Property is not suitable or acceptable to Buyer or that the foregoing conditions have not been fulfilled or satisfied to the satisfaction of Buyer, then Buyer shall have the right to terminate this Agreement by delivering written notice of its election to terminate to Seller at any time prior to 5:00 p.m. Central Time within ninety (90) calendar days of the Effective Date (the “Contingency Termination Date”) or by the time period specified above, as currently conducted (but excluding any such Transferred Permits or filings the absence applicable. If Buyer delivers written notice of which can be cured solely by the payment of money), must have been obtained or made termination to Seller as set forth thereinin the preceding sentence, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) then this Agreement shall be free deemed to be cancelled and clear terminated, without further notice or action required of all Liens other than Permitted Liens as of either party, the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities Xxxxxxx Money shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered returned to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a partyBuyer, and Buyer and Seller shall have received the other agreementsthereafter be released from any liability or obligation hereunder; provided, instruments and documents to be delivered to it however, that Buyer’s indemnification obligations under Section 2.1(b). (j) Since the date 4.3 of this Agreement shall survive such termination. Except as otherwise provided in this Agreement, there if Buyer does not deliver written notice to terminate to Seller as set forth herein, then Buyer shall have been no change, event or development that has had or would reasonably be expected further right to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets terminate this Agreement pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax7.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions:: 42 (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at in all material respects (without regard to materiality or similar qualifiers) as if such representations and as of the date hereof and warranties were made at and as of the Closing Date as if made on such date (except for to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct only as of such the specified date), with only such exceptions as would not, individually and Seller shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller shall have performedNo injunction, satisfied order or complied in all material respects with all agreements, obligations and covenants required award enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement to be performed, satisfied or complied with shall have been issued by Seller by the time of the Closinga Governmental Authority and remain in force. (c) Seller All material consents and approvals required of Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transactions contemplated by this Agreement, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after the Closing (including, for purposes of clarity, Customary Consents), shall have delivered to Buyer a certificate of Seller dated been received or waived in writing, or the Closing Date and signed by an authorized officer of Seller to the effect that each necessary waiting period shall have expired, or early termination of the conditions specified above in Sections 2.2(a) and (b) has waiting period shall have been satisfiedgranted. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to finally resolved Title Defects and alleged Environmental Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the Mutual Termination Threshold and Seller has not exercised its termination right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingunder Section 7.7(b). (e) There Seller shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely The transactions contemplated by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable Samson PSA with respect to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law Assets shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)closed. (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation Notwithstanding anything in this Agreement to the contrary, the obligations of Buyer to consummate complete the transactions provided for hereby is Closing are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following additional conditions, or the written waiver of same by Buyer, on or prior to Closing: (a1) The All of the terms and conditions contained in this Agreement to be complied with and performed by Seller at or before Closing shall have been complied with and performed in all material respects, and the representations and warranties of made by Seller made in Article 3 disregarding this Agreement shall continue to be correct in all qualifications and exceptions relating to materialitymaterial respects, Material Adverse Effect or words of similar import, shall be true and correct at and as of Closing, with the date hereof same force and effect as though such representations and warranties had been made at and as of Closing. (2) There shall not have been after the Closing Date as if made on such date Effective Date: (except for such representations i) any Material Adverse Change in Seller’s Retail Business or any of the Assets; or (ii) any sale, assignment or transfer by Seller of any of the Assets other than in the normal, regular and warranties made as customary course of a specified datebusiness. For purposes of this Agreement, wherever it is used, “Material Adverse Change” or “Material Adverse Effect” shall mean any event, occurrence, development or state of circumstances or facts which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied aggregate has had or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could is reasonably be expected to result in or have a material adverse effect on upon the right financial condition, results of operation, business, properties, prospects, condition or ability operations of Buyer or its Affiliates to own, operate, possess or transfer a material portion of the Included Assets or the Business after the Closing. (e) There shall not be Retail Business; provided, however, that in determining whether there has been a material adverse change or effect, any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable adverse effect attributable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) following shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time.disregarded: (i) Seller and its applicable Affiliates general economic business or financial market conditions, including, without limitation, conditions affecting generally the industries served by the Retail Business; (ii) the announcement of this Agreement; (iii) the breach by Buyer of this Agreement; or (iv) any change in legal requirements or generally accepted accounting principles or interpretations thereof that apply to the Retail Business. (3) Except as disclosed on Schedule 8(i), no action or proceeding before a court or any other governmental agency or body shall have executed and delivered been instituted or threatened to Buyer each restrain or prohibit any of the Collateral Agreements to which Seller and its applicable Affiliates are a partytransactions contemplated in this Agreement, and no governmental agency or body shall have taken any action or made any request of any party to this Agreement as a result of which Buyer reasonably and in good faith determines that such action or request would be likely to prevent operation of the Retail Business substantially as presently conducted by Seller or which would be likely to Materially Adversely Affect the marketability or value of the Assets. (4) Buyer shall have received the other agreements, instruments obtained (i) state and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of county UCC searches regarding Seller and the Assets showing no liens, encumbrances, easements or restrictions against any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) Assets other than those which Seller agrees to remove on or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.before Closing; and

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The representations Buyer shall, acting reasonably, be satisfied the Buyer Claims are valid, complete, uncontested and warranties of Seller made in Article 3 disregarding non-conflicting mining claims representing the exclusive right to all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of locatable placer minerals within the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse EffectProperties. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations executed and covenants required by this Agreement delivered counterpart signatures (where applicable) to be performed, satisfied or complied with by Seller by the time of the ClosingClosing Documents. (c) All representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects, in each case as if such representations and warranties were made at and as of the Closing Date, and Seller shall have delivered performed and satisfied in all material respects all covenants and agreements required to Buyer a certificate of Seller dated the Closing Date be performed and signed satisfied by an authorized officer of Seller it under this Agreement at or prior to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedClosing. (d) No Proceeding suit, action or other proceeding brought by a third party shall be pending, nor shall any order have been entered by any court or Governmental Authority shall have been instituted having jurisdiction over the Parties or the subject matter of this Agreement which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to enjoin restrain or prohibit prohibit, or seeks damages in connection with, the transactions Transaction contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingthis Agreement. (e) There No Claim shall not be any Applicable Law threatened, asserted or Judgment that makes pending against the purchase and sale of Subject Claims, the Business Buyer Claims or the Included Assets contemplated hereby illegal or otherwise prohibitedProperties by any third party. (f) Each The Seller shall have received the acceptance of the Transferred Permits or filings, TSXV to complete the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effecttransactions contemplated hereby. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law Seller shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered deliver to Buyer each of the Collateral Agreements a certificate in a form reasonably satisfactory to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this AgreementBuyer, dated as of the Closing Date and substantially executed by a duly authorized officer, partner, attorney-in­fact or owner, as appropriate, to the effect that (a) the Seller has all requisite corporate, partnership or other power and authority to effect the Transaction on the terms described in the form this Agreement and to perform its other obligations hereunder, (b) that all corporate, partnership and other prerequisites of any nature whatsoever have been fulfilled, and (c) certifying that all conditions to Closing as set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3Sections 9.2(c), as applicable(d), setting forth such Person’s name, address (e) and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest;(f) have been met. (lh) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposesshall, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or acting reasonably, be satisfied that Seller has entered into satisfactory arrangements for payment filed to withdraw its application(s) with the United States Bureau of such sales taxLand Management and other Governmental Authorities (as applicable) as relate to any potash lease(s) over the Properties.

