Common use of Conditions to Closing Clause in Contracts

Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's The obligation of the Seller to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at on or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, by the Seller in whole or in part, part to the extent permitted by nStorapplicable law): (i) Xxxxx the representations and warranties of the Company, Coinvest and Purchaser set forth in this Agreement shall be true and correct in all material respects at and as of the Closing, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); (ii) the Company, Coinvest and Purchaser shall have performed and complied in all of the material respects with all obligations and complied with all of the covenants agreements required by this Agreement to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby.Closing; and (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There there shall not have been institutedbe in effect any Order by a Governmental Entity of competent jurisdiction restraining, pending enjoining or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of otherwise prohibiting the transactions contemplated by this Agreement. (vib) X. Xxxxx shall have entered into Employment The obligation of each of the Company, Coinvest and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing, of each of the following conditions (any or all of which may be waived, as provided for to each of the Company, Coinvest and Purchaser, by the Purchaser, in Section 3(a) hereof.whole or in part, to the extent permitted by applicable law): (viii) Each representation the representations and warranty warranties of Xxxxx contained Seller set forth in this Agreement shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at Closing, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such time.earlier date); (viiiii) There has not been any Seller shall have performed and complied in all material adverse change in the business, operations respects with all obligations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated agreements required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.Closing; (iii) There there shall not have been institutedbe in effect any Order by a Governmental Entity of competent jurisdiction restraining, pending enjoining or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of otherwise prohibiting the transactions contemplated by this Agreement; and (iv) the closing of the transactions contemplated by the Subscription Agreement shall have occurred or shall occur concurrently with the Closing.

Conditions to Closing. Each Investor’s obligation to purchase and pay for the Common Units to be purchased by such Investor hereunder is subject to the satisfaction or waiver by such Investor, at or before Closing, of the following conditions: (a) nStor's obligation to consummate the transactions contemplated The representations and warranties made by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed when made and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date time of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations both before and complied with all of its covenants required immediately after giving effect to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iiib) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or All conditions precedent to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any closing and consummation of the transactions contemplated by the Preferred Securities Purchase Agreement, the Agreement and Plan of Merger, the Senior Credit Agreement and the underlying placement or similar agreement relating to the Subordinated Note Indentures, in each case, as set forth therein, shall have been satisfied or waived (provided that any waiver of a condition shall have been disclosed to each Investor and consented to by each Investor), and each such agreement shall be in full force and effect. (c) The Company shall have delivered to such Investor a certificate of the chief executive officer or the chief financial officer or a vice president of the Company, dated the date of the Closing, to the effect set forth in clauses (a) and (b) above. (d) The purchase of and payment for the Common Units to be purchased by such Investor on the date of the Closing on the terms and conditions herein provided (including the use of the proceeds from the sale of such Common Units by the Company) shall not violate any applicable law or governmental regulation and shall not subject such Investor to any tax, penalty, liability or other onerous condition under or pursuant to any applicable law or governmental regulation, and such Investor shall have received such certificates or other evidence as it may request to establish compliance with this condition. All necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery and performance of the Related Agreements (other than the Incentive Unit Agreements) or the consummation of the transactions contemplated hereby or thereby shall have been issued or made, shall be final and in full force and effect and shall be in form and substance reasonably satisfactory to such Investor. (e) All proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident hereto shall be reasonably satisfactory in substance and form to such Investor, and such Investor shall have received all such counterpart originals or certified or other copies of the Operating Agreement, the Members Agreement, the Registration Rights Agreement and such other documents as it may request. (f) The Company shall have sold, or contemporaneously with such sale to such Investor will sell, to the other Investors the Common Units to be purchased by them at the Closing and shall have received payment in full therefor. (g) Such Investor shall have received from Xxxxxxxx & Xxxxx LLP, who is acting as special corporate counsel for the Company, a favorable opinion reasonably satisfactory to such Investor. The Company, by its execution hereof, hereby requests and authorizes such special counsel to render such opinion. (h) Each of the Operating Agreement, the Members Agreement and the Registration Rights Agreement shall have been executed and delivered by each party thereto other than such Purchaser.

Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, The respective obligations of each of the Company and the Backstoppers to complete the transactions contemplated hereby are subject to the reasonable satisfaction of the following conditions precedent (any prior to or all at the Effective Time, each of which is for the mutual benefit of the Company, on the one hand, and the Backstoppers, on the other hand, and may be waived, in whole or in part, jointly by the Company and the Backstoppers (provided that such conditions shall not be enforceable by the Company or the Backstoppers, as the case may be, if any failure to satisfy such conditions results from an action, error or omission by or within the control of the Party seeking enforcement (or, in the case where the party seeking enforcement is one or more of the Backstoppers, an action, error or omission by or within the control of the Backstopper seeking enforcement)): (i) the Information Circular as filed and distributed, and the Plan, as filed, distributed and approved, shall be acceptable to the Company and the Backstoppers; (ii) all conditions precedent to the Transaction and implementation of the Plan (including those set out in the Support Agreement) shall have been satisfied or waived in writingaccordance with the terms of the Support Agreement and the Plan and the Company shall have provided Goodmans with a certificate certifying such conditions have been satisfied or waived as of the Implementation Date; (iii) there shall not be any actions, investigations or proceedings, including appeals and applications for review, in progress, or to the knowledge of the Company or the Backstoppers, pending or threatened, by or before any Governmental Entity in Canada or the United States, in relation to the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares or Backstop Consideration Shares or the Share Offering, any of which is reasonably likely to be successful against the Company or the Issuer and which operates to prevent or restrict the lawful distribution of such shares (which prevention or restriction is continuing); and (iv) there shall not be any order issued by a Governmental Entity pursuant to applicable Laws, nor shall there be any change of applicable Law, in either case which operates to prevent or restrict the lawful distribution of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares or Backstop Consideration Shares (which prevention or restriction is continuing). (b) The obligations of the Backstoppers to complete the purchase of the Backstopped Shares are subject to satisfaction of the following conditions on or before the Implementation Date, each of which is for the benefit of the Backstoppers and may be waived, in whole or in part, by nStorthe Backstoppers (provided that such conditions shall not be enforceable by the Backstoppers if any failure to satisfy such conditions results from an action, error or omission by or within the control of the Backstopper seeking enforcement): (i) Xxxxx the Backstoppers shall have completed their due diligence with respect to the Share Offering on or before the date that is seven Business Days prior to the Implementation Date and such due diligence shall be satisfactory to the Backstoppers in their sole discretion; (ii) all actions required to be taken by or on behalf of the Company and/or the Issuer, including the passing of all requisite resolutions of their directors and all requisite filings with, or approvals, orders, rulings and consents of, any Governmental Entity will have occurred on or prior to the Implementation Date, so as to validly authorize the Share Offering, the creation and issuance of the Offering Shares, the Accrued Interest Offering Shares, the Backstopped Shares, the Backstop Consideration Shares and the purchase of Backstopped Shares by the Backstoppers as contemplated by this Agreement; (iii) the Company shall have obtained all applicable material non-governmental third party consents; (iv) counsel to the Issuer shall have delivered to the Backstoppers one or more legal opinions satisfactory to Goodmans, acting reasonably, collectively confirming that, as of the Implementation Date, the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares shall be: (a) duly authorized, validly issued and fully paid and non-assessable and, subject to receipt by the Issuer of an executed Rep Letter from each Backstopper and all information set forth in each such Rep Letter remaining true and correct as of the Implementation Date, the issuance thereof shall be in compliance with applicable Securities Laws and exempt from registration under the US Securities Act; and (b) freely tradable in Canada (provided that the Issuer is and has been a reporting issuer in a jurisdiction of Canada for four months preceding the trade, the trade is not a “control distribution” as defined in Canadian Securities Laws, no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade, no extraordinary commission or consideration is paid to a person or company in respect of the trade, and if the selling security holder is an insider or officer of the Issuer, the selling security holder has no reasonable grounds to believe that the Issuer is in default of Canadian Securities Laws). For greater certainty, the opinions of counsel may contain standard assumptions, including, without limitation, to assume the accuracy of statements made in the executed Rep Letters; (v) all terms and conditions of the Share Offering included in the Information Circular, the Plan and any other related document prepared by the Company or the Issuer for distribution or circulation shall have been acceptable to the Backstoppers and shall not have been changed in any material respect unless otherwise agreed to in writing by the Company and the Backstoppers in accordance with the terms of this Agreement; (vi) the Issuer (if it is not the Company) shall have entered into an agreement prior to the Election Deadline agreeing to be bound by the terms of this Agreement; (vii) the Company, the Issuer and the Subsidiaries shall have performed all of their material obligations under and in accordance with this Agreement and the Support Agreement (for greater certainty, material obligations include, without limitation, the obligations and complied with all of the covenants required to be performed Company or to be complied with by them under this Agreement on or prior to the Closing Date.Issuer in Sections 3(h), 3(i), 3(j) and 3(k) hereof); (iiviii) Xxxxx shall have delivered to nStor any the representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of each of the transactions contemplated hereby. (iii) nStor Company and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Subsidiaries contained in this Agreement and the Support Agreement shall continue to be true and correct, except to the extent such representations and warranties are by their terms given as of a specified date, in which case such representations and warranties shall be true and correct both at in all respects as of such date, and except as such representations and warranties may be affected by the date on which occurrence of events or transactions contemplated and permitted by this Agreement is and the Support Agreement and each of the Company and the Subsidiaries shall have provided Goodmans with a certificate signed and at and by an officer of the Company or the Subsidiary, as applicable, certifying compliance with this Section 7(b)(viii) as of the Closing Date as if made anew at and as of such time.Implementation Date; (viiiix) There has not no change of control payments shall be owing or payable to the Company’s officers or employees in connection with the Transaction; (x) on the Implementation Date, all of the reasonable fees and expenses of the Advisors, for services rendered as counsel to the Backstoppers up to and including the Implementation Date, shall have been any material adverse change paid; provided that the Advisors shall have provided the Company with invoices for all such fees and expenses incurred up to the date that is five Business Days prior to the Implementation Date, and shall have also provided the Company with a reasonable estimate of all such fees and expenses to be incurred by the Advisors in the business, operations and financial conditions of Andataco period from and that date to the Implementation Date; (xi) there shall not have occurred after the date of the 1998 10-K until the Closing Date.hereof a Material Adverse Change; and (bxii) The obligations of Xxxxx there shall not exist, after giving effect to consummate the Transaction and the other transactions contemplated by this Agreement shall be and the Support Agreement and assuming implementation of the Plan, any Material default or event of default under any Material Contract now in effect that will remain in effect following the Implementation Date (other than those defaults or events of default that are remedied, waived, stayed, extinguished or otherwise in any way rendered inoperative as part of the Proceedings). (c) The obligations of the Issuer to consummate the issuance of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and the Backstop Consideration Shares are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any on or all before the Implementation Date, which are for the benefit of which the Issuer and may be waived in writingwaived, in whole or in part, by Xxxxxthe Issuer (provided that such condition shall not be enforceable by the Issuer if any failure to satisfy such condition results from an action, error or omission by or within the control of the Issuer): (i) nStor the representation and warranties of each of the Backstoppers (other than the Defaulting Backstoppers or the Objecting Backstoppers) contained in this Agreement shall continue to be true and correct, except to the extent such representations and warranties are by their terms given as of a specified date, in which case such representations and warranties shall be true and correct in all respects as of such date, and except as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Agreement; and (ii) each of the Backstoppers shall have performed all of its material obligations to be performed by such Backstopper under and complied in accordance with all this Agreement and the Support Agreement. (d) Each of its covenants required the Company and the Backstoppers agree that it will use commercially reasonable efforts to cause the conditions set forth in this Section 7 to be satisfied on or before the Implementation Date to the extent that such conditions relate to acts to be performed or caused to be complied with performed by it under this Agreement on or prior to the Closing Datesuch Party. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation The obligations of each Party to consummate the transactions contemplated by that are to be consummated at the Closing pursuant to the terms of this Agreement shall be subject to the fulfillmentsatisfaction, at or prior to Closingas of the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, by the Parties in whole or in part, by nStor): (i) Xxxxx The transactions contemplated under the MIPA shall have been consummated, subject to Assignee’s delivery of the documents set forth in Section 2.8(c)(ii) – (iv). (b) The obligations of Assignee to consummate the transactions that are to be consummated at the Closing pursuant to the terms of this Agreement shall be subject to the satisfaction, as of the Closing Date, of the following conditions (any of which may be waived by Assignee in whole or in part): (i) Assignor shall have delivered to Assignee a binder in respect of the R&W Policy. (ii) Each of (i) the representations and warranties of Assignor set forth in Section 3.1 (Due Organization; Good Standing), Section 3.2(a) (Authorization), and Section 3.5 (Non Foreign Person) (the “Assignor Fundamental Representations”) shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such Assignor Fundamental Representations are made as of another date, which Assignor Fundamental Representations shall be true and correct in all respects as of such date) and (ii) the other representations and warranties of Assignor set forth in Article III shall be true and correct (without giving effect to any “material,” “materially,” “materiality,” “material adverse effect,” “material adverse change” or similar qualifiers contained in any of such representations and warranties) in all respects, except where the failure to be so true and correct, individually or in the aggregate, does not and would not reasonably be expected to have a material adverse effect on Assignor’s ability to perform its obligations under this Agreement and to consummate the transactions contemplated hereunder, in each case as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representations and warranties speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date). (iii) Assignor shall have performed or complied in all of the obligations and complied material respects with all of the covenants required by this Agreement to be performed or to be complied with by them under this Agreement on Assignor at or prior to the Closing Date. (c) The obligations of Assignor to consummate the transactions that are to be consummated at the Closing pursuant to the terms of this Agreement shall be subject to the satisfaction, as of the Closing Date, of the following conditions (any of which may be waived by Assignor in whole or in part): (i) Each of (i) the representations and warranties of Assignee set forth in Section 4.1 (Due Organization; Good Standing) and Section 4.2(a) (Authorization) (the “Assignee Fundamental Representations”) shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such Assignee Fundamental Representations are made as of another date, which Assignee Fundamental Representations shall be true and correct in all respects as of such date) and (ii) Xxxxx the other representations and warranties of Assignee set forth in Article IV shall have delivered be true and correct (without giving effect to nStor any “material,” “materially,” “materiality,” “material adverse effect,” “material adverse change” or similar qualifiers contained in any of such representations and warranties) in all approvalsrespects, consents or assignments except where the failure to be obtained by Xxxxx so true and necessary for correct, individually or in the consummation of aggregate, does not and would not reasonably be expected to have a material adverse effect on Assignee’s ability to perform its obligations under this Agreement and to consummate the transactions contemplated herebyhereunder, in each case as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representations and warranties speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date). (iiiii) nStor and its accountants, attorneys and other representatives Assignee shall have had full and complete access during normal business hours performed or complied in all material respects with all covenants required by this Agreement to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on be performed or complied with by Assignee at or prior to the Closing Date. (vd) There Assignor agrees that (i) Assignor shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or reasonably and in good faith assess whether a Company Material Adverse Effect (as defined in the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking MIPA) has occurred prior to restrain or prohibit any of consummating the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the businessMIPA, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Assignor shall have delivered to Xxxxx any in good faith (A) consider whether an objective and all approvalsreasonable third party would conclude that a Company Material Adverse Effect had occurred based on the facts and circumstances at the relevant time, consents or assignments to be obtained by nStor (B) base such assessment on the Brand Companies as a whole and necessary for not solely on the consummation intellectual property assets of the transactions contemplated hereby. Brand Companies, and (C) in good faith consider any factors raised by Assignee affecting the Assigned Assets and the Acquired Assets (as defined in the Gaiam-FFL APA), and (iii) There if Assignor reasonably and in good faith concludes that a Company Material Adverse Effect has occurred and is ongoing such that the condition set forth in Section 8.02(c) of the MIPA is not satisfied, then Assignor shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or waive the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any condition set forth in Section 8.02(c) of the transactions contemplated by this AgreementMIPA without the prior written consent of Assignee, such consent not to be unreasonably withheld, conditioned or delayed.