Buyer’s Conditions to Closing. The obligation of Buyer under this Agreement to consummate the transactions provided for hereby Closing contemplated herein is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions, provided that each condition may be waived in whole or in part in writing at the option of Buyer: (a) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect On or words of similar import, shall be true and correct at and as of the date hereof and at and as of before the Closing Date Date, all title companies (or their successors) which had previously issued a title policy for any individual property within the Property naming Seller as if made on the "owner" thereunder have issued an endorsement to each such date (except for policy acknowledging that an additional insured party under such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually title policy or in the aggregate, have a Material Adverse Effecttitle policies is Cabot. (b) Seller shall have performedOn or before the Closing Date, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement Cabot is named as an insured on the Environmental Insurance related to be performed, satisfied or complied with by Seller by the time of the ClosingProperty. (c) Seller shall have delivered to Buyer a certificate of Seller dated On or before the Closing Date Date, TIAA Appl. #VR-0023, Mortgage Number 0004848-53-00 (the "Pool II Loan") from Teachers Insurance and signed by an authorized officer Annuity Association of Seller to America (the effect that each of the conditions specified above in Sections 2.2(a) and (b"Lender") has been satisfiedmodified such that (i) the Pool II Loan encumbers only properties included in the definition of "Property" hereunder, (ii) the Pool II Loan does not encumber any properties to be retained directly or indirectly by Seller or any of Seller's Affiliates, (iii) Seller has assigned its rights and obligations under the Pool II Loan to Cabot pursuant to an Assignment and Assumption Agreement acceptable to Buyer, in Buyer's sole discretion, and (iv) any modifications to the documents currently evidencing or securing the Pool II Loan have been approved by Buyer, in its reasonable discretion; provided, however, that Buyer hereby agrees to assume liability for any environmental indemnities or non-recourse carve-outs as part of such modification if so requested by Lender. (d) No Proceeding If required under Section 7.2.1(c), the indemnity for liabilities under the Pool II Loan with respect to which Seller and Seller's Affiliates, if any, has not been released by any Governmental Authority Lender shall have been instituted that seeks be reasonably acceptable to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingin form and in substance. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale As of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filingsClosing Date, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and Pool II Loan, the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person Property is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred encumbered by the Canadian liens or encumbrances which secure financing obtained or money borrowed by either Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxCabot.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is hereunder are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and conditions as of the date hereof and at and as time of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.Closing: (b) a. Seller shall have performed, satisfied or complied in all material respects with all agreementsof the terms, obligations covenants and covenants required by conditions hereof to be complied with on the part of Seller. b. Subject to the second to last paragraph of Section 6.1 of this Agreement, all representations and warranties of Seller in Section 6.1 of this Agreement to shall be performed, satisfied or complied with by Seller by true and correct at the time of Closing as if made at such time. Seller shall be entitled to downdate any of its representations and warranties to reflect matters revealed in any of the ClosingTenant Estoppels; provided, however, that the condition set forth in this Section shall not be deemed satisfied unless all representations and warranties of Seller in Section 6.1 of this Agreement shall be true and correct at the time of Closing as if made at such time (regardless of any downdate). c. Buyer shall have received an ALTA owner's policy of title insurance or a marked up title commitment issued by the Title Company for the Acquired Assets, in the amount of the Purchase Price allocation and containing such endorsements as may be required by Buyer or Buyer's lender (c) to the extent available in New Jersey), insuring good and marketable fee title to the Acquired Assets subject only to the Permitted Encumbrances (the "TITLE POLICY"). The Title Policy shall provide full coverage against mechanics and materialmen's liens arising out of the construction, repair or alteration of any of the Improvements, including any tenant improvements therein. Seller shall execute and deliver to the Title Company an owner's affidavit sufficient to support the issuance of the Title Policy. Notwithstanding the foregoing, in the event that Buyer is unsuccessful in obtaining such ALTA owner's policy of title insurance or a marked up title commitment as described above, Seller shall have delivered the option to Buyer obtain the aforesaid ALTA owner's policy of title insurance or marked up title commitment on Buyer's behalf and at Buyer's sole cost and expense in order to satisfy this condition. Any title insurance policy obtained by Seller on Buyer's behalf shall be issued by a certificate nationally recognized title insurance company qualified to issue title insurance policies in the State of Seller dated New Jersey and be obtained at rates promulgated by the State of New Jersey, any such title insurance policy shall not be at any additional liability or increased risk to Buyer. d. The physical condition of the Property shall be substantially the same on the day of Closing Date as on the Effective Date, reasonable wear and signed tear and loss by an authorized officer of Seller casualty excepted (subject to the effect that each provisions of Section 10.1 below), and, as of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by day of Closing, there shall be no litigation or administrative agency or other governmental proceeding of any Governmental Authority shall have been instituted that seeks to enjoin kind whatsoever, pending or prohibit threatened, which after Closing would materially adversely affect the transactions contemplated hereby value of the Acquired Assets or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as Acquired Assets in the manner in which it is currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effectbeing operated. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and e. Buyer shall have received the other agreements, instruments and documents to be delivered to it Tenant Estoppels required under Section 2.1(b). (j) Since the date 3.7 of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) f. Seller shall have delivered completed all work required under Section 3.8 or will escrow 110% of mutually agreed upon funds to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets complete such work pursuant to a mutually acceptable escrow agreement with Escrow Agent or another third party escrow agent approved by Buyer. If Buyer's Conditions listed above or any of the other express conditions set forth in this Agreement to Buyer's obligation to close have not been satisfied to the sole satisfaction of Buyer or waived in writing by Buyer, and provided the Closing does not occur due to Buyer's default under this Agreement, dated as Buyer shall be entitled to terminate this Agreement and receive a refund of the Closing Date Deposit and substantially in the form set forth in Treasury Regulation all interest accrued thereon and to pursue its remedies under Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties 11.3 of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxthis Agreement.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct only as of such the specified date), with only such exceptions as would not, individually and Seller shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller shall have performedOn the Closing Date, satisfied no injunction, order or complied in all material respects with all agreements, obligations and covenants required award enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement to be performed, satisfied or complied with shall have been issued by Seller by the time of the Closinga Governmental Authority and remain in force. (c) Seller All material consents and approvals required of Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after Closing, shall have delivered to Buyer a certificate of Seller dated been received or waived in writing, or the Closing Date and signed by an authorized officer of Seller to the effect that each necessary waiting period shall have expired, or early termination of the conditions specified above in Sections 2.2(a) and (b) has waiting period shall have been satisfiedgranted. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to finally resolved Title Defects and alleged Environmental Defects, Open Matters, Casualty Defects, and removed or excluded Assets due to exercised Preferential Purchase Rights or un-obtained Required Consents shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There Seller shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it Closing Settlement Statement defined under Section 2.1(b)10.3. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The Buyer's obligation of Buyer to consummate close the transactions provided for hereby is transaction contemplated herein shall be subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions precedent: (ai) The representations and warranties of Seller made and Shareholder contained in Article 3 disregarding all qualifications this Agreement and exceptions relating to materiality, Material Adverse Effect or words of similar import, the Auxiliary Agreement shall be true and correct at and as of the date hereof and at and as of in all material respects on the Closing Date as if made on Date, except that any such date (except for such representations representation and warranties warranty made as of a specified date, which date (other than the date of this Agreement) shall be have been true and correct only in all material respects on and as of such specified date); (ii) Seller and Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants contained in this Agreement and the Auxiliary Agreement, with only such exceptions as would not, individually or in any documents delivered in connection herewith, that are required to be performed and complied with by it or him, as applicable, on or before the aggregate, have a Material Adverse Effect.Closing Date; (biii) Buyer shall have received a certificate from Seller and Shareholder, executed on behalf of Seller by its duly authorized officer, and by Shareholder, individually, certifying that the conditions specified in Sections 3.3(a)(i) and 3.3(a)(ii) have been satisfied (the "Seller's Closing Certificate"); (iv) No suits, actions or other proceedings shall have been filed by any party seeking to prevent the Closing or otherwise restrain the transaction contemplated herein or seeking damages in connection therewith; (v) Buyer shall, in its reasonable discretion, be satisfied with the results of Buyer's due diligence with respect to the Assets; (vi) Seller shall have performed, satisfied or complied in obtained and delivered to Buyer all material respects with all agreements, obligations and covenants written consents of the other party to each Contract which Buyer has indicated consent is required by to be obtained prior to closing; (vii) Buyer shall have received approval of this Agreement to be performed, satisfied or complied with by Seller its Board of Directors; (viii) Buyer shall have received approval of this Agreement by the time Board of the Closing.Directors of WCA; (cix) Buyer shall have received approval of this Agreement by Xxxxx Fargo Bank, N.A., as Agent for Buyer's lenders; (x) Seller shall have delivered provided evidence satisfactory to Buyer a certificate that, as of Seller dated the Closing Date Date, Seller has all permits, licenses and signed by an authorized officer governmental approvals of Seller to whatever kind and nature which have been necessary for the effect that each operation of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority Assets shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase granted and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be are in full force and effect.; (gxi) There shall have occurred no material damage, destruction, loss, or material adverse change in the condition of the Assets (whether or not covered by insurance) between the execution date of this Agreement and the Closing; (xii) The waiting period applicable to Closing of the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law Auxiliary Agreement shall have expired closed or early termination be closing contemporaneously with the Closing of this Agreement; and (xiii) The employment agreements referenced in Section 3.4(k) shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxindividuals named therein.

Buyer’s Conditions to Closing. The obligation of the Buyer to consummate the transactions provided for hereby to be performed by the Buyer according to Clause 8.1.5 (Closing Actions) is subject to the satisfaction (or waiver by Buyer) as of the following conditions unless waived by the Buyer at or prior to the Closing of Date; 7.2.1 each of the following conditions:Sellers shall have materially performed and complied with their covenants under Clauses 6.1.1 through 6.1.5 until the Closing Date; 7.2.2 the Sellers shall have duly passed the Company Resolution, the Mobiltel Finance Resolution and the Alabin Resolution, and deposited all of the executed versions (aand any copies) The representations thereof, with the SPA Escrow Agent; 7.2.3 there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing the consummation by the Sellers of any of the transactions contemplated by this Agreement; 7.2.4 each of the Sellers shall have delivered to the Buyer a final, executed original of the Sellers Legal Opinion from its respective counsel; 7.2.5 the Sellers shall have delivered to the Buyer written evidence in the relevant form of Exhibit 7.2.5 (Resignation Letters) that (i) the persons that have been so determined and warranties notified to the Sellers by the Buyer shall have resigned as members of Seller made in Article 3 disregarding all qualifications the Management Board and exceptions relating to materiality, Material Adverse Effect or words the management board of similar import, shall be true and correct at and Alabin as of and subject to the date hereof Closing, and at (ii) the persons including any member of the Supervisory Board that have been so determined and notified to the Sellers by the Buyer shall have resigned as members of the Supervisory Board as of and subject to the Closing; 7.2.6 updates, if any, of the Disclosure Letter as of the Closing Date as if made that relate to matters arising or events occurring on or after the Disclosure Date do not disclose any circumstances which, in the absence of such date disclosure, would in the aggregate result in a reduction of the Purchase Price pursuant to Clause 10 (except for such Indemnification) of more than Twenty Five Million Euro (€25,000,000); 7.2.7 none of the Sellers has breached or would in the event of the Closing breach any of the Sellers representations and warranties made set out in Clause 3 (Representations and Warranties of Sellers Re: Transaction) and Clauses 5.1 (Organisation, Qualification and Corporate Power) through 5.26 (Information Disclosed by Stripe) unless such breach or breaches, as the case may be, results or would result in a reduction of a specified date, which shall be true the Purchase Price of not more than One Hundred and correct only as of such specified date), with only such exceptions as would not, individually or Eighty Million Euro (€180,000,000) in the aggregate, have a ; 7.2.8 no Material Adverse Effect.Change has occurred since the Disclosure Date; (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by 7.2.9 no Intentional Material Adverse Change has occurred since the time Disclosure Date; 7.2.10 no OCB Material Adverse Change has occurred since the Disclosure Date; 7.2.11 each of the Closing. (c) Seller M-Tel Representatives shall have delivered to the Buyer non-compete undertakings, substantially in the form as set forth in Exhibit 7.2.11 (Non-Compete Undertaking); 7.2.12 the Sellers shall have delivered to the Buyer written evidence that the persons that have been so determined and notified to the Sellers by the Buyer shall have resigned as members of the management board of Mobiltel Finance B.V. with effect on Closing; 7.2.13 the Sellers shall have delivered to the Buyer a certificate of Seller dated reasonably satisfactory to the Closing Date and signed by an authorized officer of Seller Buyer to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall Clauses 7.2.1, 7.2.3, 7.2.7 through 7.2.10 are deemed to have been instituted that seeks to enjoin or prohibit satisfied for the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability purposes of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing., substantially in the form attached hereto as Exhibit 7.2.13 (Form of Sellers’ Certificate); and (e) There shall not be any Applicable Law or Judgment that makes 7.2.14 the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller Sellers shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets the SPA Escrow Agent those documents required to be delivered by the Sellers to the SPA Escrow Agent pursuant to this Agreement, dated as Clause 3.4 (Document Escrow) of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxSPA Escrow Agreement.