Conditions to Closing. (a) nStorThe obligations of Purchaser hereunder to purchase and of Seller hereunder to sell the Shares are subject to the fulfillment of the following conditions: (i) all permits, orders, approvals, consents, non-disapprovals or non-objections relating to the Insurance Filings and of any other governmental or insurance regulatory authority which are required in connection with the consummation of the transaction contemplated by this Agreement including, but not limited to, the approval by the States in which the Insurance Filings are required and such other regulatory authorities as require a permit, order, approval, consent, non-disapproval or non-objection (in the case of any non-disapprovals or non-objections as evidenced by the time period prescribed by applicable insurance law having elapsed without Purchaser having received any objection), shall have been obtained (and, subject to Purchaser's obligation obligations under Section 5(b) and (c), not contain any conditions or other terms that are not reasonably acceptable to Purchaser) and such permits, orders, approvals, consents, non-disapprovals and/or non-objections shall be effective and shall not have been suspended, revoked or stayed; (ii) all applicable waiting periods under the HSR Act shall have expired or been terminated; and (iii) no injunction or law prohibiting or making illegal the consummation of the transaction contemplated by this Agreement shall have been enacted, issued, promulgated or enforced by any court or governmental authority having jurisdiction over Seller or Purchaser. (b) The obligations of Seller to consummate the transactions transaction contemplated by this Agreement shall be further subject to the fulfillment, at or prior to Closingthe Settlement Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): conditions: (i) Xxxxx the representations and warranties of Purchaser contained in this Agreement shall have performed been true and correct when made and shall be true and correct in all material respects as of the obligations Settlement Date, with the same force and complied with all effect as if made at the Settlement Date (except if made as of a specified earlier date), (ii) the covenants required to be performed or and agreements contained in this Agreement to be complied with by them under this Agreement Purchaser on or prior before the Settlement Date shall have been complied with in all material respects, and (iii) Seller shall have received a certificate from Purchaser to the Closing Dateeffect set forth in clauses (i) and (ii) signed by a duly authorized representative thereof. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bc) The obligations of Xxxxx Purchaser to consummate the transactions transaction contemplated by this Agreement shall be further subject to the fulfillment, at on or prior to Closingthe Settlement Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): conditions: (i) nStor the representations and warranties of Seller contained in this Agreement shall have performed been true and correct when made and shall be true and correct in all material respects as of its obligations the Settlement Date, with the same force and complied with all effect as if made at the Settlement Date (except for the representation and warranty set forth in Section 3(d), which shall only be made as of its the date of this Agreement), (ii) the covenants required to be performed or and agreements contained in this Agreement to be complied with by it under this Agreement Seller on or before the Settlement Date shall have been complied with in all material respects, and (iii) Purchaser shall have received a certificate from Seller to the effect set forth in clauses (i) and (ii) signed by a duly authorized representative thereof and if requested in writing by Purchaser at least two (2) days prior to the Closing Settlement Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this a duly executed Assignment Agreement.

Conditions to Closing. (a) nStor's obligation Section 7.01 Conditions to Obligations of the Parent and the Merger Sub. The obligations of the Parent and the Merger Sub to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentfulfillment or the Parent’s waiver, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (ia) Xxxxx shall have performed all Other than the representations and warranties of the obligations Company and/or the Stockholders contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06, and complied with all Section 3.19, the representations and warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to Company and/or the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Stockholders contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct both at in all respects (in the case of any representation or warranty qualified by materiality or Company Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and as of the date hereof and on which this Agreement is signed and at and as of the Closing Date with the same effect as if though made anew at and as of such time. date (viii) There has not been any material adverse change except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the businessCompany and/or the Stockholders contained in Section 3.01, operations Section 3.02, Section 3.03, Section 3.06, and financial conditions Section 3.19 shall be true and correct in all respects on and as of Andataco from and after the date hereof and on and as of the 1998 10-K until Closing Date with the Closing Datesame effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). (b) The obligations Company and the Stockholders shall have duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date; provided, that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Company and the Stockholders shall have performed such agreements, covenants, and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against the Parent, the Merger Sub, the Company, or any Stockholder that would prevent the Closing. No Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any Governmental Order that is in effect and has the effect of Xxxxx to consummate making the transactions contemplated by this Agreement shall be subject to the fulfillmentillegal, at otherwise restraining or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the prohibiting consummation of the transactions contemplated hereby. (iii) There shall not have been institutedsuch transactions, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit causing any of the transactions contemplated by hereunder to be rescinded following completion thereof. (d) All approvals, consents, and waivers that are required to be listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Parent at or prior to the Closing. (e) From the date of this Agreement, there shall not have occurred any Company Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Company Material Adverse Effect. (f) The Company shall have delivered each of the closing deliverables set forth in Section 2.03(a). (g) The Employment Agreement shall have been executed by Xxxxx Xxxxxxxx and a true and complete copy thereof shall have been delivered to the Parent.

Conditions to Closing. (a) nStor5.1 Conditions Precedent to P2S and Buyer's Obligation to Close. The ------------------------------------------------------------- obligation of Buyer and P2S to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.: (iia) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx warranties of Seller and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for Principal set forth in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement 3 above shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations Seller and the Principal shall have performed and complied with all of Xxxxx to consummate their respective covenants hereunder in all material respects through the Closing Date. (c) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent or adversely affect Buyer's or P2S's consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; and no such injunction, judgment, order, decree, ruling, or charge shall be in effect. (d) No material adverse change shall have taken place with respect to the assets, and no event shall have occurred that could result in a Seller Material Adverse Effect. (e) Seller shall have held a duly convened meeting of its shareholders upon such notice and otherwise as required by the laws of the State of South Carolina (the "Shareholders Meeting"). At least ten days prior to the Shareholders Meeting, Seller shall have delivered to each of Seller's shareholders entitled to notice of and to vote at the Shareholders Meeting (i) a copy of this Agreement, (ii) the Schedules and Exhibits hereto and (iii) a copy of the dissenter's rights statute of the State of South Carolina in a manner that complies with the corporate laws of the State of South Carolina. The foregoing documents and information shall also be delivered to each member of a class or group entitled under the laws of the State of South Carolina to vote as a class or group in connection with the transactions contemplated by this Agreement. At the Shareholders Meeting, this Agreement and the transactions contemplated hereby shall be approved by holders of the outstanding capital stock of Seller entitled to vote at the Shareholders Meeting in an amount sufficient to satisfy the requirements of the laws of the State of South Carolina. (f) No shares entitled to vote at the Shareholders Meeting shall have exercised dissenter's rights. (g) Seller shall have delivered to Buyer and P2S a certificate executed by a duly authorized executive officer of Seller, and by the Principal, stating that all of the conditions specified above in Section 5.1(a) - (f) have been complied with; (h) Buyer shall be reasonably satisfied with the results of its due diligence review of Seller, the Business and the Assets; (i) Seller shall have executed and delivered to Buyer a Consulting Agreement in form and substance mutually acceptable to Buyer and the Principal (the "Consulting Agreement"); (j) Buyer and P2S shall receive confirmation from their professional financial advisers, in form and substance satisfactory to them in their sole reasonable discretion, that the books and records of Seller are sufficient to permit audited financial statements of Seller to be prepared for the years ended December 31, 2204 and December 31, 2003,or such shorter period as Seller has been in existence in accordance with GAAP and the rules and regulations of the Securities and Exchange Commission; (k) Buyer and Seller shall have mutually agreed upon those insurance deposits to be reimbursed to Seller at the time of Closing; and (l) All actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer and P2S. 5.2 Conditions Precedent to Seller's and the Principal's Obligation to ------------------------------------------------------------------- Close. The obligation of Seller and the Principal to consummate the ----- transactions contemplated hereby is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date: (a) The representations and warranties of Buyer and P2S set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date. (iib) nStor Buyer and P2S shall each have delivered to Xxxxx any performed and complied with all approvals, consents or assignments to be obtained by nStor and necessary for of their respective covenants hereunder in all material respects through the consummation of the transactions contemplated herebyClosing Date. (iiic) There No action, suit, or proceeding shall not have been instituted, be pending or threatened against Andatacobefore any court or quasi-judicial or administrative agency of any federal, Xxxxxstate, nStor local, or the Company foreign jurisdiction or before any suitarbitrator wherein an unfavorable injunction, action judgment, order, decree, ruling, or other proceeding by any private party charge would (i) prevent or governmental agency, commission, bureau or body seeking to restrain or prohibit adversely affect Buyer's consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; and no such injunction, judgment, order, decree, ruling, or charge shall be in effect; (d) No material adverse change shall have taken place with respect to Buyer or P2S, and no event shall have occurred that results in a Buyer Material Adverse Effect. (e) Buyer and P2S shall each have delivered to the Seller a certificate to the effect that each of the conditions specified above in Sections 5.2(a) - (d) has been complied with in all respects; (f) Seller shall be satisfied with the results of its due diligence review of Buyer; and P2S; (g) Buyer shall have executed and delivered to Principal the Consulting Agreement; (h) Buyer and Seller shall have mutually agreed upon those insurance deposits to be reimbursed to Seller at the time of Closing; and (i) All actions to be taken by Buyer and P2S in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Seller and the Principal.

Conditions to Closing. (a) nStor's obligation to consummate This Agreement shall only be legally binding on the transactions contemplated by parties when each and every party signs this Agreement, this Agreement shall be has been approved by resolution by the governing body or board of party, the parties satisfy all other conditions to the Closing and all termination of agreement rights have expired without being exercised by the eligible parties. 4.1 Conditions to the Investor’s Obligations. The obligation of Investor to purchase the Purchase Shares at the Closing is subject to the fulfillmentfulfillment to Investor’s satisfaction, at on or prior to Closingthe Closing Date, of each of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole by such Investor (as to itself or in part, by nStorhimself only): (ia) Xxxxx The representations and warranties made by the Company in Section 5 hereof, as qualified by the Disclosure Schedules and the SEC Filings, including 2020 10-K, shall be true and correct in all material respects, except for those representation and warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects, as of the date hereof and as of the Closing Date, as though made on and as of such date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all of the material respects all obligations and complied with all of the covenants herein required to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date. (iib) Xxxxx The Company shall have delivered to nStor obtained any and all consents, permits, approvals, consents or assignments to be obtained by Xxxxx registrations and waivers necessary for the consummation of the purchase and sale of the Purchase Shares and the consummation of the other transactions contemplated herebyby the Transaction Documents, all of which shall be in full force and effect. (iiic) nStor and its accountants, attorneys and other representatives The Company shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacodelivered the items set forth in Section 3.2(a). (ivd) nStor shall have received the nStor Financing on or prior to the Closing DateCompliance with all applicable federal and state securities laws and OTC Markets Group, Inc. requirements for issuance of Purchase Shares. (ve) There No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall not have been institutedissued, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, and no action or other proceeding shall have been instituted by any private party governmental authority, enjoining or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for preventing the consummation of the transactions contemplated herebyhereby or in the other Transaction Documents. (iiif) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or no Material Adverse Effect with respect to the Company since the Effective Date. (g) No stop order or suspension of trading shall have been imposed by OTCQB, the SEC or any suit, action other governmental or other proceeding by any private party or governmental agency, commission, bureau or regulatory body seeking with respect to restrain or prohibit any of public trading in the transactions contemplated by this AgreementCommon Stock.

Conditions to Closing. (a) nStorEach Party's Obligation. The respective obligation of each party hereto to consummate effect the transactions contemplated hereby is subject to the satisfaction or waiver as of the Closing of the following conditions: (i) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Entity that prohibits the HQ Merger or any of the other material transactions contemplated by this Agreement Agreement, and no action, claim, proceeding or investigation shall be subject pending or threatened by any Governmental Entity (other than a court acting in response to the fulfillmentan action, at claim or prior to Closingproceeding brought by a non-Governmental Entity) that, of each if successful, would result in any of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateforegoing effects. (ii) Xxxxx The waiting period under the HSR Act, if applicable to the transaction contemplated hereby, shall have delivered expired or been terminated. (b) The Company's Obligations. The obligation of the Company to nStor any and all approvals, consents or assignments VANTAS to be obtained by Xxxxx and necessary for the consummation of effect the transactions contemplated hereby.hereby is subject to the satisfaction or the Company's waiver as of the Closing of the following conditions: (iiii) nStor The representations and its accountants, attorneys warranties of VANTAS and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained RSI made in this Agreement shall be true and correct both at as of the date on which this Agreement is signed and at hereof and as of the time of the Closing Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such timeearlier date), and VANTAS and RSI shall have duly performed, complied with and satisfied in all material respects all covenants, agreements and conditions required by this Agreement to be performed, complied with or satisfied by VANTAS or RSI, as applicable, by the time of the Closing except where the failure of such representations and warranties to be true and correct and/or the failure to perform, comply with and satisfy such covenants, agreements and conditions would not constitute a material impairment of the aggregate value of (i) the consideration to be paid under the UK Agreement and the Stock Purchase Agreement and (ii) the capital stock to be retained by the persons who are stockholders of the Company immediately prior to the HQ Merger after giving pro forma effect to the HQ Merger (such impairment being a "Company Transaction Value Impairment"). VANTAS and RSI shall have delivered to the Company a certificate dated the Closing Date and signed by an officer of each of VANTAS and RSI, as applicable, confirming the foregoing. (ii) All of the conditions to the obligations of CarrAmerica and all additional selling stockholder parties to close under the Stock Purchase Agreement dated as of the date hereof by and among certain of the stockholders of the Company and RSI (the "Stock Purchase Agreement"), shall have been satisfied or waived (other than the condition that the HQ Merger be consummated) and the transactions contemplated thereunder shall be scheduled to close immediately upon the Closing. (iii) The Stockholders Agreement by and among Holdco, RSI, CarrAmerica and the other parties thereto, substantially in the form of Exhibit D hereto (the "Stockholders Agreement"), shall have been duly executed and delivered by Holdco and RSI and deemed effective simultaneously with the Second Step Merger. (iv) The Indemnification and Escrow Agreement, by and among certain stockholders of Holdco, RSI and such escrow agent as shall be mutually agreed to by the parties (the "Indemnification Escrow Agent"), substantially in the form of Exhibit E hereto (the "Indemnification Escrow Agreement"), shall have been duly executed and delivered by such stockholders of Holdco, RSI and the Indemnification Escrow Agent and the shares required to be delivered by RSI pursuant thereto shall have been delivered to the Indemnification Escrow Agent pursuant thereto. (v) VANTAS shall have executed and delivered the CarrAmerica Intercompany Agreements, substantially in the form of Exhibit F-1, Exhibit F-2 and Exhibit F-3, respectively, hereto (collectively, the "Xxxx Intercompany Agreements"). (vi) the Registration Rights Agreement by and among Holdco and certain holders of the Shares, substantially in the form of Exhibit G hereto (the "Holdco Registration Rights Agreement"), shall have been executed at the Closing; (vii) The Registration Rights Agreement by and among RSI and certain holders of the Shares, substantially in the form of Exhibit H hereto ( the "RSI Registration Rights Agreement"), shall have been executed at the Closing. (viii) There has not been any material adverse change The Escrow Agreement, by and among CarrAmerica, RSI, VANTAS and such escrow agent as shall be mutually agreed to by the parties, as escrow agent (the "Cash Escrow Agent"), substantially in the businessform of Exhibit I hereto (the "Cash Escrow Agreement"), operations shall have been duly executed and financial conditions of Andataco from delivered by RSI, VANTAS and after the date of Cash Escrow Agent and the 1998 10-K until cash required to be delivered to the Closing DateCash Escrow Agent by RSI and/or VANTAS pursuant hereto and thereto shall have been delivered to the Cash Escrow Agent. (bix) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants All actions required to be performed or taken by RSI and the HQ Surviving Corporation to be complied with by it under this Agreement on or prior to implement the Closing DateSecond Step Merger shall have been taken. (iix) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyIntentionally Omitted. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's The obligation of Issuer to consummate sell and of Note Sellers to acquire the Shares at the Closing pursuant to this Agreement shall be subject to there being no order of any court or administrative agency in effect which restrains or prohibits the transactions contemplated hereby, and no suit, action, investigation, inquiry or other legal or administrative proceeding having been instituted and remaining pending on the date of the Closing, or threatened on that date, which challenges the validity or legality of the transactions contemplated hereby and which (i) has a reasonable likelihood of success on the merits and (ii) if adversely determined, would render it unlawful, as of such date, to effect the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived substantially in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied accordance with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateterms. (b) The obligations of Xxxxx Note Sellers to consummate purchase the transactions contemplated by Shares at the Closing pursuant to the terms of this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or performance by Issuer in all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all material respects of its covenants required and obligations hereunder to be performed or to be complied with by it under this Agreement on at or prior to the Closing Dateand to all of Issuer's representations and warranties hereunder being true and correct in all material respects as if made on and, except if some other date is specifically set forth therein, as of the date of the Closing. (iic) nStor The obligations of Issuer to sell the Shares at the Closing pursuant to the terms of this Agreement shall have delivered be subject to Xxxxx any the performance by Note Sellers in all material respects of its covenants and all approvals, consents or assignments obligations hereunder to be obtained by nStor performed at or prior to the Closing and necessary for the consummation to all of Note Sellers' representations and warranties hereunder being true and correct in all material respects as if made on and, except if some other date is specifically set forth therein, as of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any date of the transactions contemplated by this AgreementClosing.