Buyer’s Conditions to Closing. The obligation of Buyer to purchase and pay for the Assets (other than the Toledo Plant Assets) and the Other Assets at the Closing and assume the Assumed Liabilities at the Closing, and to consummate the other transactions provided for hereby contemplated hereby, is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions: (a) (i) each of the following conditions: (a) The representations and warranties of Seller made Sellers contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall failures to be true and correct only as of such specified date), with only such exceptions as would not(without giving effect to any Materiality Qualifiers) that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Effect or prohibit or materially impair the ability of each Seller to consummate the transactions hereunder, in each case on and as of the Closing Date, as though made on and as of the Closing Date (bunless and to the extent any such representation or warranty speaks specifically as of an earlier date, in which case, as of such earlier date); (ii) each Seller shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by such Seller by the time of the Closing. ; and (ciii) Seller Sellers shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an a duly authorized officer of each Seller to confirming the effect that each of the conditions specified above in Sections 2.2(a) and foregoing; (b) has been satisfied. (d) No Proceeding by no injunction or order, writ, decree or judgment of any Governmental Authority Entity of competent jurisdiction shall have been instituted that seeks to enjoin or prohibit be in effect as of the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment Closing that makes illegal, restrains or prohibits the purchase and sale of the Business Assets or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each consummation of the Transferred Permits other material transactions contemplated by this Agreement; (c) each Seller or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Businessits Affiliates, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money)applicable, must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a partyAgreements, as applicable, and Buyer shall have received the all other agreements, documents and instruments and documents required to be delivered by such Seller to it under Section 2.1(b). Buyer hereunder; (jd) Since since the date of this Agreement, there shall not have been no changeany condition, circumstance, event or development that occurrence occurring or existing that, individually or in the aggregate, has had resulted or would reasonably be expected to result in a Material Adverse Effect; (e) the provisions of Section 7.9 shall have been implemented in such a manner that Buyer shall have the ability to continue to operate the Business on terms that are, taken as a whole, not materially less advantageous to Buyer than the terms on which the Business was conducted as of the date of the Original Asset Purchase Agreement; (f) the proceeds of the financing contemplated by the Financing Commitment, or such lesser amount as may be necessary to consummate the transactions contemplated by this Agreement on the terms set forth herein and to provide Buyer with at least $75,000,000 of working capital and other post-Closing financing, shall be available to Buyer; -71- <Page> (g) other than the filing pursuant to the HSR Act, Buyer shall have received all consents, licenses, authorizations, certificates and permits required by Governmental Entities to consummate the transactions contemplated by this Agreement, except for failures to receive such consents, licenses, authorizations, certificates and permits that, individually or in the aggregate, and taking into account the availability of the arrangements contemplated by the Transition Services Agreement, the Co-Pack Agreement and the other Collateral Agreements, would not reasonably be expected to have a Material Adverse Effect.Effect or prohibit or materially impair the ability of Buyer to consummate the transactions hereunder; (h) the Acquisition shall have been consummated; (i) General Xxxxx, Diageo and the Trustee shall have executed and delivered to Buyer the Escrow Agreement; (j) Buyer shall have received consents from, or modifications to or new agreements or arrangements with, the Persons identified in SCHEDULE 8.2(j) in such a manner that Buyer shall have the ability to continue to operate the Business on terms that are, taken as a whole, not materially less advantageous to Buyer than the terms on which the Business was conducted as of the date of the Original Asset Purchase Agreement, which modifications or new agreements, to the extent SCHEDULE 8.2 (j) contemplates specific terms, shall be on substantially the terms contemplated by such Schedule; (k) Seller the Diageo Debt Guarantee Agreement shall have been executed by all necessary parties thereto and delivered to Buyer an affidavit of each of Seller Buyer; and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain the waiting period (and provide any extension thereof) under the HSR Act applicable to Buyer at the Closing a certificate pursuant to Section 6 purchase and sale of the Retail Sales Tax Assets, the Other Assets and the Toledo Plant Assets and the other transactions contemplated by this Agreement and the Collateral Agreements, if not exempted under the HSR Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposesapplicable regulations, each of which indicates that all sales tax collectible or payable by Seller under such legislation shall have been paid up to terminated or shall have expired; and all other material consents of, or registrations, declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity legally required for the Closing Date consummation of the purchase and sale of the Assets, the Other Assets and the Toledo Plant Assets and the other transactions contemplated by this Agreement and the Collateral Agreements shall have been obtained or that Seller has entered into satisfactory arrangements for payment of such sales taxfiled or shall have occurred.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is and Eastern under this Agreement are subject to the satisfaction (at or waiver by Buyer) as of prior to the Closing of each of the following conditions, but compliance with any or all of any such conditions may be waived, in writing, by Buyer and Eastern: (a) The representations and warranties of Seller each of the Sellers contained in this Agreement shall have been true and correct when made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof Closing Date, with the same force and at and effect as if made as of the Closing Date as if made on such date (except for other than such representations and warranties as are made as of a specified date, another date which shall be true and correct only as of such specified date), with only such exceptions except where the failure to be so true and correct (without giving effect to any limitations or qualifications as to “materiality” (including the word “material” or “Material Adverse Effect” set forth therein)) would not, individually or in the aggregate, have have, or reasonably be expected to have, a Material Adverse Effect.; (b) Seller Each of the Sellers shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations the covenants and covenants agreements contained in this Agreement and satisfied all the conditions required by this Agreement to be performed, satisfied performed or complied with or satisfied by Seller by it or them at or prior to the time of the Closing.Closing Date; (c) Seller The waiting period under the HSR Act shall have expired or been terminated and, on the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated by this Agreement and no action, suit or proceeding shall have been instituted by any Person or entity, or threatened by any Governmental Body, before a court or Governmental Body, to restrain or prevent the carrying out of the transactions contemplated by this Agreement; (d) Between the date hereof and the Closing Date, there shall not have been any Material Adverse Effect; (e) The FMRX Stockholder Approval shall have been obtained; (f) The Sellers shall have delivered to Buyer a certificate and Eastern documents, in form and substance reasonably satisfactory to Buyer, demonstrating the release of Seller dated all Encumbrances (except Permitted Encumbrances) on the Closing Date and signed by an authorized officer of Seller to the effect that each Purchased Assets, including customary pay-off letters or similar acknowledgements of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by discharge of any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale indebtedness for borrowed money of the Business or Sellers setting forth the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated amount owed as of the Closing Date and substantially indicating that upon payment of such amount, such indebtedness will be discharged in full and all related Encumbrances (except Permitted Encumbrances) on the form Purchased Assets will be released and removed; (g) The Sellers shall have delivered all documents required to be delivered under Section 4.3; (h) Buyer and Exxxxxx Xxxxxxxxxx shall have entered into a definitive Consulting and Non-Competition Agreement on the terms set forth in Treasury Regulation Section 1.1445-2(b)(2)(ivthe term sheet attached as Exhibit E and such other customary terms mutually agreed upon by Buyer and Exxxxxx Xxxxxxxxxx; and (i) Buyer and Eastern shall have obtained all pharmacy licenses and pharmacy permits required to operate the Business (either by transfer of Seller’s Transferable Permits to the extent permitted by law or 1.1445-2(c)(3)its receipt of new licenses, as applicablepermits or numbers, setting forth such Person’s nameprovided, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Sellerhowever, that none of prior to Closing, Buyer and Eastern will file their respective applications for the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxrequired licenses).

Buyer’s Conditions to Closing. The Buyer's obligation of Buyer to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which Property on the Closing Date would materially impair Buyer’s ability shall be subject to operate the Businesssatisfaction or performance of the following terms and conditions, as currently conducted (but excluding any such Transferred Permits one or filings the absence more of which can may be cured solely waived in writing by Buyer, in whole or in part, on or as of the Closing Date: (A) Seller shall have, in all material respects, kept, observed, performed, satisfied and complied with all material terms, covenants, conditions, agreements, requirements, restrictions and provisions of this Agreement to be kept, observed, performed, satisfied and complied with prior to the Closing. (B) The BPD Tenant shall have accepted the Improvements pursuant to Sections 3.23 through 3.25 of the Solicitation of Offers attached to and made a part of the BPD Lease and all other relevant provisions of the BPD Lease, thereby acknowledging its obligation to commence the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby rent under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 BPD Lease (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive date of such acceptance is herein referred to as the requirement of an advance ruling certificate or “no-action” letter"PHASE 1 SUBSTANTIAL COMPLETION DATE"). (hC) The material Included Assets Plans and Specifications shall not have been modified or revised, except for Permitted Modifications and Changes, without Buyer's consent or deemed consent, as set forth in SECTION 17. (other than D) There shall have been delivered to Buyer, at or prior to the Transferred Facilities and Closing Date, a Tenant Statement of Lease by the Adjacent Leased Warehouse Facilities) shall be free and clear BPD Tenant which does not set forth any fact or circumstance which would permit the BPD Tenant to withhold or set off against rent payable under the BPD Lease with respect to the Improvements. If any of all Liens other than Permitted Liens the foregoing conditions have not been satisfied or performed or waived in writing by Buyer on or as of the Effective TimeClosing Date, and Buyer shall have the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. right, at Buyer's option, either: (i) to terminate this Agreement by giving written notice to Seller on or before the Closing Date, in which event all rights and obligations of Seller and its applicable Affiliates Buyer under this Agreement shall have executed expire and delivered this Agreement shall become null and void; or (ii) if such failure of condition constitutes a failure by Seller to Buyer each perform any of the Collateral Agreements to which Seller and its applicable Affiliates are a partyterms, and Buyer shall have received the other covenants, conditions, agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date requirements, restrictions or provisions of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have otherwise constitutes a Material Adverse Effect. (k) default by Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to under this Agreement, dated to exercise such rights and remedies as may be provided for in SECTION 13 of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxthis Agreement.

Buyer’s Conditions to Closing. The obligation of Buyer to consummate purchase and pay for the transactions provided for hereby is Assets and to assume the specified liabilities and obligations set forth herein shall be subject to and conditioned upon, at Buyer's option, the satisfaction (or waiver by Buyer) as of at the Closing of each of the following conditions: (a) 6.1.1 The holders of shares of the issued and outstanding capital stock of VSI and Seller shall have duly adopted and approved this Agreement and all transactions contemplated hereby in accordance with the requirements of Delaware law and Ohio law, respectively, and the Articles or Certificate of Incorporation and Bylaws, as amended to the date of such adoption and approval, of each of VSI and Seller. 6.1.2 All representations and warranties of each of VSI and Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, contained herein shall be true and correct at and as of the date hereof and in all material respects at and as of the Closing Date as if made on such date (except for such provided however that in respect of the warranties and representations contained in Section 2.24 hereof Section 6.1.16 shall apply) and warranties made as each of a specified date, which shall be true VSI and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied performed all agreements and covenants in all material respects with and satisfied all agreements, obligations and covenants required by this Agreement conditions on its part to be performed, performed or satisfied or complied with by Seller by the time Closing Date pursuant to the terms hereof, and Buyer shall have received a certificate of each of VSI and Seller, signed by its President and dated the Closing Date, to both such effects. 6.1.3 As of the Closing, there shall have been no material change since the date of the most recent Financial Statements in VSI or Seller, and neither VSI nor Seller shall have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of their respective assets, properties or business, and Buyer shall have received a certificate of each of VSI and Seller, signed by its principal financial officer and dated the Closing Date, to such effect. (c) 6.1.4 Seller and VSI shall have executed and delivered the Receivables Guaranty. 6.1.5 VSI shall have delivered to Buyer a certificate Certificate of the Secretary of State (or other authorized public official) of VSI's and Seller's respective jurisdiction of incorporation (and each other jurisdiction listed in Schedule 2.5 hereof) certifying as of a date reasonably close to the Closing Date that each of VSI and Seller has filed all required reports, paid all required fees and taxes, and is, as of such date, in good standing and authorized to transact business as a domestic or foreign corporation, as the case may be. 6.1.6 Seller and VSI shall have executed and delivered the Escrow Agreement. 6.1.7 The Escrow Agent shall have acknowledged receipt of the Escrow Fund and accepted the same subject to the terms and conditions of the Escrow Agreement. 6.1.8 Buyer shall have received from Arnall Golden & Xxxxxxx, LLP, counsel for VSI and Seller, an opinion, dated the Closing Date Date, in the form attached hereto as Exhibit "D". 6.1.9 Each of VSI and signed by an authorized officer Seller shall have obtained all authorizations, consents, waivers and approvals as may be required in connection with the assignment of those contracts, agreements, licenses, leases, sales orders, purchase orders and other commitments to be assigned to Buyer pursuant hereto. 6.1.10 Seller and VSI shall have executed and delivered the Xxxx of Sale, Assignment and Assumption Agreement. 6.1.11 Each of Seller and VSI shall have delivered to Buyer a certificate, dated the Closing Date, of each of VSI's and Seller's corporate Secretary certifying: (i) Resolutions of the Board, VSI's stockholders, Seller's board of directors and Seller's sole stockholder approving and adopting this Agreement and all transactions contemplated hereby and authorizing execution of this Agreement and the execution, performance and delivery of all agreements, documents and transactions contemplated hereby; and (ii) The incumbency of its officers executing this Agreement and all agreements and documents contemplated hereby. 6.1.12 The approval and all consents from any Third Party or Governmental Body required to consummate the transactions contemplated hereby shall have been obtained and the waiting period and any statutory extension thereof applicable to the effect that each consummation of the conditions specified above in Sections 2.2(a) and (b) has transactions contemplated by this Agreement under the HSR Act shall have expired or been satisfiedterminated. (d) 6.1.13 No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit threatened which questions the validity or legality of the transactions contemplated hereby or by any governmental consent, approval or authorization necessary for the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale consummation of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each transactions of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under by this Agreement. 6.1.14 As of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) Closing, there shall be no effective injunction, writ, preliminary restraining order or any similar foreign Applicable Law shall have expired order of any nature issued by a court of competent jurisdiction directing that the transactions provided for herein or early termination shall have been granted and any other consentof them not be consummated as so provided or imposing any conditions on the consummation of the transactions contemplated hereby, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)which is unduly burdensome on Buyer. (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and 6.1.15 Buyer shall have received the other agreementsfrom each of LOR, instruments Inc., Xxxxxxx Investment Fund and documents Xxxxxxx Holding Company, Inc., an executed agreement whereby each of them, on their own behalf and on behalf of their respective affiliates, agrees to be delivered bound by certain restrictive covenants substantially similar to it under those imposed on Seller and VSI pursuant to Section 2.1(b). (j) Since the date 5.2 of this Agreement; provided, there however, that no such provision shall prohibit an investment in any publicly-traded entity that does not require the filing of a Schedule 13D nor Schedule 13G under the Exchange Act. 6.1.16 Buyer shall have been reasonably concluded, following the Environmental Due Diligence Review, that there are no changematerial breaches in the warranties in Section 2.24; provided, event or development however, that has had or would reasonably such conclusion shall not preclude the remedies of Buyer provided for herein. For purposes of this Section 6.1.16 only, "material breaches" shall be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreementdefined as those matters, dated as which in the opinion of the Closing Date and substantially environmental consultant retained as provided in Section 5.5.2, are reasonably likely to cost in the form set forth aggregate in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under excess of $1,000,000 to remedy (excluding the penalties cost of perjury addressing any environmental issues on Facilities that such Person is not a “foreign person” within Buyer elects to exclude from the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate purchase pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax5.5.