Conditions to Closing. (a) nStor's obligation The obligations of VF and the DC Parties to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx The Merger Closing shall have occurred or shall occur substantially simultaneously with the Closing hereunder. (ii) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing. (iii) Any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or been terminated. (b) The obligation of VF to consummate the Closing is subject to the satisfaction of the following further conditions: (i) The DC Parties shall have performed in all material respects all of the their obligations and complied with all of the covenants hereunder required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx DC Parties contained in this Agreement and in any certificate or other writing delivered by the DC Parties pursuant hereto shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at and as of such timedate (other than any representation and warranty that is expressly made as of a time other than the Closing Date). (viiiiii) There has not been No action, suit, investigation or proceeding shall be pending against the DC Parties or affecting any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until Purchased Rights before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have an adverse effect on the Closing DatePurchased Rights. (bc) The obligations obligation of Xxxxx the DC Parties to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):further conditions: (i) nStor VF shall have performed in all material respects all of its obligations and complied with all of its covenants hereunder required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor The representations and warranties of VF contained in this Agreement and in any certificate or other writing delivered by VF pursuant hereto shall have delivered to Xxxxx any be true in all material respects at and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation as of the transactions contemplated herebyClosing Date as if made at and as of such date (other than any representation and warranty that is expressly made as of a time other than the Closing Date). (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStorBuyer's obligation to consummate the transactions contemplated to be performed by this Agreement shall be it in connection with the Closing is subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx the representations and warranties set forth in Section 3 above shall be true in all respects at and as of the Closing Date; (ii) Seller shall have performed all of the obligations and complied with all of the his covenants required hereunder to be performed or to be complied with by them under this Agreement on at or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and in all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby.respects; (iii) nStor and its accountantsno action, attorneys and other representatives suit, or proceeding shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, be pending or threatened against Andatacobefore any court or quasi-judicial or administrative agency of any federal, Xxxxxstate, nStor local, or the Company foreign jurisdiction or before any suitarbitrator wherein an unfavorable injunction, action judgment, order, decree, ruling, or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit charge would (A) prevent consummation of any of the transactions contemplated by this Agreement., or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (viiv) X. Xxxxx the Agreement and General Release of All Claims dated the date hereof between Seller and the Company (as the same may be amended by the parties thereto in accordance with the terms thereof, the "AGREEMENT AND GENERAL RELEASE") shall be in full force and effect (without revocation of any part thereof), and Seller shall be in full compliance with his obligations under such Agreement and General Release; and (v) Seller shall have entered into Employment Agreement as provided for delivered certificates representing the Company Stock, duly endorsed in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateblank or with duly executed stock powers attached. (b) The obligations of Xxxxx Seller to consummate the transactions contemplated to be performed by this Agreement shall be him or it in connection with the Closing are subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):conditions: (i) nStor the representations and warranties set forth in Section 4 above shall be true in all respects at and as of the Closing Date; (ii) Buyer shall have performed all of its obligations and complied with all of its covenants required hereunder to be performed or to be complied with by it under this Agreement on at or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and in all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.respects; (iii) There no action, suit, or proceeding shall not have been instituted, be pending or threatened against Andatacobefore any court or quasi-judicial or administrative agency of any federal, Xxxxxstate, nStor local, or the Company foreign jurisdiction or before any suitarbitrator wherein an unfavorable injunction, action judgment, order, decree, ruling, or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and (iv) Buyer shall have delivered payment in full of the Purchase Price in accordance with Section 1 hereof.

Conditions to Closing. (a) nStor's obligation Conditions to the Obligations of MSG. The obligations of MSG to consummate the transactions contemplated by this Agreement shall be to occur on the Aircraft Contribution Date is subject to the fulfillment, at satisfaction (or prior to Closing, waiver by MSG) as of each the Aircraft Contribution Date of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx shall have performed all The representations and warranties of the obligations each of ITT MSG and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained ITTF made in this Agreement shall be true and correct both at in all material respects, as of the date on which this Agreement is signed and at hereof and as of the Closing Aircraft Contribution Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such time. (viii) There has not been any earlier date). ITT MSG and ITTF shall have performed or complied in all material adverse change in the business, operations respects with all obligations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated covenants required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to each of them by the Closing Aircraft Contribution Date. (ii) nStor The parties shall have delivered received all authorizations, consents, orders and approvals of all Federal, state, local or foreign governments or any court of competent jurisdiction, administrative agency or commission or other nongovernmental authority or instrumentality, domestic or foreign (a "Governmental Entity") required in order to Xxxxx consummate the transactions contemplated hereby to occur on the Aircraft Contribution Date. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in force and all approvals, consents or assignments to be obtained by nStor and necessary for have the effect of (A) preventing the consummation of the transactions contemplated herebyhereby to occur on the Aircraft Contribution Date or (B) prohibiting or materially limiting the ownership by MSG or Aircraft Sub of, or compelling MSG or Aircraft Sub to dispose of or hold separate, the Aircraft, as a result of the transactions contemplated to occur on the Aircraft Contribution Date. (iii) There shall not have been instituted, be pending or threatened against Andatacoby any Governmental Entity any action, Xxxxx, nStor or the Company any suit, action arbitration, inquiry, proceeding or other proceeding investigation (an "Action") (or by any private party other person any Action which has a reasonable likelihood of success), (A) challenging or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated hereby to occur on the Aircraft Contribution Date, (B) seeking to prohibit or materially limit the ownership by MSG or Aircraft Sub of the Aircraft, or the operation of the Aircraft as contemplated by the parties, or to compel MSG or Aircraft Sub to dispose of or hold separate the Aircraft or (C) seeking to obtain from GHC, MSGE, MSG or any of their subsidiaries or affiliates in connection with such transactions any damages that are material in relation to the value of the Aircraft, in each case as a result of the transactions contemplated hereby to occur on the Aircraft Contribution Date; provided, however, that this condition shall be deemed to be waived by MSG as to any Action (except for any Action by any Governmental Entity) if the sole potential impact of such Action would be a judgment for money damages and ITT MSG and ITTF provides to MSG and its Affiliates complete indemnification in form and substance reasonably satisfactory to MSG with respect to any such Action. (b) Conditions to the Obligations of ITTF and ITT MSG. The obligations of ITTF and ITT MSG to consummate the transactions contemplated to occur on the Aircraft Contribution Date is subject to the satisfaction (or waiver by ITTF and ITT MSG) as of the Aircraft Contribution Date of the following conditions: (i) The representations and warranties of MSG made in this Agreement shall be true and correct in all material respects, as of the date hereof and as of the Aircraft Contribution Date as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date). MSG shall have performed or complied in all material respects with all obligations and covenants required by this AgreementAgreement to be performed or complied with by it by the Aircraft Contribution Date. (ii) The parties shall have received all authorizations, consents, orders and approvals of all Governmental Entities required in order to consummate the transactions contemplated to occur on the Aircraft Contribution Date. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in force and have the effect of preventing the consummation of the transactions contemplated hereby to occur on the Aircraft Contribution Date. (iii) There shall not be pending or threatened by any Governmental Entity any Action (or by any other person any Action which has a reasonable likelihood of success), challenging or seeking to restrain or prohibit consummation of the transactions contemplated hereby to occur on the Aircraft Contribution Date or seeking to obtain from ITTF or ITT MSG or any of their respective Subsidiaries or Affiliates in connection with such transactions any damages that are material in relation to the value of the Aircraft.

Conditions to Closing. Each Purchaser’s obligation to purchase and pay for the Series [ ] Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s reasonable satisfaction, prior to or at the Closing, of the conditions set forth in Section 4 of the Note Purchase Agreement (as they may be supplemented, amended or superseded by the conditions set forth in paragraph (c) below) and to the following additional conditions: (a) nStor's obligation to consummate Except as supplemented, amended or superseded by the transactions contemplated by this representations and warranties set forth in Schedule 4, each of the representations and warranties of the Parent and the Company set forth in Section 5 of the Note Purchase Agreement shall be subject correct in all material respects (except those representations and warranties that are qualified by materiality, which will be correct in all respects) as of the date of Closing (except for such representations and warranties that relate to the fulfillmenta specific earlier date, at or prior to Closing, which shall be correct in all material respects as of such specific earlier date) and each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of Parent and the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx Company shall have delivered to nStor any and all approvalseach Purchaser an Officer’s Certificate, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after dated the date of the 1998 10-K until the Closing Datecertifying that such condition has been fulfilled. (b) The obligations of Xxxxx Contemporaneously with the Closing, the Company shall sell to consummate each Purchaser, and each Purchaser shall purchase, the transactions contemplated Series Notes to be purchased by this Agreement shall be subject such Purchaser at the Closing as specified in Schedule A. (c) [Here insert any modifications to the fulfillment, at conditions or prior additional conditions to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.]

Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by The effectiveness of this Agreement and obligation of each Lender to make the Initial Term Loans on the Closing Date shall be subject to the fulfillment, at or prior to Closing, receipt by Agent and the Lenders of each agreement, document and instrument set forth on the closing checklist attached hereto as Exhibit G, each in form and substance satisfactory to Agent and the Lenders, and the satisfaction of the following conditions precedent (any or all precedent, each to the satisfaction of which may be waived Agent and Lenders in writing, in whole or in part, by nStor):their sole discretion: (ia) Xxxxx shall have performed all the receipt by Agent and the Lenders of the obligations and complied with all executed counterparts of the covenants required to be performed or to be complied with by them under this Agreement on and the other Financing Documents; (b) the payment of all fees, expenses and other amounts due and payable under each Financing Document; (c) since December 31, 2021, the absence of any fact, event or circumstance that would reasonably be expected to result in a Material Adverse Effect; (d) receipt by Agent of a Notice of Borrowing in compliance with this Agreement; (e) receipt by the Agent and the Lenders at least 3 Business Days prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and Date all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data documentation and other information regarding Xxxxx requested by Agent or any Lender and Andataco.required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act; (ivf) nStor the fact that, immediately before and after the funding of the Initial Term Loans, no Default or Event of Default shall have received occurred and be continuing; and (g) the nStor fact that the representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects on or prior and as of the date of such borrowing, except to the Closing Date. (v) There shall not have been institutedextent that any such representation or warranty relates to an earlier date, pending in which case such representation or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and in all material respects as of such time. (viii) There has earlier date; provided, however, in each case, such materiality qualifier shall not been be applicable to any material adverse change representations and warranties that are already qualified or modified by materiality in the businesstext thereof. Each Lender, operations by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and financial conditions of Andataco from consented to and after the date of the 1998 10-K until approved, each Financing Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor7.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation of each party to consummate effect the transactions contemplated by this Agreement Contribution shall be subject to the fulfillment, fulfillment at or prior to Closing, of each the Closing of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (ia) Xxxxx No action or proceeding before a court or other governmental body by any governmental agency or public authority shall have performed all been instituted or threatened to restrain or prohibit the transactions contemplated under this Agreement or the Merger Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement, the Merger Agreement or any related agreements or the consummation of the obligations Contribution and/or Merger; and complied with all no governmental agency shall have given notice to any party hereto to the effect that consummation of the covenants transactions contemplated under this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the Contribution or Merger. (b) All consents, authorizations, orders and approvals of (or filings or registrations with) any governmental commission, board or other regulatory body or any other third party (including lenders and lessors) required in connection with the execution, delivery and performance of this Agreement shall have been obtained or made. (c) The parties shall have entered into a mutual release regarding the Interim Management Agreement dated December 7, 1998. 7.2 Further Conditions to Obligation of Dynamic and LLC to Effect the Contribution. The obligation of Dynamic and LLC to effect the Contribution shall also be subject to the fulfillment at or prior to the Closing of the following conditions: (a) ACS2 and Advanced shall each have performed its respective obligations contained in this Agreement, including but not limited to the deliveries stipulated in Section 6.14, required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx the representations and necessary for the consummation warranties of the transactions contemplated hereby. (iii) nStor ACS2 and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Advanced contained in this Agreement and in any document delivered in connection herewith shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing. (b) The obligations From the date of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to until the fulfillmentEffective Time of Contribution, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There there shall not have been institutedoccurred any material change in the financial condition, pending business, operations or threatened against Andataco, Xxxxx, nStor prospects of Advanced or the Company other ACS2 Subsidiaries that would have or would be reasonably likely to have a material adverse effect on the operation of Advanced or the other ACS2 Subsidiaries; provided, however, that for purposes of determining whether there shall have been any suitsuch material changes, action any adverse change resulting from or other proceeding by any private party relating to general industry or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementeconomic conditions shall be disregarded.

Conditions to Closing. (a) nStorWithout limiting any other conditions to Buyer's obligation obligations to consummate close set forth in this Contract, the transactions contemplated by obligations of Buyer under this Agreement shall be Contract are subject to the fulfillment, satisfaction at or prior to Closing, the time of Closing of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, part by nStorBuyer at or prior to Closing): (i) Xxxxx shall have performed all All of the obligations representations and complied with all of the covenants required to be performed or to be complied with warranties by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained Seller set forth in this Agreement Contract or any Exhibit attached hereto shall be true and correct both at the date in all material respects, as if made on which this Agreement is signed and at and as of the Closing Date as if made anew at and as Date, provided that changes to any representations or warranties regarding the Leases or the Rent Roll based on action of such time.Seller that are permitted by this Contract shall not constitute a condition of Closing; (viiiii) There has not been any Seller shall have performed, observed, and complied in all material adverse change in the business, operations respects with all covenants and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated agreements required by this Agreement shall Contract to be subject to the fulfillment, performed by Seller at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.; and (iii) There Seller shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or taken such actions under Article 4 hereof to enable the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking Title Insurer to restrain or prohibit any irrevocably and unconditionally commit to issue the Title Policy to Buyer as of the transactions contemplated Closing Date. If any condition set forth herein is not fully satisfied on or before the Closing Date, Seller may elect to attempt to satisfy any such unsatisfied condition, and if Seller so elects by this Agreementwritten notice to Buyer, Seller shall have until the date occurring ten (10) days after the Closing Date in which to satisfy such condition, and the Closing Date shall be extended for such period.

Conditions to Closing. (a) nStor's obligation The obligations of Buyer to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillment, at prior satisfaction or prior to Closing, waiver of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx RCP shall have performed all validly exercised the Drag-Along Right such that each of the obligations and complied with all of the covenants other Sellers is required to be performed or to be complied with by them under this Agreement on or prior to consummate the Closing Date.Closing, and each such other Seller shall have duly executed and delivered a Joinder Agreement; (ii) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records each Seller contained in Article IV of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty , of Xxxxx RW LSG Management contained in Article V and of RW LSG Holdings contained in Article VI of this Agreement shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at and as of such time.time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (viiiiii) There has not been Each Seller and RW LSG Management shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by any material adverse change in of them under this Agreement at or prior to the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing. (b) The obligations of Xxxxx RCP and the other Sellers and RW LSG Management to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillment, at prior satisfaction or prior to Closing, waiver of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):conditions: (i) nStor The representations and warranties of Buyer contained in Article VII of this Agreement shall be true and correct in all material respects at and as of the Closing as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (ii) Buyer shall have performed all of its obligations and complied in all material respects with all of its agreements and covenants required to be performed or to be complied with by it any of them under this Agreement on at or prior to the Closing DateClosing. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation The obligations of the Issuer and the Investor to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillmentsatisfaction (or, at or prior to Closingthe extent permitted under applicable law, waiver in writing by each of each Issuer and Investor) of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx shall have performed all The execution and delivery of the obligations Loan Agreement by the parties thereto and complied the funding of loans by the Investor thereunder of at least $50 million and the execution and delivery of definitive documentation in connection with all of the covenants required to be performed or to be complied with other transactions contemplated by them under this Agreement on or prior Exhibit A, including the amendments to the Closing Date.Company’s existing credit facilities by the Company’s existing lenders thereunder; and (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for There being no provision of applicable law that prohibits the consummation of the transactions contemplated herebyClosing. (iiib) nStor and its accountantsThe obligation of the Investor to consummate the Closing is subject to the satisfaction (or, attorneys and other representatives shall have had full and complete access during normal business hours to all officesthe extent permitted under applicable law, facilities, properties, assets, books, agreements, files and records waiver in writing by Investor) of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.the following further conditions: (ivi) nStor shall have received the nStor Financing on or prior receipt from the Issuer of (i) a duly executed Voting Trust Agreement, having the terms set forth in Exhibit B attached hereto (the “Trust Agreement”) and (ii) a duly executed Registration Rights Agreement, with the terms thereof to be agreed by the Closing Date.parties hereto (the “Registration Rights Agreement”); (vii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any representations and warranties of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for Issuer in Section 3(a) hereof. (vii) Each representation Article 2, and warranty of Xxxxx contained in this Agreement each other document delivered pursuant hereto, shall be true and correct both at in all material respects on and as of the date on which this Agreement is signed and at hereof and as of the Closing Date with the same effect as if though made anew at on and as of such timedate, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Closing Date with the same effect as though made on and as of such date or such earlier date, as applicable; (iii) the Issuer shall have performed in all material respects all of its obligations hereunder required to be performed by it prior to the Closing; (iv) the receipt from the Issuer counsel of a closing opinion reasonably satisfactory to the Investor in customary form for a primary issuance of common stock; and (v) the receipt of a certificate duly executed by an authorized officer of the Issuer certifying as to the satisfaction of the conditions set forth in Section 1.03(b)(ii) and Section 1.03(b)(iii). (viiic) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date The obligation of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx Issuer to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillmentsatisfaction (or, at or prior to Closingthe extent permitted under applicable law, of each waiver in writing by the Issuer) of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):further conditions: (i) nStor the representations and warranties of the Investor in Article 3, and in each other document delivered pursuant hereto shall have performed be true and correct in all material respects on and as of its obligations the date hereof and complied as of the Closing Date with all the same effect as though made on and as of its covenants required to be performed or to be complied with by it under this Agreement on or prior such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Closing Date.Date with the same effect as though made on and as of such date or such earlier date, as applicable; and (ii) nStor shall have delivered to Xxxxx any the receipt from the Investor of a duly executed (A) Trust Agreement and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iiiB) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Registration Rights Agreement.

Conditions to Closing. (a) nStor's The obligation of Purchaser to consummate the transactions contemplated by under this Agreement shall be is subject to the fulfillmentfulfillment or waiver by Purchaser, at or prior to Closingas of the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained Sellers in this Agreement shall be true and correct both at the date on in all respects (other than those representations qualified by materiality or Material Adverse Effect qualifiers which this Agreement is signed shall be in true and at and correct in all respects) as of the Closing Date as if though made anew at on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct, on and as of such time.earlier date) in each case except for breaches as to matters that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect; (viiiii) There has not been any material adverse change Sellers shall have performed and complied in the businessall respects with all covenants, operations obligations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated undertakings required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.; (iii) There The applicable waiting period, including any extension thereof, under the HSR Act shall not have expired or been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, earlier terminated without action or other proceeding by any private party or governmental agency, commission, bureau or body seeking taken to restrain or prohibit any prevent consummation of the transactions contemplated by this Agreement.; (iv) No judgment, order or decree shall have been rendered which has the effect of enjoining the consummation of the transactions contemplated by this Agreement and no provision of any applicable Law, code of practice or guidance, interpretation or other legally enforceable requirement of any Governmental Authority shall be in effect which prohibits, makes illegal or has the effect of enjoining the consummation of the transactions contemplated by this Agreement; and