Buyer’s Conditions to Closing. The obligation of Buyer to consummate purchase and pay for the transactions provided for hereby is Assets and to assume the specified liabilities and obligations set forth herein shall be subject to and conditioned upon, at Buyer's option, the satisfaction (or waiver by Buyer) as of at the Closing of each of the following conditions: (a) 6.1.1 The holders of shares of the issued and outstanding capital stock of Seller shall have duly adopted and approved this Agreement and all transactions contemplated hereby in accordance with the requirements of Delaware law and the a-72684.2 43 Certificate of Incorporation and Bylaws, as amended to the date of such adoption and approval, of Seller. 6.1.2 All representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, contained herein shall be true and correct at and as of the date hereof and in all material respects at and as of the Closing Date as if made on such date (except for such provided however that in respect of the warranties and representations contained in Section 2.24 hereof Section 6.1.16 shall apply) and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied performed all agreements and covenants in all material respects with and satisfied all agreements, obligations and covenants required by this Agreement conditions on its part to be performed, performed or satisfied or complied with by Seller by the time Closing Date pursuant to the terms hereof, and Buyer shall have received a certificate of Seller, signed by its President and dated the Closing Date, to both such effects. 6.1.3 As of the Closing, there shall have been no material change since the date of the most recent Financial Statements in the Seller or any Subsidiary, and neither Seller nor any Subsidiary shall have suffered any material loss (whether or not insured) by reason of physical damage caused by fire, earthquake, accident or other calamity which substantially affects the value of their respective assets, properties or business, and Buyer shall have received a certificate of Seller, signed by its principal financial officer and dated the Closing Date, to such effect. (c) 6.1.4 Seller shall have executed and delivered the Receivables Guaranty. 6.1.5 Seller shall have delivered to Buyer a certificate Certificate of Seller dated the Secretary of State (or other authorized public official) of Seller's and each Subsidiary's respective jurisdiction of incorporation (and each other jurisdiction listed in Schedule 2.5 hereof) certifying as of a date reasonably close to the Closing Date that Seller or such Subsidiary, as the case may be, has filed all required reports, paid all required fees and signed by an taxes, and is, as of such date, in good standing and authorized officer of Seller to transact business as a domestic or foreign corporation, as the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedcase may be. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) 6.1.6 Seller and its applicable Affiliates shall have executed and delivered to Buyer each the Escrow Agreement. 6.1.7 The Escrow Agent shall have acknowledged receipt of the Collateral Agreements Escrow Fund and accepted the same subject to which Seller the terms and its applicable Affiliates are a party, and conditions of the Escrow Agreement. 6.1.8 Buyer shall have received from Arnall Golden & Gregory, LLP, counsel for Xxxxxx, an opinion, dated the other Closing Date, in the form attached hereto as Exhibit "D". 6.1.9 Seller shall have obtained all authorizations, consents, waivers and approvals as may be required in connection with the assignment of those contracts, agreements, instruments licenses, leases, sales orders, purchase orders and documents other commitments to be assigned to Buyer pursuant hereto. a-72684.2 44 6.1.10 Seller shall have executed and delivered to it under Section 2.1(b)the Bill of Sale, Assignment and Xxxxmption Agreement. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) 6.1.11 Seller shall have delivered to Buyer an affidavit a certificate, dated the Closing Date, of Seller's corporate Secretary certifying: (i) Resolutions of the Board and Seller's stockholders approving and adopting this Agreement and all transactions contemplated hereby and authorizing execution of this Agreement and the execution, performance and delivery of all agreements, documents and transactions contemplated hereby; and (ii) The incumbency of its officers executing this Agreement and all agreements and documents contemplated hereby. 6.1.12 The approval and all consents from any Third Party or Governmental Body required to consummate the transactions contemplated hereby shall have been obtained and the waiting period and any statutory extension thereof applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated. 6.1.13 No Proceeding shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby or any governmental consent, approval or authorization necessary for the consummation of the transactions of the transactions contemplated by this Agreement. 6.1.14 As of the Closing, there shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by a court of competent jurisdiction directing that the transactions provided for herein or any of them not be consummated as so provided or imposing any conditions on the consummation of the transactions contemplated hereby, which is unduly burdensome on Buyer. 6.1.15 Buyer shall have received from each of LOR, Inc., Rollins Investment Fund and Rxxxxxx Holding Company, Inc., an executed agreement whereby each of them, on their own behalf and on behalf of their respective affiliates, agrees to be bound by certain restrictive covenants substantially similar to those imposed on Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 5.2 of this Agreement; provided, however, that no such provision shall prohibit an investment in any publicly-traded entity that does not require the Retail Sales Tax Act (Ontario) and filing of a certificate pursuant to similar legislation Schedule 13D nor Schedule 13G under the Exchange Act. 6.1.16 Buyer shall have reasonably concluded, following the Environmental Due Diligence Review, that there are no material breaches in each other jurisdiction the warranties in which any Included Assets are located or Seller is registered Section 2.24; provided, however, that such conclusion shall not preclude the remedies of Buyer provided for provincial sales tax purposesherein. For purposes of this Section 6.1.16 only, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax."material a-72684.2 45

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for such representations Date, and warranties made as of a specified date, which Seller shall have performed and satisfied in all material respects all covenants and agreements required to be true performed and correct only as of such specified date), with only such exceptions as would not, individually satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) No suit, action or other proceeding brought by a third Person shall be pending, nor shall any order have been entered by any court or Governmental Authority having jurisdiction over the Parties or the subject matter of this Agreement which remains in effect at the time of Closing, in either case, that restrains or prohibits or seeks to restrain or prohibit, or (c) All material consents and approvals required of any Governmental Authority in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after Closing, shall have been received or waived in writing, or the necessary waiting period shall have expired, or early termination of the waiting period shall have been granted. (d) The aggregate sum of (i) the Title Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) for all Title Defects timely and properly asserted pursuant to Section 7.1, (ii) the Environmental Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) for all Environmental Defects timely and properly asserted pursuant to Article 8 and (iii) the Casualty Defect amounts (such amounts being the amounts agreed upon by the Parties (or, with respect to all amounts for which the Parties do not agree, such amounts being equal to fifty percent (50%) of the sum of Seller’s reasonable good faith estimate of such amounts plus Buyer’s reasonable good faith estimate of such amounts)) pursuant to Article 17, shall not have exceeded the Termination Threshold. (e) Seller shall have performed, satisfied or complied be ready, willing and able to perform its obligations set forth in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedSection 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each a certification of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially non-foreign status in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), attached as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a Exhibit “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxE”.

Buyer’s Conditions to Closing. The obligation of Buyer to purchase and pay for the Assets and assume the Assumed Liabilities, and to consummate the other transactions provided for hereby contemplated hereby, is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The (i) each of the representations and warranties of Seller made Sellers contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall failures to be true and correct only as of such specified date), with only such exceptions as would not(without giving effect to any Materiality Qualifiers) that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Effect or prohibit or materially impair the ability of each Seller to consummate the transactions hereunder, in each case on and as of the Closing Date, as though made on and as of the Closing Date (bunless and to the extent any such representation or warranty speaks specifically as of an earlier date, in which case, as of such earlier date); (ii) each Seller shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by such Seller by the time of the Closing. ; and (ciii) Seller Sellers shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an a duly authorized officer of each Seller to confirming the effect that each of the conditions specified above in Sections 2.2(a) and foregoing; (b) has been satisfied. (d) No Proceeding by no injunction or order, writ, decree or judgment of any Governmental Authority Entity of competent jurisdiction shall have been instituted that seeks to enjoin or prohibit be in effect as of the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment Closing that makes illegal, restrains or prohibits the purchase and sale of the Business Assets or the Included Assets consummation of the other material transactions contemplated hereby illegal or otherwise prohibited.by this Agreement; (fc) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination Provisional Consent Decree shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law accepted for public comment by the FTC; (d) the Provisional Consent Decree that shall have been made accepted for public comment by the FTC shall name Buyer as an acceptable purchaser of the Business or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive Buyer's acquisition of the requirement of an advance ruling certificate or “no-action” letter).Business otherwise shall been approved by the FTC; (he) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens each Seller or its Affiliates, as of the Effective Timeapplicable, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, all other documents and Buyer shall have received the other agreements, instruments and documents required to be delivered by such Seller to it under Section 2.1(b).Buyer hereunder; (jf) Since since the date of this Agreement, there shall not have been no changeany condition, circumstance, event or development that occurrence occurring or existing that, individually or in the aggregate, has had resulted or would reasonably be expected to result in a Material Adverse Effect; (g) the provisions of Section 7.9 shall have been implemented in such a manner that Buyer shall have the ability to continue to operate the Business on terms that are, taken as a whole, not materially less advantageous to Buyer than the terms on which the Business is presently conducted; (h) the proceeds of the financing contemplated by the Financing Commitment, or such lesser amount as may be necessary to consummate the transactions contemplated by this Agreement on the terms set forth herein and to provide Buyer with at least $75,000,000 of working capital and other post-Closing financing, shall be available to Buyer; (i) Buyer shall have received all consents, licenses, authorizations, certificates and permits required by Governmental Entities to consummate the transactions contemplated by this Agreement, except for failures to receive such consents, licenses, authorizations, certificates and permits that, individually or in the aggregate, and taking into account the availability of the arrangements contemplated by the Transition Services Agreement, the Co-Pack Agreement and the other Collateral Agreements, would not reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered Effect or prohibit or materially impair the ability of Buyer to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of consummate the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interesttransactions hereunder; (lj) Seller Buyer shall obtain and provide have received consents from, or modifications to or new agreements or arrangements with, the Persons identified in SCHEDULE 8.2(j) in such a manner that Buyer shall have the ability to continue to operate the Business on terms that are, taken as a whole, not materially less advantageous to Buyer at than the Closing a certificate pursuant to Section 6 of terms on which the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in Business is presently conducted, which any Included Assets are located modifications or Seller is registered for provincial sales tax purposesnew agreements, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.extent SCHEDULE 8.2

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditionsconditions in all material respects: (a) The representations the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words any required waiting period without the commencement of similar import, adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement (No required regulatory approval shall be true and correct at and as conditioned or restricted (including, without limitation, any requirement for Buyer to raise additional capital) in a manner which would so materially adversely affect the economic or business benefits of the date hereof and at and as of the Closing Date as if made on transactions contemplated by this Agreement that, had such date (except for condition or requirement been known, such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as party would not, individually or in the aggregateits reasonable judgment, have a Material Adverse Effectentered into this Agreement.); (b) each representation and warranty of Seller shall have performed, satisfied or complied in this Agreement being true and correct in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding without duplication of any standard of materiality set forth in any such Transferred Permits representation or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (gwarranty) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in the form all material respects (but without duplication of any standard of materiality set forth in Treasury Regulation any such representation or warranty); (c) Seller's delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) special warranty deeds conveying the Real Property; (ii) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the remaining Assets; (iii) a certificate executed by an appropriate officer of Seller attesting, to the officer's best knowledge, to Seller's compliance with the conditions set forth in Section 1.1445-2(b)(2)(iv9.3(b); (iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under estoppel certificates executed by the penalties lessors of perjury that such Person the Leased Branches; (v) sublease agreements with respect to the Leased Branches where the lease is not a “foreign person” within assigned to Buyer; (vi) FIRPTA Affidavit complying with the meaning requirements of Section 1445 of the Internal Revenue Code orof 1986, as amended; and (d) Buyer's agreement to receive the Closing Statement and the Settlement Payment as provided in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interestSection 3.2; (le) Seller Such other documents necessary to effect the transactions contemplated hereby as Buyer shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.reasonably request; and