Conditions to Closing. (a) nStor's 6.1 Conditions to the Investors' Obligations - First Closing. The obligation of each Investor to consummate purchase the transactions contemplated by this Agreement shall be Initial Shares and the Initial Warrants at the First Closing is subject to the fulfillmentfulfillment to such Investor's satisfaction, at on or prior to Closingthe First Closing Date, of each of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole or in part, by nStorsuch Investor (as to itself only): (ia) Xxxxx The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the First Closing Date, except to the extent any such representation or warranty expressly speaks as of a specific date, in which case such representation or warranty shall be true and correct as of such date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the First Closing Date, except to the extent any such representation or warranty expressly speaks as of a specific date, in which case such representation or warranty shall be true and correct in all material respects as of such specific date. The Company shall have performed in all of the material respects all obligations and complied with all of the covenants herein required to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the First Closing Date. (b) The obligations Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of Xxxxx the purchase and sale of the Initial Securities and the consummation of the other transactions contemplated by the Transaction Documents to consummate be consummated on or prior to the First Closing Date, all of which shall be in full force and effect. (c) The Company shall have executed and delivered the Registration Rights Agreement. (d) The Company shall have received confirmation from Nasdaq to the effect that the Initial Shares and the Initial Warrant Shares have been approved for inclusion in the Nasdaq Global Market upon official notice of issuance. (e) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents. (f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the First Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (d), (e) and (i) of this Section 6.1. (g) The Company shall have delivered a Certificate, executed on behalf of the Company by its Clerk, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement shall be subject and the other Transaction Documents, the calling of the Stockholders Meeting (as defined below) and the issuance of the Initial Securities, certifying the current versions of the Restated Articles of Organization and Amended and Restated Bylaws of the Company and certifying as to the fulfillment, at or prior to Closing, signatures and authority of each persons signing the Transaction Documents and related documents on behalf of the following conditions precedent Company. (any or all h) The Investors shall have received an opinion from Choate, Hall & Stewart LLP, the Company's counsel, dated as of which the Fixxx Xxosxxx Datx, xx xorm and substance reasonably acceptable to the Investors and addressing such legal matters as the Investors may be waived in writing, in whole or in part, by Xxxxx):reasonably request. (i) nStor No stop order or suspension of trading shall have performed all of its obligations and complied been imposed by Nasdaq, the SEC or any other governmental or regulatory body with all of its covenants required respect to be performed or to be complied with by it under this Agreement on or prior to public trading in the Closing DateCommon Stock. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor6.1 Conditions to the Investor's Obligations. The obligation of the Investor to consummate purchase the transactions contemplated by this Agreement shall be Note at Closing is subject to the fulfillmentfulfillment to such Investor's satisfaction, at on or prior to Closingthe Closing Date, of each of the following conditions precedent (conditions, any or all of which may be waived by the Investor: (a) The representations and warranties made by the Company in writingSection 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in whole which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in partSection 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, by nStor): (i) Xxxxx except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all of the material respects all obligations and complied with all of the covenants conditions herein required to be performed or to be complied with observed by them under this Agreement it on or prior to the Closing Date. (iib) Xxxxx The Company shall have delivered to nStor obtained any and all consents, permits, approvals, consents registrations and waivers necessary or assignments to appropriate for consummation of the purchase and sale of the Securities, and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be obtained in full force and effect. (c) No judgment, writ, order, injunction, award or decree of or by Xxxxx any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and necessary for no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated herebyhereby or in the other Transaction Documents. (iiid) nStor and its accountants, attorneys and other representatives The Company shall have had full executed and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files delivered the Convertible note and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacosupporting documentation. (ive) nStor The Company shall have received executed and delivered the nStor Financing on or prior to the Closing DateIrrevocable Transfer Agent Instructions. (vf) There No stop order or suspension of trading shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or imposed by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date public markets on which this Agreement the Company's common stock is signed and at and as of traded or quoted, the Closing Date as if made anew at and as of such time. (viii) There has not been SEC or any material adverse change other governmental or regulatory body with respect to public trading in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateCommon Stock. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's The obligation of Buyer to consummate purchase the transactions contemplated by this Agreement shall be Shares pursuant to Paragraph 1 hereof is subject to the fulfillment, at satisfaction (or prior to Closing, waiver by Buyer in writing) of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):at the Closing: (i) Xxxxx the representations and warranties of Seller made in this Agreement shall be true and correct in all respects, as of the date hereof, and at and as of the Closing as though then made. (ii) Seller shall have performed all of the obligations and or complied with all of the covenants and agreements required to be performed or to be complied with by them Seller under this Agreement on at or prior to the Closing DateClosing. (iiiii) Xxxxx shall have delivered to nStor any and Seller has obtained all consents, approvals, consents orders, authorizations of, and registrations and filings with, any Federal, state, local or assignments foreign government or any court of component jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") or NASD, that are required to be obtained or made by Xxxxx and necessary for Seller, in connection with the execution, delivery or performance of this Agreement by Seller or the consummation by Seller of any of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor no action or proceeding by or before any Governmental Entity, or any other person shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, be pending or threatened against Andataco, Xxxxx, nStor challenging or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit the purchase and sale of any of the Shares or any of the other transactions contemplated by this Agreement or seeking to obtain damages from Buyer (or any of its affiliates) in connection with the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement. (v) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, permanent injunction or other order, enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the purchase and sale of the Shares shall be in effect. (vi) X. Xxxxx Subsequent to March 31, 1998, there shall not have entered into Employment Agreement as provided for in Section 3(a) hereofbeen any development which, with respect to Seller constitutes a material adverse effect upon the business, affairs, assets, operations, properties, financial position, or results of operations of Seller. (vii) Each representation Seller shall have delivered to Buyer: (A) a certificate dated the date of the Closing (the "Closing Date") stating that the conditions set forth in Paragraph 6(a)(i) through (vi) have been satisfied; (B) a certified resolution of Seller's Board of Directors authorizing the execution, delivery and warranty performance of Xxxxx contained this Agreement and the issuance of the Shares in accordance herewith, and appointing the Buyer's initial nominees to the Board of Directors in accordance with Paragraph 7 hereof, together with certified copies of Seller's certificate of incorporation and bylaws. (C) an opinion from Seller's legal counsel dated the Closing Date, as to the matters set forth in Paragraph 3(a)(i), (iii) through (vi), (vii) (other than as to the matters set forth in clause (z) of Paragraph 3(a)(vii)) and (ix). (D) payment in full of the Legal Expenses; and (E) the delivery of such additional certificates and documents as Buyer may reasonably request. (b) The obligation of Seller to sell the Shares pursuant to Paragraph 1 hereof is subject to the satisfaction (or waiver by Seller in writing) of each of the following conditions precedent at the Closing: (i) the representations and warranties of Buyer made in this Agreement shall be true and correct both at in all respects, as of the date on which this Agreement is signed hereof, and at and as of the Closing Date as if made anew at and as of such timethough then made. (viiiii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date Buyer shall have performed or complied with all of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx covenants and agreements required to consummate the transactions contemplated be performed or complied with by Buyer under this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There Buyer shall not have delivered to Seller a certificate dated the Closing Date stating that the conditions set forth in Paragraph 6(b)(i) - (ii) have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementsatisfied.

Conditions to Closing. (a) nStor's obligation 8.1 Conditions Precedent to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment, at on or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, by Parent in whole or in part, by nStor): (a) (i) Xxxxx shall have performed all each of the obligations and complied with all Specified Representations of the covenants required to be performed or to be complied with by them under Company set forth in this Agreement on or prior to the Closing Date. that are qualified by materiality shall be true and correct, (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation each of the transactions contemplated hereby. Specified Representations of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, and (iii) nStor each of the other representations and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records warranties of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained set forth in this Agreement shall be true and correct both at in all respects (without regard to materiality, Material Adverse Effect or similar phrases in the date on which this Agreement is signed representations and at warranties), in each case of clauses (i), (ii) and (iii) as of the Closing Date as if though then made anew at (except for those representations and warranties which expressly relate to an earlier date (in which case such representations and warranties shall have been true and correct as of such time. (viii) There has not been any material adverse change earlier date)), and except, in the businesscase of clause (iii), operations where the failure of such representations and financial conditions of Andataco from warranties to be so true and after the date correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an executive officer of the 1998 10-K until Company, dated the Closing Date., to the foregoing effect; (b) The obligations of Xxxxx to consummate the transactions contemplated Company shall have performed and complied in all material respects with all covenants required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing (other than Section 7.11, the breach of which will not, in and of itself, give rise to a failure of this condition to be satisfied), and Parent shall have received a certificate signed by an executive officer of the Company, dated the Closing Date., to the foregoing effect; (c) no Law or Order shall have been enacted, issued, adopted, entered, promulgated or enforced, as applicable, and no Legal Proceeding shall be pending, that seeks damages from the Company or any of its directors or officers in respect of the Merger or events giving rise thereto or would (i) prevent the consummation of any of the Transactions or the performance of this Agreement, or the other documents contemplated hereby, on the terms contemplated hereby and thereby, (ii) nStor declare unlawful the Transactions or result in any of the Transactions being rescinded following consummation, or (iii) materially delay the consummation of the Transactions for more than sixty (60) days; (d) the waiting period or regulatory approval applicable to the Transactions under the HSR Act and the other applicable Competition Laws set forth on Schedule 8.1(d) shall have expired (or early termination shall have been granted) or been received; (e) the Company shall have delivered to Xxxxx any Parent a certificate, duly completed and all approvals, consents or assignments executed pursuant to be obtained by nStor Sections 1.897-2(h) and necessary for the consummation 1.1445-2(c) of the transactions contemplated hereby.Treasury Regulations, certifying that the shares of capital stock of the Company are not United States real property interests within the meaning of Section 897(c) of the Code; (iiif) There the Written Consent shall have been executed and received by Parent; (g) the Escrow Agent and the Representative shall have each executed and delivered signatures to the Adjustment Escrow Agreement to Parent; and (h) since the date hereof, there shall not have been institutedany event, pending change, occurrence or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementcircumstance that has had a Material Adverse Effect.

Conditions to Closing. (a) nStor's obligation The obligations of each Party to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwriting by the Party entitled to the benefit thereof, in whole or in part, to the extent permitted by nStor):the applicable law: 3.3.1 No temporary restraining order, preliminary or permanent injunction or other order (whether temporary, preliminary or permanent) issued by any court of competent jurisdiction, or other legal restraint or prohibition shall be in effect which prevents the consummation of the transactions contemplated herein, nor shall any proceeding brought by any Governmental Body seeking any of the foregoing be pending, and there shall not be any action taken, or any law, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated herein illegal. 3.3.2 The representations and warranties of the Seller, Marathon and SBA contained herein shall be true and correct in all material respects on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, except for those (i) Xxxxx representations and warranties that are qualified by materiality, which representations and warranties shall be true and correct in all respects and (ii) representations and warranties which address matters only as of a particular date, which representations and warranties shall be true and correct on and as of such particular date. 3.3.3 Each Party shall have performed or complied in all of the obligations and complied material respects with all of the agreements and covenants required by this Agreement and the Collateral Agreements ancillary hereto (collectively, the “Transaction Documents”) to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date, including for the avoidance of doubt, the payment of the First Cash Payment (as defined below). (ii) Xxxxx 3.3.4 Each Party shall have delivered received evidence, in form and substance reasonably satisfactory to nStor it, that any and all approvals, consents or assignments approvals of Governmental Bodies and other Third Parties required to be have been obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx a Party to consummate the transactions contemplated by this Agreement shall be subject to under the fulfillmentTransaction Documents, at or prior to Closingif any, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementobtained (each a “Required Approval”).