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate at the transactions provided for hereby is Closing are subject to the satisfaction (at or prior to the Closing, or waiver in writing by Buyer) as of the Closing of each , of the following conditions: (a) The All representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating this Agreement, to the extent qualified with respect to materiality, Material Adverse Effect or words of similar import, shall be true and correct at in all respects, and to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date hereof if such representations and warranties were made at and as of the Closing Date as if made on such date (except for to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct only as of such the specified date), with only such exceptions as would not, individually and Seller shall have performed and satisfied in all material respects all covenants and agreements required to be performed and satisfied by it under this Agreement at or in prior to the aggregate, have a Material Adverse EffectClosing. (b) Seller shall have performedOn the Closing Date, satisfied no injunction, order or complied in all material respects with all agreements, obligations and covenants required award enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement to be performed, satisfied or complied with shall have been issued by Seller by the time of the Closinga Governmental Authority and remain in force. (c) All material consents and approvals required of Governmental Authorities in order to sell and transfer the Assets to Buyer and otherwise close and consummate the transaction contemplated herein, except consents and approvals of assignments by Governmental Authorities that are customarily obtained after Closing, shall have been received or waived in writing, or the necessary waiting period shall have expired, or early termination of the waiting period shall have been granted; provided that Seller shall have delivered not be responsible for any repair or remediation costs to Buyer any wxxxx set forth on Schedule 5.19 that fail to pass a certificate of Seller dated mechanical integrity test or other inspection by the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedOklahoma Corporation Commission. (d) No Proceeding by any Governmental Authority The aggregate adjustments to the Base Purchase Price attributable to Title Defects, Environmental Defects, Open Defects and Casualty Defects shall not have been instituted that seeks to enjoin or prohibit exceeded the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingTermination Threshold. (e) There Seller shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedhave performed its obligations set forth in Section 10.5. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it Closing Settlement Statement defined under Section 2.1(b)10.3. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The Buyer’s obligation of Buyer to consummate the transactions provided for hereby close this transaction is subject to the satisfaction (or waiver by BuyerXxxxx’s written waiver) as of the Closing of each of the following conditions: conditions (a“Buyer’s Conditions to Closing”) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made on such Date, unless an earlier date is specified in this Agreement: (except for such 1) Seller’s representations and warranties made as of a specified dateset forth in this Agreement are true, which shall be true accurate and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations on and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time as of the Closing.; (c2) Seller shall have delivered has materially performed all of its obligations to Buyer a certificate of be performed by Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied.on or before Closing; and (d3) No Proceeding by any Governmental Authority Any other express conditions set forth in this Agreement in Buyer’s favor shall have been instituted fully satisfied. It is expressly understood and acknowledged by Xxxxx that seeks to enjoin this Agreement and Xxxxx’s obligations hereunder are not contingent or prohibit conditioned upon obtaining a commitment for any financing and the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability failure of Buyer to obtain or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There close any financing for any reason whatsoever shall not be any Applicable Law a failure of condition to Xxxxx’s performance hereunder. Any and all title exceptions or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. defects (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money“Title Exceptions”), must have been obtained including, without limitation, liens, encumbrances, covenants, conditions, reservations, restrictions, rights, rights of way, or made as set forth therein, easements existing on and on before the terms Effective Date shall be accepted by Buyer and conditions described therein, and be in full force and effect. constitute permitted exceptions (g) The waiting period applicable to “Permitted Exceptions”). If any updated title report generated by Buyer after the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 Effective Date discloses new Title Exceptions (the “HSR ActNew Title Exceptions”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted that would appear as an exception on a title policy, Buyer must accept such exceptions and any other consentproceed with Closing; provided, authorizationhowever, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. object to a New Title Exception if (i) the New Title Exception represents a material title defect; and (ii) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of caused or created the Collateral Agreements to which Seller and its applicable Affiliates are a party, and New Title Exception after the Effective Date (“Intentional Defect”). Buyer shall have received the other agreementsgive Seller written notice of any objections to an Intentional Defect within seven (7) days after receipt of an updated title report; otherwise, instruments and documents any failure to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” object within the meaning of Section 1445 of the Code orseven (7) day period shall be deemed waived. If Buyer properly objects to an Intentional Defect as provided in this paragraph, then Seller may, in its sole discretion, elect to (i) cure such Intentional Defect by notifying Buyer within seven (7) days after the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.objection; or

Buyer’s Conditions to Closing. The obligation of Buyer to consummate the transactions provided for hereby is Closing shall be subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions, any or all of which may be waived in whole or in part by Buyer: (a) The 6.1.1. Each of Seller’s representations and warranties set forth in this Agreement (as modified by all modifications and updates expressly permitted by ARTICLE 3 or deemed to have been made by the second sentence of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, Section 5.4) shall be true and correct at and as of the date hereof and at and in all material respects as of the Closing Date as (provided, however, that Seller may extend the Closing Date for up to five (5) days in order to give Seller the opportunity to cure any material inaccuracies). This condition shall not be deemed to be satisfied if any modification or update otherwise permitted by ARTICLE 3 is made on such date or deemed to have been made by the second sentence of Section 5.4 (except for such and not cured by Seller to Buyer’s satisfaction) following the expiration of the Due Diligence Period that (a) discloses an Action that satisfies any of clauses (i) through (iii) of the first sentence of Section 3.5, or (b) modifies Seller’s representations and warranties made in a manner that has a material effect on the value or operations of the Hotel or Seller’s ability to transfer the Hotel to Buyer, as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or determined by Buyer in the aggregate, have a Material Adverse Effectits reasonable discretion. (b) 6.1.2. Seller shall have performed, satisfied performed all of its material obligations and complied with all of its material covenants under this Agreement required to have been performed or complied in all material respects with all agreementsat or prior to Closing, obligations and covenants required not taken or caused to be taken any action prohibited by this Agreement prior to Closing, including, without limitation, Seller’s covenants and obligations under Section 5.3 and 7.2. 6.1.3. The Title Company shall be performed, satisfied or complied with by Seller by the time prepared to issue to Buyer (upon payment of the customary and normal premiums by Buyer and delivery of an owner’s title affidavit, gap indemnity and any required escrows as described in Section 5.2 by Seller), immediately upon consummation of Closing. , an ALTA 2006 owner’s policy (cwith standard NY endorsement appended) Seller shall have delivered of title insurance based upon the Title Commitment insuring Buyer as fee owner of the Hotel, as of the Closing Date (and without any gap or other exception with respect to Buyer a certificate of Seller dated matters arising between the Closing Date and signed by an authorized officer the recording of Seller the deed of conveyance described in Section 7.2.1), subject only to the effect that each Permitted Exceptions in an amount equal to the portion of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedPurchase Price that is allocable to the real property comprising the Hotel. (d) No Proceeding by any Governmental Authority 6.1.4. Seller shall have been instituted that seeks provided to enjoin Buyer a copy of an unconditional final Certificate of Occupancy for the Hotel or prohibit a Temporary Certificate of Occupancy for the transactions contemplated hereby or by Hotel which Certificate of Occupancy shall permit the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale opening for business of the Business or Hotel as a hotel containing not fewer than 115 guest rooms and the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth thereinoperation thereof for its intended use, and on the terms and conditions described therein, and which be in full force and effecteffect and which shall be reasonably acceptable to Buyer, subject, however, to the establishment of an escrow as further set forth in Section 2.3 hereof. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) 6.1.5. Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as substantially completed the construction of the Closing Date Hotel in accordance with the Approved Plans and substantially in Specifications an obtained a Certificate of Substantial Completion from the form architect, subject, however, to the establishment of an escrow as further set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax2.4 hereof.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate proceed with the transactions provided for hereby is Closing are subject to the satisfaction (fulfillment at or waiver by Buyer) as of prior to the Closing Date of each of the following conditionsconditions set forth in this Section 9.1: (a) The the representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, Section 5 shall be he true and correct at and as of the date hereof and at Closing Date with the same effect as though made on and as of the Closing Date as if made on such date (except for such that representations and warranties made which speak as of a specified date, which date or period of time shall be true and correct only as of such specified datedate or period of time), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.; (b) Seller all Gaming Approvals shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.been obtained; (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above documents set forth in Sections 2.2(a) and (b) has been satisfied.Section 8.1; (d) No Proceeding by any Governmental Authority Buyer shall have been instituted received evidence satisfactory to it that seeks Buyer will receive at Closing good and marketable title to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale each of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filingsPurchased Assets, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens Liens; (e) a license agreement, relating to the Keno Intellectual Property, executed by Buyer and Gaming Arts, effective as of the Effective TimeClosing, subject to the terms being in the form approved by Buyer; (f) a sublicense agreement, relating to the Intellectual Property known as Nevada Numbers and the Transferred Facilities relating to a License Agreement between Gaming Arts and the Adjacent Leased Warehouse Facilities shall be free Seller, executed by Buyer and clear of all Liens other than Permitted Liens Gaming Arts, effective as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered Closing, subject to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially terms being in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred approved by the Canadian Seller is a U.S. real property interestBuyer; (lg) Seller shall obtain all covenants, agreements and provide obligations contained in this Agreement to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located be performed or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable complied with by Seller under such legislation have been paid up on or prior to the Closing Date shall have been performed or complied with in all material respects; and (h) all such other instruments or documents as may be reasonably required by Buyer in order to consummate the transactions contemplated herein. Buyer shall have the right to waive in writing any or all of the conditions precedent to its obligations hereunder; provided, however, that Seller has entered into satisfactory arrangements for payment no waiver by Buyer of such sales taxany condition to its obligations hereunder shall constitute a waiver by Buyer of any other condition precedent to its obligations hereunder.

Buyer’s Conditions to Closing. The Buyer's obligation of Buyer to consummate proceed with the transactions provided for hereby Closing is subject to the satisfaction (or waiver by Buyer) as of the Closing Buyer of each of the following conditionsconditions set forth below, which are for Buyer's benefit only: (a) The Sellers' representations and warranties of Seller made set forth in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at in all material respects, except for those representations and warranties that are qualified as to materiality which shall be true and correct in all respect, on and as of the date hereof and at on and as of the Closing Date as if made on such date (and as of the Closing Date, except for such representations and warranties made as of a specified datemodifications to any representation or warranty, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or may have been agreed to in the aggregate, have a Material Adverse Effectwriting by Buyer. (b) Seller Sellers shall have performed, satisfied or performed and complied in all material respects with all agreements, obligations agreements and covenants conditions required by this Agreement and the Leases to be performed, satisfied performed or complied with by Seller by the time of Sellers on or prior to the ClosingClosing Date. (c) Seller shall have delivered or caused to be delivered to Buyer a certificate the documents required of Seller dated Sellers and the Closing Date and signed by an authorized officer of Seller Designated Individuals pursuant to the effect that each of the conditions specified above in Sections 2.2(aSECTION 3.4(A) and (b) has been satisfiedcomplied with the requirements of SECTION 3.4(C). (d) No Proceeding by any All consents and approvals from Governmental Authority Bodies (defined below) and third parties under contracts necessary to ensure that Buyer will continue to have the same full rights with respect to the Assets as Seller had immediately prior to the consummation of the transaction contemplated hereunder shall have been instituted obtained. (e) Seller, as of the Closing Date, is in compliance with all of its terms regarding delivery of the Facilities to Buyer. (f) During the Interim Period (defined below) there will have been no changes in the Businesses, except changes which have occurred in the ordinary course of a Business and which individually or in the aggregate, have not affected and which would not reasonably be expected to affect the condition of any of the Businesses in any material adverse respect. Without limiting the generality of the foregoing: (i) no damage to or destruction of any material part of the Assets shall have occurred, whether or not covered by insurance; (ii) Seller shall have at least 1,200 cars at each of the St. Louis, MO and Virginia Beach, VA Facilities and at least 1,000 cars at each of the Kansas City, MO and Columbus, OH Facilities and no material change in the quality or age of the Inventory shall have occurred; (iii) none of the automobile suppliers of any of the Businesses that seeks account for greater than 5% of any of the Businesses (by dollar volume) shall have ceased or advised Seller or Buyer of its intention to enjoin cease delivering or prohibit selling to the applicable Business; and (iv) no directive, order, decision or ruling of any court, tribunal or regulatory authority shall have been made, which would impose any limitations or conditions which would have a material adverse effect on any of the Businesses or which prohibits or prevents the consummation of the transactions contemplated hereby by this Agreement. (g) Buyer has obtained any and all licenses, permits, registrations, certificates and authorizations necessary to operate the Businesses or by the Collateral Agreements or Facilities, including without limitation those set forth on Schedule 11.1(t) hereto and a letter from the zoning authority for the city of Columbus, Ohio confirming that could the use of the UWI-COL Properties' Facilities as a salvage yard is a legal non-conforming use; provided that Buyer has been diligent in its efforts to obtain such items and except where the failure to obtain such items would not reasonably be expected to have a material adverse effect affect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on following the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effectDate. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer to consummate the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions: (a) The representations and warranties of the Seller Parties made in Article 3 (other than the Fundamental Representations), disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct in all material respects at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) The Fundamental Representations of the Seller Parties made in Article 3, disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct in all respects at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date). (c) The Seller Parties shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by the Seller Parties by the time of the Closing, to the extent not waived by Buyer with respect to the Closing condition set forth in Section 2.2(g). (cd) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a), (b) and (bc) has been satisfied. (de) No Proceeding by any Governmental Authority or other Person shall have been instituted that seeks to enjoin or prohibit threatened which questions the validity or legality of the transactions contemplated hereby or by the Collateral Agreements or that which could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Acquired Assets or the Business after the Closing. (ef) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Acquired Assets contemplated hereby illegal or otherwise prohibited. (fg) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), Consents identified in Schedule 2.2(g) must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (gh) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law Buyer shall have expired or early termination shall have been granted received the consent of JPMorgan Chase Bank, N.A. and any other consent, authorization, order, approval, declaration and filing required SunTrust Bank under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective TimeParent’s senior secured revolving credit facility. (i) The Core-Xxxx Agreement shall have been amended or modified on terms satisfactory to Buyer. (j) Seller (i) shall have (A) executed and delivered, or caused to be executed and delivered, to Buyer all documents necessary to release the Acquired Assets from all Liens covering the Acquired Assets (which documents shall be in a form reasonably satisfactory to Buyer’s counsel) and (B) filed or recorded such documents with all appropriate Governmental Authorities to the extent such Liens are filed or recorded in the records of Governmental Authorities, or (ii) shall have performed all obligations (including the payoff of all secured Indebtedness prior to or concurrently with the Closing) necessary for the release of such Liens and caused the holders of the Liens to issue their commitments to execute and deliver such release documents (in form appropriate for filing or recording, if applicable, and otherwise reasonably satisfactory to Buyer’s counsel), which commitments shall be unconditional except for the payoff of the secured Indebtedness with the proceeds from the Initial Purchase Price. (k) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (jl) Seller and its applicable Affiliates shall have executed and delivered to Buyer the applicable documents necessary to transfer the UPC codes that relate to the Products. (m) Since the date of this Agreement, there shall have been no change, event or development that has had or would could reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer’s obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) The Delivery by Seller to the Title Company at or prior to Closing of all items required to be delivered by Seller pursuant to Section 7(b) and Section 7(d) below. (b) Performance by Seller, in all material respects, as and when required by this Agreement of each and every material term, covenant, condition and agreement required to be performed by Seller pursuant to this Agreement. (c) All of the representations and warranties of Seller made contained in Article 3 disregarding all qualifications Section 8 and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be Section 14(b) hereof are true and correct at and as of the date hereof and at and correct, in all material respects, as of the Closing Date as if made on such date (except for such unless Seller’s representations and warranties are expressly made as of a specified certain date, in which event the same shall be true and correct only correct, in all material respects, as of such specified certain date), subject to modification by any Disclosure (as hereinafter defined) in accordance with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(aSection 8(a) and (bto Buyer’s express rights set forth in Section 8(a) has been satisfiedrelating to any such Disclosure. (d) No Proceeding As of the Closing Date, the Title Company shall be unconditionally committed to issue the Title Policy to Buyer in the form required by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the ClosingSection 3 above. (e) There Seller shall not be any Applicable Law or Judgment that makes have obtained and delivered the purchase and sale of the Business Water Certification or the Included Assets contemplated hereby illegal or otherwise prohibitedWater Indemnity (as hereinafter defined). (f) Each of the Transferred Permits or filings, the absence of which on Seller shall have received and provided to Buyer at least two (2) Business Days prior to the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR ActEstoppel Delivery Date”), the Required Tenant Estoppels (as hereinafter defined) consistent with and in form required by the terms of Section 9(j) of this Agreement (for the avoidance of doubt, Required Tenant Estoppels shall mean a Tenant Estoppel (as hereinafter defined) from each Commercial Tenant (as hereinafter defined)). Notwithstanding anything in this Agreement to the contrary, if one or any similar foreign Applicable Law more of the Required Tenant Estoppels have not been obtained prior to the Estoppel Delivery Date, Seller shall have expired or early termination shall have been granted and any other consentthe right, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that by providing written notice to Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other no later than the Transferred Facilities Estoppel Delivery Date, to extend the Closing Date for up to fifteen (15) days to allow Seller to obtain the outstanding Required Tenant Estoppel(s) and satisfy the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of condition set forth in this Section 5(f). Notwithstanding anything in this Agreement to the Effective Timecontrary, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date by execution of this Agreement, there shall have Buyer acknowledges and agrees that the condition set forth in this Section 5(f) has been no change, satisfied in full and Buyer hereby irrevocably waives any and all right to terminate this Agreement under this Section 5(f). In the event that any of the conditions set forth above in this Section 5 is not satisfied on or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of before the Closing Date (and substantially Buyer is not otherwise in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3default of this Agreement beyond any available notice and cure period), as applicableBuyer may elect, setting forth such Person’s nameat its sole discretion, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian giving written notice to Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up prior to the Closing Date either (i) to terminate this Agreement or that Seller has entered into satisfactory arrangements for payment (ii) to waive satisfaction of the condition and close escrow. In the event of such sales taxtermination for reasons described in Section 5(a) or Section 5(b) above, Buyer’s sole and exclusive remedies shall be those set forth in Section 2(d) above (subject to the notice and cure provisions set forth therein). In the event of such termination for reasons described in Section 5(c) above, Buyer’s remedies shall be governed by Section 8(a). In the event of such termination for reasons described in Section 5(d), Section 5(e), or Section 5(f), Buyer’s sole and exclusive remedy shall be the return of the Deposit to Buyer, and thereupon neither party shall have any further obligations under this Agreement, except that either party shall have the right to enforce the Surviving Obligations.