Conditions to Closing. (a) nStor6.1 Conditions to the Investor's Obligations. The obligation of the Investor to consummate purchase the transactions contemplated by this Agreement shall be Note at Closing is subject to the fulfillmentfulfillment to such Investor's satisfaction, at on or prior to Closingthe Closing Date, of each of the following conditions precedent (conditions, any or all of which may be waived by the Investor: (a) The representations and warranties made by the Company in writingSection 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in whole which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in partSection 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, by nStor): (i) Xxxxx except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all of the material respects all obligations and complied with all of the covenants conditions herein required to be performed or to be complied with observed by them under this Agreement it on or prior to the Closing Date. (iib) Xxxxx The Company shall have delivered to nStor obtained any and all consents, permits, approvals, consents registrations and waivers necessary or assignments to appropriate for consummation of the purchase and sale of the Securities, and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be obtained in full force and effect. (c) No judgment, writ, order, injunction, award or decree of or by Xxxxx any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and necessary for no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated herebyhereby or in the other Transaction Documents. (iiid) nStor and its accountants, attorneys and other representatives The Company shall have had full executed and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files delivered the Convertible Note and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacosupporting documentation. (ive) nStor The Company shall have received executed and delivered the nStor Financing on or prior to the Closing DateIrrevocable Transfer Agent Instructions. (vf) There No stop order or suspension of trading shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or imposed by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date public markets on which this Agreement the Company's common stock is signed and at and as of traded or quoted, the Closing Date as if made anew at and as of such time. (viii) There has not been SEC or any material adverse change other governmental or regulatory body with respect to public trading in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateCommon Stock. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. 8.01 Conditions to the Parent’s and the Merger Sub’s Obligations. The obligations of the Parent and the Merger Sub to (aand to cause the Securities Buyers to) nStor's obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillmentsatisfaction (or, at or prior to Closingif permitted by applicable Law, of each waiver by the Parent and the Merger Sub in writing) of the following conditions precedent as of the Closing Date: (any or all of which may be waived in writing, in whole or in part, by nStor): a) (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the The Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement Fundamental Representations shall be true and correct both at in all respects, except for de minimis inaccuracies, and with respect to the date representations and warranties set forth in Section 4.05(a) or Section 4.05(b), to the extent set forth on which this Agreement is signed the Estimated Closing Statement and included in the determinations of Per Share Closing Merger Consideration and Per Share Additional Merger Consideration and not resulting in additional costs, expenses or liabilities of the Parent and Merger Sub that are not de minimis, at and as of the Closing Date as if though made anew at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such time. date), (viiiii) There the representations and warranties contained in Section 4.07(b) shall be true and correct in all respects at and as of the Closing Date as though made at and as of the Closing Date and (iii) all other representations and warranties of the Company contained in Article IV of this Agreement shall be true and correct (without regard and without giving effect to any qualifiers or exceptions as to “materiality,” “Material Adverse Effect,” or other similar qualifications contained in or applicable to such representations and warranties, other than the term “Company Material Contract” or the term “Material Government Contract”) at and as of the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (giving effect to the applicable exceptions set forth in the Disclosure Schedules but without regard and without giving effect to any qualifiers or exceptions as to “materiality,” “Material Adverse Effect,” or other similar qualifications contained in or applicable to such representations and warranties, other than the term “Company Material Contract” or the term “Material Government Contract”) has not been any material adverse change had, and would not reasonably be expected to have, individually or in the businessaggregate, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.a Material Adverse Effect; (b) The obligations Company shall have performed and complied with in all material respects all of Xxxxx the covenants and agreements required to consummate be performed by it under this Agreement at or prior to the Securities Purchase Closing; (c) The Merger shall have been approved, and this Agreement shall have been adopted, by the written consent the stockholders of the Company holding at least ninety percent (90%) of the issued and outstanding shares of Common Stock in accordance with the DGCL and the Organizational Documents (the “Stockholder Approval”); (d) The applicable waiting periods, if any, under the HSR Act with respect to the transactions contemplated hereby shall have expired or been terminated; (e) the BlueCielo RUS Carveout shall have been consummated; (f) No judgment, decree or order from any Governmental Entity shall have been entered which would prevent the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded; (g) The Company shall be subject have delivered to the fulfillment, at or prior to Closing, of Parent each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):following: (i) nStor shall have performed all a certificate of its obligations and complied with all the Chief Executive Officer or Chief Financial Officer of its covenants required to be performed the Company in his or to be complied with by it under this Agreement on or prior to her capacity as such, dated as of the Closing Date., stating that the conditions specified in Sections 8.01(a) and 8.01(b) have been satisfied; (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained certified copies of resolutions approved by nStor and necessary for the consummation stockholders of the transactions contemplated hereby.Company evidencing the Stockholder Approval, substantially in the form attached hereto in Exhibit M (the “Written Consent”); (iii) There evidence reasonably satisfactory to the Parent that the portion of the Restructuring described in Section 6.04(a) has been completed in accordance with this Agreement; (iv) to the extent completed prior to the Securities Purchase Closing, evidence reasonably satisfactory to the Parent of completion of any portion of the Restructuring described in Section 6.04(b) (it being agreed that no such step is a condition to the Securities Purchase Closing or Merger Closing); and (v) a duly executed certificate, in form and substance as prescribed by Treasury Regulations promulgated under Code Section 1445, stating that the Company is not, and has not been, during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code; (h) The Escrow Agreement shall not have been institutedexecuted and delivered by the parties thereto (other than the Parent); (i) The Paying Agent Agreement shall have been executed and delivered by the parties thereto (other than the Parent); and (j) With respect to all Indebtedness of the type referred to in clause (a) of the definition of Indebtedness, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of shall have received and provided Parent with the transactions contemplated by this AgreementPayoff Letters.

Conditions to Closing. Section 6.01. Conditions in connection with the First Closing. (a) nStor's obligation Condition to Obligations of Each Party. The obligations of each Party to consummate the transactions contemplated by this Agreement Transactions shall be subject to the fulfillmentsatisfaction or waiver (where permissible), at or prior to the First Closing, of the following condition: No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law which is then in effect (whether temporary, preliminary or permanent) and has the effect of enjoining, restraining, prohibiting or otherwise making the consummation of the Transactions illegal (an “Injunction”). (b) Conditions to Obligations of the Company. The obligations of the Company to consummate sale and purchase of First Closing Purchased Shares shall be subject to the satisfaction or waiver (where permissible), at or prior to the First Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx The representations and warranties of Investor I contained in ‎Article IV of this Agreement (i) that are qualified by materiality shall be true and correct in all respects, and (ii) that are not qualified by materiality, shall be true and correct in material respects, in each case of (i) and (ii), as of the date of this Agreement and as of the First Closing (except for representations and warranties that expressly speak as of a specified date, in which case as of such specified date). (ii) Investor I shall have performed all of the obligations and complied in all material respects with all of the agreements, covenants and conditions contained in this Agreement that are required to be performed or to be complied with by them under this Agreement on at or prior to the Closing DateFirst Closing. (iic) Xxxxx shall have delivered Conditions to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation Obligations of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) Investor I. The obligations of Xxxxx Investor I to consummate the transactions contemplated by this Agreement sale and purchase of First Closing Purchased Shares shall be subject to the fulfillmentsatisfaction or waiver (where permissible), at or prior to the First Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):conditions: (i) nStor The representations and warranties of the Company contained in ‎Article III (i) that are qualified by materiality or Material Adverse Effect, shall be true and correct in all respects, and (ii) that are not qualified by materiality or Material Adverse Effect, shall be true and correct in material respects, in each case of (i) and (ii), as of the date of this Agreement and as of the First Closing (except for representations and warranties that expressly speak as of a specified date, in which case as of such specified date). (ii) The Company shall have performed all of its obligations and complied in all material respects with all of its agreements, covenants and conditions contained in this Agreement that are required to be performed or to be complied with by it under this Agreement on at or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyFirst Closing. (iii) No stop order or suspension of trading shall have been imposed by NASDAQ, the SEC or any other Governmental Authority with respect to public trading in the Shares. Section 6.02. Conditions in connection with the Second Closing. (a) Condition to Obligations of Each Party. The obligations of each Party to consummate the Transactions shall be subject to the satisfaction or waiver (where permissible), at or prior to the Second Closing, of the following condition: There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company be any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementInjunction.

Conditions to Closing. (a) nStor's The obligation of Purchaser to consummate effect the transactions contemplated by this Agreement shall be Transfer Closing is subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx Seller shall have performed in all material respects all of the its obligations and complied with all of the covenants under this Agreement required to be performed by it at or to be complied with by them under this Agreement on or prior to before the Closing Date.Transfer Closing; (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Seller contained in this Agreement shall be true and correct both at in all material respects (except for the date on representations set forth in Section 2(b)(i), Section 2(b)(iii), Section 2(b)(v) and Section 2(b)(vi), which this Agreement is signed shall be true and at and correct in all respects) as of the Closing Date time of the Transfer Closing, as if made anew at and as of such time.; and (viiiiii) There has not been any material adverse change in the businessNo law, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated statute, ordinance, rule, regulation, code, order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by this Agreement a government entity shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of effect prohibiting the transactions contemplated hereby. (b) The obligation of Seller to effect the Transfer Closing is subject to the satisfaction or waiver of the following conditions: (i) Purchaser shall have performed in all material respects all of its obligations under this Agreement required to be performed by it at or before the Transfer Closing; (ii) Each representation and warranty of Purchaser contained in this Agreement shall be true and correct in all material respects (except for the representations set forth in Section 2(a)(i), Section 2(a)(iii), Section 2(a)(iv), 2(a)(v) and Section 2(a)(vi), which shall be true and correct in all respects) as of the time of the Transfer Closing, as if made at and as of such time; and (iii) There No law, statute, ordinance, rule, regulation, code, order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a government entity shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of be in effect prohibiting the transactions contemplated by this Agreementhereby.