Buyer’s Conditions to Closing. The obligation of Buyer to consummate purchase and pay for the transactions provided for hereby Assets is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditions:conditions (all or any of which may be waived in whole or in part by Buyer in its sole discretion): (ai) The representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at on and as of the Closing Date Date, as if though made on such date (and as of the Closing Date, except for such representations and warranties made as of a specified date, date or time earlier than the Closing Date (which shall need only be true and correct only as of such specified datedate or time), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) and Seller shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by Seller by the time of the Closing. , except for breaches of such representations and warranties that, in the aggregate, would not have a material adverse effect on the financial condition, Assets, business or annual results of operations of the Business taken as a whole (c) a “Material Adverse Effect”); and Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially signed by the President or a Vice President of Seller confirming the foregoing. (ii) No Law or Order shall be in effect as of the form set forth Closing which restrains, prohibits or otherwise makes illegal the purchase and sale of the Assets. (iii) Buyer has raised the requisite cash in Treasury Regulation Section 1.1445-2(b)(2)(ivorder to close this transaction pursuant to the terms and conditions of this Agreement. (iv) or 1.1445-2(c)(3)Seller shall have furnished to Buyer: (A) A Certificate of the Chief Executive Officer of Seller certifying that (i) the Chief Executive Officer is authorized to execute this Agreement on behalf of Seller, as applicable, setting forth such Person’s name, address and Federal employer identification number that (ii) Seller is duly organized and stating in good standing under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 laws of the Code or, in the case State of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interestCalifornia; (lB) A certified copy of the resolutions adopted by the members of Seller authorizing the execution, delivery and performance of this Agreement by the Chief Executive Officer of Seller; (v) The board of directors of Buyer shall have approved the execution and delivery of this Agreement by Buyer. (vi) Seller shall obtain will have lawfully terminated all of its employees and provide to Buyer at consultants on the day before the Closing a certificate pursuant to Section 6 Date, all of whom are identified in Schedule 7(a)(vi); and (vii) Seller will have lawfully terminated the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered Commercial Lease dated January 1, 2003 for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxPremises.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) The representations In the event that, prior to Closing, the Property, or any part thereof, is destroyed or materially damaged, and warranties such damage exceeds $500,000.00, or if condemnation proceedings are commenced against the Property, Buyer shall have the right, exercisable by giving notice of such decision to Seller made within ten (10) business days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement, in Article 3 disregarding all qualifications and exceptions relating to materialitywhich case, Material Adverse Effect or words of similar import, the Deposit shall be true returned to Buyer, and correct at thereafter, the Agreement shall terminate and neither party shall have any further rights or obligations hereunder except as otherwise specifically provided in paragraphs 4 and 13(b) hereof. In the event the casualty damage to the Property is $500,000.00 or less, Buyer shall accept the Property in its then condition and proceed with the purchase with no reduction, offset or abatement of the date hereof and at and Purchase Price; provided that if Buyer elects to accept the Property in its then condition (or is deemed to have accepted the Property), all proceeds of insurance or condemnation awards paid or payable to Seller by reason of such damage, destruction or condemnation shall be paid or assigned to Buyer, together with the full amount of any deductible or if the insurance is provided by self-insurance as provided in the Credit Lease, Buyer shall receive such amount as would otherwise be available if third party insurance coverage had been provided, subject to the rights of the Closing Date as if made on Credit Tenant to such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually proceeds or in awards under the aggregate, have a Material Adverse EffectCredit Lease. (b) Seller shall have performed, satisfied or complied in made all material respects with all agreements, obligations and covenants of the deliveries required by this Agreement to be performed, satisfied or complied with made by Seller by the time of the Closingas set forth in Section 7(b) hereof below. (c) Delivery by Seller shall have delivered on or before Closing of a Credit Tenant estoppel certificate substantially in the form attached hereto and marked Exhibit K, dated no earlier than thirty (30) days prior to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfiedDate. (d) No Proceeding Performance by any Governmental Authority shall have been instituted that seeks Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to enjoin or prohibit the transactions contemplated hereby or be performed by the Collateral Agreements or that could reasonably be expected Seller pursuant to have a material adverse effect on the right or ability of Buyer or its Affiliates this Agreement prior to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale Delivery of the Business or Owner's Title Policy insuring marketable fee simple title to the Included Assets contemplated hereby illegal or otherwise prohibited.Buyer, in for and substance acceptable to Buyer without exception accept as approved by Buyer in accordance with paragraph 4(a) hereof; (f) Each All of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made Seller's representations and warranties as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (gparagraph 8(a) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) below shall be free true and clear of all Liens other than Permitted Liens as of correct and unmodified. In the Effective Time, and event that the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. conditions set forth above in this paragraph 5 are not satisfied (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date is not otherwise in default of this Agreement), there Buyer may elect to terminate this Agreement or waive satisfaction of the condition and close escrow in either instance by giving written notice to Seller. In the event of such termination, the Deposit shall be returned to Buyer and thereafter the parties shall have been no change, event further rights or development obligations hereunder except as otherwise specifically provided in paragraphs 4 and 13(b) hereof; provided that has had or would reasonably if the conditions are not satisfied as a result of a default by Seller hereunder then Buyer shall be expected entitled to have the remedies for a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated Seller's default as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv2(d) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales taxhereof.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditions: (a) The the parties obtaining all regulatory approvals which are required in order for them to proceed with the transactions contemplated by this Agreement and the expiration of any required waiting period without the commencement of adverse proceedings by any governmental authority with jurisdiction over the transactions contemplated by this Agreement; (b) the representations and warranties of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, shall be this Agreement being true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such that representations and warranties made as of a specified date, which shall date need be true and correct only as of such specified date); (provided, with only however, that for purposes of determining the satisfaction of the condition contained in this Section 9.3(b), such exceptions as would notrepresentations and warranties shall be deemed to be true and correct if the failure or failures of such representations and warranties to be so true and correct (excluding the effect of any qualification set forth therein relating to "materiality" or "Seller Material Adverse Effect") do not constitute or give rise to, and are not reasonably likely to constitute or give rise to, individually or in the aggregate, have a Seller Material Adverse Effect. (b) ), and all covenants and conditions of Seller shall have performed, satisfied to be performed or complied met by Seller on or before the Closing Date having been performed or met in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing.respects; (c) Seller shall have delivered Seller's delivery to Buyer of the following documents in form and substance reasonably satisfactory to Buyer: (i) subject to Section 7.3, special warranty deeds conveying the Owned Real Property; (ii) bills of sale, assignments and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the remaining Assets; (iii) a certificate of Seller dated the Closing Date and signed executed by an authorized appropriate officer of Seller attesting, to the effect that each officer's best knowledge, to Seller's compliance with the conditions set forth in Section 9.3(b); and (iv) subject to Section 6.5, appropriate estoppel certificates executed by the lessors of the conditions specified above in Sections 2.2(a) Leased Facilities, to the extent Seller can obtain such certificates using its reasonable efforts and (b) has been satisfied.without the payment of any fees to such lessors; and (d) No Proceeding by any Governmental Authority All consents of third parties listed on Schedule 4.3 or required pursuant to the terms of the Real Property Leases shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.obtained; and (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on Buyer's agreement to receive the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities Statement and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens Settlement Payment as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Timeprovided in Section 3.2. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation of Buyer Buyer's obligations to consummate purchase the transactions provided for hereby Assets and assume the Liabilities is contingent upon and subject to the satisfaction (or waiver by Buyer) as of the Closing of each fulfillment of the following conditionsconditions in all material respects: (a) The representations parties obtaining all regulatory approvals which are necessary for them to proceed with the transactions contemplated by this Agreement and warranties the expiration of Seller made in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words any required waiting period without the commencement of similar import, shall be true and correct at and as of adverse proceedings by any governmental authority with jurisdiction over the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.transactions contemplated by this Agreement; (b) Each express representation, covenant and warranty of Seller shall have performed, satisfied or complied in this Agreement being true and correct in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially all covenants and conditions of Seller to be performed or met by Seller on or before the Closing Date having been performed or met in all material respects; (c) Seller's delivery to Buyer of the following documents in form and substance satisfactory to counsel for Seller and Buyer: (i) The executed Preliminary Closing Statement; (ii) Special warranty deeds conveying the Real Property; (iii) Bills of sale, assignments, and other instruments of transfer sufficient to convey to Buyer all of Seller's right, title, and interest in and to the remaining Assets; (iv) A certificate executed by an appropriate officer of Seller attesting, to the officer's best knowledge, to Seller's compliance with the conditions set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv9.3; and (v) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under Estoppel certificates executed by the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 lessors of the Code or, in the case Leased Branches; and (d) Buyer's receipt of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Preliminary Payment as provided in Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax3.3.

Buyer’s Conditions to Closing. The following conditions are conditions ----------------------------- precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) The representations Seller maintaining the Property in its present condition until Closing, reasonable wear and warranties tear excepted. Seller shall bear all risk of loss or damage by every casualty prior to Closing Date. In the event that, prior to Closing, the Property, or any part thereof, is destroyed or materially damaged, and such damage exceeds $150,000.00, or if condemnation proceedings are commenced against the Property resulting in an award in excess of $150,000, taking any part of the improvements or in excess of ten percent (10%) of the parking , Buyer shall have the right, exercisable by giving notice of such decision to Seller made within ten (10) business days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement, in Article 3 disregarding all qualifications and exceptions relating to materialitywhich case neither party shall have any further rights or obligations hereunder. In the event of such termination, Material Adverse Effect or words of similar import, the Deposit shall be true returned to Buyer. If Buyer elects to accept the Property in its then condition, all proceeds of insurance or condemnation awards payable to Seller by reason of such damage, destruction or condemnation shall be paid or assigned to Buyer and correct at and as Seller shall credit the Purchase Price to the extent of the date hereof and at and as any deductible under any policies of the Closing Date as if made on such date (except for such representations and warranties made as of a specified dateinsurance, which credit shall be true and correct only as not exceed the amount of such specified date)damages. In the event the casualty damage to the Property is $150,000.00 or less, Buyer shall accept the Property in its then condition and proceed with only the purchase, in which case Buyer shall accept payment or assignment of applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Seller covering the Property up to the amount necessary to make the necessary repairs or restorations and Seller shall credit the Purchase Price to the extent of any deductible under any policies of insurance, which credit shall not exceed the amount of such exceptions as would not, individually or in the aggregate, have a Material Adverse Effectdamages. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with Delivery by Seller by the time at Closing of the ClosingDeed. (c) Delivery by Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above Assignment and Assumption of Leases in Sections 2.2(a) and (b) has been satisfied.the form attached hereto as Exhibit B. (d) No Proceeding Delivery by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit Seller of an Assignment of Warranties, Guaranties and Service Contracts in the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingform attached hereto as Exhibit G;. (e) There shall not Performance by Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibitedperformed by Seller pursuant to this Agreement. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability All units are to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force rent ready condition (defined as containing carpet, refrigerator, range, garbage disposal, heating, plumbing and effectelectrical systems). (g) The waiting period applicable to All personal property (as set forth on Exhibit K) and all mechanical, electrical, heating, air conditioning, sewer, water and plumbing systems will be in working order and in the transactions contemplated hereby under same condition as on the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 Approval Date. In the event that the conditions set forth above in this paragraph 5 are not satisfied (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date is not otherwise in default of this Agreement), there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to may terminate this Agreement, dated as subject to paragraph 2(d) hereof, or waive satisfaction of the Closing Date condition and substantially close escrow in either instance by giving written notice to Seller. In the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment event of such sales taxtermination, for reasons described in (b) - (g) above, the Deposit shall be returned to Buyer.

Buyer’s Conditions to Closing. The obligation of Buyer BUYER to consummate purchase and pay for the transactions provided for hereby Assets and assume the Assumed Liabilities is subject to the satisfaction (or waiver by BuyerBUYER) as of the Closing of each of the following conditions: (a) The representations and warranties of Seller SELLER made in Article 3 of this Agreement (other than the representation set forth in Section 3.16(b) and Section 3.19(a)), disregarding all qualifications and exceptions contained therein relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct at and as of the date hereof and at and as of the Closing Date as if made on such date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller The representation of SELLER made in Section 3.16(b) and Section 3.19(a) shall be true and correct in all respects on the Closing Date as if made on and as of such date. (c) SELLER shall have performed, satisfied performed or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied performed or complied with by Seller SELLER by the time of the Closing. (cd) Seller SELLER shall have delivered to Buyer BUYER a certificate of Seller SELLER dated the Closing Date and signed by an authorized officer of Seller SELLER to the effect that each of the conditions specified above in Sections 2.2(a) and through (bc) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closingis satisfied in all respects. (e) There No injunction or order of any court or administrative agency of competent jurisdiction shall not be any Applicable Law in effect as of the Closing that restrains or Judgment that makes prohibits the purchase and sale of the Business Assets or the Included Assets contemplated hereby illegal or otherwise prohibitedexercise by BUYER of control over the Assets. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (g) The waiting period applicable to the transactions contemplated hereby under the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter)terminated. (hg) The material Included Assets SELLER (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilitiesor one of its subsidiaries) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer BUYER (or one of its subsidiaries) each of the Collateral Agreements to which Seller Omnibus Patent Assignment, the Omnibus Trademark Assignment and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b)Patent License. (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment of such sales tax.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for hereby is hereunder are subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsconditions at or before Closing, the occurrence of which may, at the option of Buyer, be waived: (a) The All representations and warranties of Seller made Sellers in Article 3 disregarding all qualifications and exceptions relating this Agreement (i) that are not qualified as to materiality, Material Adverse Effect or words of similar import, materiality shall be true and correct at and as of the date hereof and at in all material respects on and as of the Closing Date as if made as of the Closing and (ii) that are qualified as to materiality shall be true in all respects on such date (except for such representations and warranties as of the Closing as if made as of a specified datethe Closing, which (it being understood, however, that for purposes of this sentence the accuracy of any representation or warranty that expressly speaks as of the date of this Agreement or another date prior to this Agreement shall be true and correct only determined solely as of the date of this Agreement or such specified dateother date and not as of the Closing), with only and Sellers shall have delivered to Buyer a certificate to such exceptions effect dated as of the Closing Date; (b) Except as contemplated by this Agreement, since September 9, 2004, through the Closing Date, there shall not have been any changes, occurrences or circumstances that have had, or would notreasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect.; provided, however, for purposes of this Section 8.1(b), there shall be disregarded any adverse effects resulting from or attributable to (i) general economic conditions or general conditions in the industry in which Sellers do business (other than such conditions which affect Sellers’ Business in a materially disproportionate manner in comparison to similarly situated businesses within the industry), (ii) the public announcement of the transactions contemplated by this Agreement (including, without limitation, adverse effects on the business relationships held by Sellers, or loss of employees or other service providers), or (iii) changes, occurrences or circumstances which are caused by the performance of Sellers’ pre-closing covenants set forth in this Agreement, and Sellers shall have delivered to Buyer a certificate to such effect dated as of the Closing Date (bc) Seller Sellers shall have performed, satisfied or performed and complied in all material respects with all agreements, of their obligations and covenants required by under this Agreement which are to be performed, satisfied performed or complied with by Seller by Sellers prior to or on the time of the Closing. (c) Seller Closing Date, and Sellers shall have delivered to Buyer a certificate to such effect dated as of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied.Date; (d) No Proceeding Sellers shall be willing and able to deliver all of the items required to be delivered by any Governmental Authority shall have been instituted that seeks them pursuant to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability Section 3.2 of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing.this Agreement; (e) There shall not be No temporary restraining order, preliminary or permanent injunction or other order issued by any Applicable Law court of competent jurisdiction or Judgment that makes other legal restraint or prohibition preventing the purchase and sale consummation of the Business or the Included Assets transactions contemplated hereby illegal or otherwise prohibited.herein shall be in effect; (f) Each The waiting period under the HSR Act shall have expired or a notification of early termination of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must waiting period shall have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect.received by Buyer; (g) The waiting period applicable On behalf of themselves and their bankruptcy estates, Sellers shall have irrevocably waived and committed not to proceed with any preference, avoidance or other actions pursuant to Chapter 5 of the transactions contemplated hereby under Bankruptcy Code including, without limitation, claims, causes or actions against any Seller or against the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act officers or directors of 1976 Sellers (the “HSR Act”) or any similar foreign Applicable Law shall have expired or early termination shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement one of an advance ruling certificate or “no-action” letter)them) in their capacities as such. (h) The material Included Assets (other than the Transferred Facilities Indemnification Agreement between X.X. Childs, Real Mex and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens Buyer dated as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities date hereof shall be free duly executed and clear of all Liens other than Permitted Liens as of the Effective Time.in full force and effect; (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, The Joinder Agreement between X.X. Childs and Buyer shall have received and the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there parties thereto shall have been no changecompleted and duly executed by all the parties thereto; (1) With respect to the Liquor Licenses, event either (a) the appropriate Governmental Authority shall have approved the transfer of the Liquor Licenses to Buyer, or development that has had (b) Replacement Liquor Licenses with respect to the non-transferred Liquor Licenses shall be in effect, except where the failure of the conditions set forth in subsections (a) or (b) above, either individually or in the aggregate, would reasonably be expected to not have a Material Adverse Effect.Effect on the Business and the Assets, and (2) with respect to the Liquor License relating to the Restaurant #011 in Sacramento, California, such Liquor License shall be in full force and effect and not subject to modification, suspension, cancellation or revocation; (k) Seller shall have delivered to Buyer an affidavit The amount of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially cash in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address Restricted Accounts together with vendor deposits and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interestbond collateral shall be no less than $4.7 million; (l) Seller shall obtain and provide The sale of the Assets contemplated by this Agreement to Buyer at shall be approved by the Closing a certificate pursuant to Section 6 Bankruptcy Court in the Approval Order and entered on the docket by the Clerk of the Retail Sales Tax Act (OntarioBankruptcy Court, which as to the transactions contemplated by this Agreement, is in form and substance as provided in Section 8.1(m) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation below shall have been paid up entered by the Bankruptcy Court and become a Final Order by the deadlines described in Section 10.9(vi) of this Agreement. Notwithstanding anything in Section 8.1(m) to the Closing Date contrary, nothing in this Agreement shall preclude Buyer from consummating the transactions contemplated herein if Buyer, in its sole and absolute discretion, waives the requirement that the Approval Order, or that Seller has entered into satisfactory arrangements for payment any other Order, shall become a Final Order. No notice of such sales taxwaiver of this or any other condition to Closing need be given except to Sellers, the Committee and the Prepetition Lenders, it being the intention of the parties hereto that Buyer shall be entitled to and is not waiving (without any limitations thereto), the protections of the Bankruptcy Code, the mootness doctrine, or any other statute or body of Law. Nothing contained in this Section 8.1(l) shall be construed as an obligation that Buyer waive the requirement that the Approval Order, or any other Order, become a Final Order; and (m) The Approval Order shall be in form and substance satisfactory to Buyer in its sole, reasonable discretion, and shall provide the broadest protection for Buyer permitted by applicable Law, and include factual and legal findings and rulings at least as protective of Buyer as those provided to the buyer of the debtor’s assets in the sale order entered by the Bankruptcy Court in In re DNA Sciences, Inc., Chapter 11 Case No. 03-41843 N11 (Bankr. N.D. Cal. May 12, 2003) (Xxxxxxx, J.). For the avoidance of doubt, it is understood that the receipt by Buyer of the equity and debt financing contemplated by Section 6.7 hereof is not a condition to Buyer’s obligations hereunder.

Buyer’s Conditions to Closing. The following conditions are conditions precedent to Buyer's obligation of Buyer to consummate purchase the transactions provided for hereby is subject to the satisfaction (or waiver by Buyer) as of the Closing of each of the following conditionsProperty: (a) Seller shall conduct business at the Property in a good and diligent manner consistent with Seller's current business practices and shall maintain the Property in its present condition through the date of Closing, reasonable wear and tear excepted. (b) Seller has terminated, at Seller's sole cost and expense, all Service/Equipment Contracts except to the extent Buyer has given Seller written notice that certain Service/Equipment contracts should be continued and Buyer has assumed post Closing liability for such contracts, however, such services shall be continued at Seller's expense until the Closing Date. (c) The Title Company shall stand ready to issue the Title Policy in the form required herein. (d) Delivery by Seller at Closing of the Closing Documents described in Section 8 hereof. (e) Performance by Seller as and when required by this Agreement of each and every term, covenant, condition and agreement required to be performed by Seller pursuant to this Agreement and all of Seller's representations and warranties of Seller made contained in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at on and as of the Closing Date as if made anew on such date (except for such representations and warranties made as of a specified that date, which shall be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller dated the Closing Date and signed by an authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each Delivery by Seller of Tenant Estoppel Certificates in the form attached hereto as Exhibit F for tenants comprising at least 80% of the Transferred Permits or filingsnet rentable square feet of the Property which shall include all tenants listed on Exhibit F-1, the absence substance and content of which on shall be consistent with the Certified Rent Roll and Seller shall use commercially reasonable efforts to obtain the required Tenant Estoppel Certificates. Buyer shall cooperate with Seller post Closing Date would materially impair Buyer’s ability to operate complete collection of Tenant Estoppels. In the Businessevent sufficient Tenant Estoppels cannot be obtained, Buyer shall accept a Seller Estoppel in the form attached hereto as currently conducted Exhibit F-2 and all post Closing Tenant Estoppels shall be delivered pursuant to the terms of Exhibit F-2. In the event that the conditions set forth above in this Section 6 are not satisfied (but excluding any such Transferred Permits or filings the absence and Buyer is not otherwise in default of which can be cured solely by the payment of moneythis Agreement), must have been obtained Buyer may elect to terminate this Agreement or made as set forth therein, waive satisfaction of the condition and on the terms and conditions described therein, and be close escrow in full force and effecteither instance by giving written notice to Seller. (g) The waiting period applicable Seller has hired legal counsel and consultants to review a pending application by Sequent Computer Company to change the existing traffic patterns at the Property and filed objections to the transactions contemplated hereby under plan on the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act condition that Buyer reimburse Seller for the cost of 1976 (such objections, including, but not limited to the “HSR Act”) or cost of any similar foreign Applicable Law shall have expired or early termination shall consultants hired and reasonable attorney fees. The objections have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law shall have been made or obtained, including Competition Act Clearance (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letter). (h) The material Included Assets (other than the Transferred Facilities overruled and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates shall have executed and delivered to Buyer each of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(3), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up to the Closing Date or that Seller has entered into satisfactory arrangements for payment filed an appeal of such sales taxeven date herewith.

Buyer’s Conditions to Closing. The obligation obligations of Buyer to consummate the transactions provided for contemplated hereby is are, unless waived by Buyer, subject to the satisfaction (fulfillment, at or waiver by Buyer) as of before the Closing Closing, of each of the following conditions: (ai) The representations No Legal Requirement of a Governmental Authority shall be in effect which prohibits, restricts or enjoins or otherwise materially adversely affects the consummation of the transactions contemplated by this Agreement. (ii) No Proceeding shall be pending or threatened (A) which seeks to prohibit, restrict, enjoin, nullify, seek material damages with respect to, or otherwise materially adversely affect the consummation of the transactions contemplated by this Agreement or (B) which if adversely determined would materially and warranties adversely affect the value of the Purchased Assets or materially and adversely interfere with the ability of Buyer to manufacture and market the Products under the Licensed Trademarks. (iii) Each representation and warranty of Seller made set forth in Article 3 disregarding all qualifications and exceptions relating to materiality, Material Adverse Effect or words of similar import, this Agreement shall be true and correct at and as of the date hereof and at and as of the Closing Date as if though made on such date (and as of the Closing Date, except for such that, representations and warranties made that by their terms speak only as of a specified date, which shall the date hereof or some other specific date need be true and correct only as of such specified date), with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect. (b) Seller shall have performed, satisfied or complied in all material respects with all agreements, obligations and covenants required by this Agreement to be performed, satisfied or complied with by Seller by the time of the Closing. (c) Seller shall have delivered to Buyer a certificate of Seller approved by Buyer dated the Closing Date and signed executed by an a duly authorized officer of Seller to the effect that each of the conditions specified above in Sections 2.2(a) and (b) has been satisfied. (d) No Proceeding by any Governmental Authority shall have been instituted that seeks to enjoin or prohibit the transactions contemplated hereby or by the Collateral Agreements or that could reasonably be expected to have a material adverse effect on the right or ability of Buyer or its Affiliates to own, operate, possess or transfer the Included Assets or the Business after the Closing. (e) There shall not be any Applicable Law or Judgment that makes the purchase and sale of the Business or the Included Assets contemplated hereby illegal or otherwise prohibited. (f) Each of the Transferred Permits or filings, the absence of which on the Closing Date would materially impair Buyer’s ability to operate the Business, as currently conducted (but excluding any such Transferred Permits or filings the absence of which can be cured solely by the payment of money), must have been obtained or made as set forth therein, and on the terms and conditions described therein, and be in full force and effect. (giv) The waiting period applicable Seller shall have obtained, or to the reasonable satisfaction of Buyer obviated the need to obtain, all Consents and Governmental Authorizations, if any, required to consummate the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 by this Agreement. (the “HSR Act”v) or any similar foreign Applicable Law Seller shall have expired performed and complied with all covenants and agreements required to be performed or early termination complied with by Seller under this Agreement prior to or concurrently with the Closing, and Seller shall have been granted and any other consent, authorization, order, approval, declaration and filing required under any other Applicable Law delivered to Buyer a certificate approved by Buyer dated the Closing Date executed by a duly authorized officer of Seller to such effect. (vi) Buyer shall have been made received all certificates and other documents required to be delivered to Buyer at or obtained, including Competition Act Clearance before the Closing pursuant to this Agreement duly executed by all necessary persons (provided that Buyer may at its sole option waive the requirement of an advance ruling certificate or “no-action” letterother than Buyer). (hvii) The material Included Assets (other than the Transferred Facilities and the Adjacent Leased Warehouse Facilities) shall be free and clear of all Liens other than Permitted Liens as of the Effective Time, and the Transferred Facilities and the Adjacent Leased Warehouse Facilities shall be free and clear of all Liens other than Permitted Liens as of the Effective Time. (i) Seller and its applicable Affiliates Global shall have executed and delivered to Buyer each an amendment to the Trademark License to delete the existing clause (i) and the existing final sentence of the Collateral Agreements to which Seller and its applicable Affiliates are a party, and Buyer shall have received the other agreements, instruments and documents to be delivered to it under Section 2.1(b). (j) Since the date of this Agreement, there shall have been no change, event or development that has had or would reasonably be expected to have a Material Adverse Effect. (k) Seller shall have delivered to Buyer an affidavit of each of Seller and any affiliate of Seller transferring Included Assets pursuant to this Agreement, dated as of the Closing Date and substantially in the form set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) or 1.1445-2(c)(32.2(d), as applicable, setting forth such Person’s name, address and Federal employer identification number and stating under the penalties of perjury that such Person is not a “foreign person” within the meaning of Section 1445 of the Code or, in the case of the affidavit of the Canadian Seller, that none of the Included Assets transferred by the Canadian Seller is a U.S. real property interest; (l) Seller shall obtain and provide to Buyer at the Closing a certificate pursuant to Section 6 of the Retail Sales Tax Act (Ontario) and a certificate pursuant to similar legislation in each other jurisdiction in which any Included Assets are located or Seller is registered for provincial sales tax purposes, each of which indicates that all sales tax collectible or payable by Seller under such legislation have been paid up both relating to the Closing Date or that Seller has entered into satisfactory arrangements for payment services of such sales taxAlan Greco.