Conditions to Closing. (a) nStor's obligation The obligations of each Party to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwriting by the Party entitled to the benefit thereof, in whole or in part, to the extent permitted by nStor):the applicable law: 3.3.1. Marathon shall have consummated a public or private offering of its securities (the “Offering”), wherein Marathon shall have received gross proceeds of at least eight million US dollars ($8,000,000) (the “Financing Condition Precedent”). 3.3.2. No temporary restraining order, preliminary or permanent injunction or other order (whether temporary, preliminary or permanent) issued by any court of competent jurisdiction, or other legal restraint or prohibition shall be in effect which prevents the consummation of the transactions contemplated herein, nor shall any proceeding brought by any Governmental Body seeking any of the foregoing be pending, and there shall not be any action taken, or any law, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated herein illegal. 3.3.3. The representations and warranties of the Sellers, the Company, the Purchaser and Marathon contained herein shall be true and correct in all material respects on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, except for those (i) Xxxxx representations and warranties that are qualified by materiality, which representations and warranties shall be true and correct in all respects and (ii) representations and warranties which address matters only as of a particular date, which representations and warranties shall be true and correct on and as of such particular date. Notwithstanding the foregoing, to the extent that there is any material change to the representations and/or warranties of any of the Parties between the Effective Date and the date set for the Closing, such Party shall bring down its representations and warranties as of immediately prior to the date set for Closing (as applicable, the “Bring Down Schedule”) and without derogating from the foregoing, Marathon shall in any event, update its cap table, attached as Schedule 7.3. It is hereby acknowledged and agreed between the Parties that (i) the Sellers can terminate this Agreement and not proceed with Closing, to the extent that the information contained in any of Purchaser or Marathon’s Bring Down Schedules is materially different than the representations and warranties of the Purchaser or Marathon as of the Effective Date or the information in Marathon’s “bring down” cap table is materially different than as of the Effective Date; and (ii) the Purchaser and Marathon can jointly terminate this Agreement and not proceed with Closing, to the extent that the information contained in any of the Sellers’ or the Company’s Bring Down Schedules is materially different than the representations and warranties of the Sellers or the Company as of the Effective Date. 3.3.4. Each Party shall have performed or complied in all of the obligations and complied material respects with all of the agreements and covenants required by this Agreement and the Collateral Agreements ancillary hereto (collectively, the “Transaction Documents”) to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date. (ii) Xxxxx 3.3.5. Each Party shall have delivered received evidence, in form and substance reasonably satisfactory to nStor it, that any and all approvals, consents approvals of Governmental Bodies and other Third Parties described in this Agreement or assignments otherwise not described but required to be have been obtained by Xxxxx and necessary for the consummation of a Party to consummate the transactions contemplated herebyunder the Transaction Documents have been obtained (each a “Required Approval”). (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior 3.3.6. Prior to the Closing Date. (v) There , there shall not have been institutedoccurred any event or occurrence and no circumstance shall exist which, pending alone or threatened against Andatacotogether with any one or more other events, Xxxxxoccurrences or circumstances has had, nStor is having or could reasonably be expected to result in a material adverse effect on the Company, Marathon or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser. (vi) X. Xxxxx 3.3.7. The Financing Condition Precedent shall have entered into Employment Agreement as provided for occurred prior to the lapse of forty five (45) calendar days following the Effective Date. In the event the Financing Condition Precedent shall not have occurred prior to the lapse of such forty five (45) calendar day period, absent an extension agreed to by the Parties in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in writing, this Agreement shall terminate and be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timeno further force or effect. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor2.01 Conditions to the Purchaser's obligation and Parent's Obligations. The obligations of the Purchaser and Parent to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at satisfaction (or prior to Closing, of each waiver by the Purchaser in writing) of the following conditions precedent as of the Closing Date: (any or all of which may be waived in writing, in whole or in part, by nStor): a) (i) Xxxxx The representations and warranties in Article III (other than the representations and warranties in Section 3.04) and Article IIIA (other than the representations and warranties in Section 3A.03) shall be true and correct in all material respects at and as of the date of this Agreement and the Closing, in each case as though then made and without giving effect to any qualifications as to materiality or Company Material Adverse Effect (or any correlative terms or qualifiers), except for representations and warranties that speak only as of a specific date or time, which shall be true and correct in all material respects as of such date and time without giving effect to any qualifications as to materiality or Company Material Adverse Effect (or any correlative terms or qualifiers), and (ii) the representations and warranties in Section 3.04 and Section 3A.03 shall be true and correct in all respects at and as of the date of this Agreement and the Closing, in each case as though then made, except for representations and warranties that speak only as of a specific date or time, which shall be true and correct in all respects as of such date and time; (b) the Sellers and the Company shall have performed in all of the obligations and complied with all of material respects the covenants and agreements required to be performed or to be complied with by them under this Agreement on at or prior to the Closing Date.Closing; (iic) Xxxxx the applicable waiting periods under the HSR Act shall have delivered to nStor expired or been terminated; (d) there shall not have been a Company Material Adverse Effect since the date of this Agreement; (e) no Claim shall be pending by or before any and all approvalsGovernmental Authority of competent jurisdiction wherein an unfavorable injunction, consents decision, ruling, judgment, decree or assignments to be obtained by Xxxxx and necessary for order would prohibit the performance of this Agreement or the consummation of any of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded following consummation; (f) the Escrow Agent and the Sellers Representative shall be subject have each executed and delivered signatures to the fulfillment, at or prior Escrow Agreement to Closing, of each the Purchaser; (g) the Company shall have delivered to the Purchaser a certificate signed by an authorized officer of the following conditions precedent Company in the form set forth on Exhibit A-1, dated as of the Closing Date, stating that the preconditions specified in subsections (any or all a) and (b) above, solely as they relate to the Company, have been satisfied; (h) each Seller shall have delivered to Purchaser a certificate signed by such Seller (or, if an entity, an authorized officer of which may be waived such Seller) in writingthe form set forth on Exhibit A-2 dated as of the Closing Date, stating that the preconditions specified in whole or in partsubsections (a) and (b) above, by Xxxxx):solely as they relate to such Seller, have been satisfied; (i) nStor the Company shall have performed all delivered to the Purchaser a certificate, substantially in the form of its obligations Exhibit F attached hereto, duly completed pursuant to Section 1.1445-11T(d) of the Treasury Regulations, certifying that (i) fifty percent (50%) or more of the value of the gross assets of the Company does not consist of "United States real property interests" within the meaning of Section 897 of the Code or (ii) ninety percent (90%) or more of the value of the gross assets of the Company does not consist of "United States real property interests" within the meaning of Section 897 of the Code and complied with all "cash or cash equivalents" within the meaning of its covenants required Treasury Regulations Section 1.1445-11T(d)(1); (j) the Company shall have delivered to be performed or to be complied with by it under this Agreement on or the Purchaser, no later than five (5) Business Days prior to the Closing Date. , (i) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2015 and December 31, 2014, and (ii) nStor audited statements of income, cash flows and changes in members' equity of the Company and its consolidated Subsidiaries for the years ended December 31, 2015 and December 31, 2014, in each case, reported on by BKD LLP (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements have been prepared in accordance with GAAP, consistently applied throughout the periods indicated, and present fairly in all material respects the consolidated financial condition and results of operations, in each case, of the applicable company and its Subsidiaries (taken as a whole) as of the dates and for the periods referred to therein; (k) the Company shall have delivered to Xxxxx any the Purchaser, in form satisfying the requirements of PCAOB AU Section 722, Interim Financial Information (SAS 100), no later than five (5) Business Days prior to the Closing Date, (i) unaudited consolidated balance sheets of the Company and all approvalsits consolidated Subsidiaries as of June 30, consents or assignments 2016, and (ii) unaudited consolidated statements of income, cash flows, and changes in members' equity for each of the six (6)-month periods ended June 30, 2016 and June 30, 2015, together with the related notes thereto; and (l) the Company shall have obtained and delivered to be obtained by nStor and necessary Purchaser (i) a written consent for the consummation assignment of each of the Leased Real Property leases requiring such consent as a matter of law as a result of the change of control of the tenant thereunder in connection with the transactions contemplated hereby. that are the subject of this Agreement, and if requested by Purchaser's lender, if any, a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under such Leased Real Property lease (the "Lease Consents") in form and substance reasonably satisfactory to Purchaser and Purchaser's lender, if any; (ii) an estoppel certificate with respect to each of the Leased Real Property leases, dated no more than thirty (30) days prior to the Closing Date, from the other party to such Leased Real Property lease, in form and substance reasonably satisfactory to Purchaser (the "Estoppel Certificates") and (iii) There a non-disturbance agreement with respect to each of the Leased Real Property leases in form and substance satisfactory to Purchaser from each lender encumbering any real property underlying the Leased Real Property for such Leased Real Property lease (the "Non-Disturbance Agreements"). If the Closing occurs, all closing conditions set forth in this Section 2.01 which have not been fully satisfied as of the Closing shall not be deemed to have been instituted, pending or threatened against Andataco, Xxxxx, nStor or waived by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser.

Conditions to Closing. (a) nStor's obligation The obligations of Buyer and/or the Company to consummate the transactions contemplated by this Agreement Transactions shall be contingent upon and subject to the fulfillment, at satisfaction or prior to Closing, of each waiver by Buyer (where permissible) of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Seller contained in this Agreement shall be true and correct both at in all material respects as of the date Closing, as though made on which this Agreement is signed and at and as of the Closing Date Closing, except to the extent expressly made as if made anew at and of an earlier date, in which case as of such timeearlier date. (viiiii) There has not Seller shall have performed or complied in all respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing. (iii) All consents from third parties under any agreement, contract, license, lease or other instrument to which Seller is a party or by which it is bound required as a result of the Transactions shall have been any material adverse change in the businessobtained from such third parties. (iv) Seller shall have delivered to Buyer a certificate, operations and financial conditions of Andataco from and after dated the date of the 1998 10-K until Closing, signed by the duly authorized officer of Seller, certifying to Buyer and the Company as to the satisfaction of the conditions specified in Sections 2(a)(i) through 2(a)(iii) hereof (the “Seller Closing DateCertificate”). (b) The obligations of Xxxxx Seller to consummate the transactions contemplated Transactions shall be contingent upon and subject to the satisfaction or waiver by Seller (where permissible) of the following conditions: (i) The representations and warranties of Buyer contained in this Agreement shall be subject true and correct in all material respects as of the Closing, as though made on and as of the Closing, except to the fulfillment, at or prior to Closing, extent expressly made as of each of the following conditions precedent (any or all of which may be waived in writingan earlier date, in whole or in part, by Xxxxx):which case as of such earlier date. (iii) nStor Buyer shall have performed or complied in all of its obligations and complied respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyClosing. (iii) There shall not have been institutedAll consents from third parties under any agreement, pending contract, license, lease or threatened against Andataco, Xxxxx, nStor other instrument to which Buyer or the Company any suit, action or other proceeding by any private is a party or governmental agency, commission, bureau or body seeking to restrain or prohibit any by which it is bound required as a result of the transactions contemplated Transactions shall have been obtained from such third parties. (iv) Buyer shall have delivered to Seller a certificate, dated the date of the Closing, signed by this Agreementthe duly authorized officer of Buyer, certifying to Seller as to the satisfaction of the conditions specified in Sections 2(b)(i) through 2(b)(iii) hereof (the “Buyer Closing Certificate”).

Conditions to Closing. (a) nStor's obligation The respective obligations of each party to consummate effect the transactions contemplated by this Agreement contribution of the Contributed Assets and the issuance of the Shares (together, the "Transactions") shall be subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions: (i) the Merger Closing shall have occurred; (ii) Xxxxx no statute, rule, regulation, executive order, decree, ruling or injunction shall have delivered to nStor been enacted, entered, promulgated or enforced by any and all approvalsUnited States federal or state court or United States federal or state Governmental Entity that prohibits, consents restrains, enjoins or assignments to be obtained by Xxxxx and necessary for restricts the consummation of the transactions contemplated hereby.Transactions; (iii) nStor the transactions contemplated by the Assignment and its accountantsAssumption Agreement and Release, attorneys and other representatives substantially in the form of Exhibit F hereto (the "Assignment Agreement"), shall have had full and complete access during normal business hours been consummated, provided that the Company shall not be permitted to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.not close under this Section 6(a)(iii) if such transactions were not consummated due to a breach by it under the Assignment Agreement; (iv) nStor any governmental or regulatory notices, approvals or other requirements necessary to consummate the Transactions shall have received been given, obtained or complied with, as applicable; (v) the nStor Financing on other party shall have executed and delivered each of the Transfer Documents and Registration Rights Agreement; and (vi) the waiting periods (and any extension thereof) applicable to the Transactions under the HSR Act shall have expired or been terminated. (b) The obligation of the Company to effect the Transactions is subject to the satisfaction at or prior to the Closing Date.of the following conditions: (vi) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any representations and warranties of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx NBAMV contained in this Agreement shall be true and correct both at (except to the date extent that the aggregate of all breaches thereof would not reasonably be expected to have a Material Adverse Effect on which this Agreement is signed and the Contributed Assets) at and as of the Closing Date with the same effect as if made anew at and as of the Closing (except to the extent such timerepresentations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and, at the Closing, NBAMV shall have delivered to the Company a certificate to that effect, executed by an authorized person of NBAMV; and (ii) each of the covenants and obligations of NBAMV to be performed at or before the Closing pursuant to the terms of this Agreement shall have been duly performed (except to the extent the aggregate of all breaches thereof would not reasonably be expected to have a Material Adverse Effect on the Contributed Assets) at or before the Closing and, at the Closing, NBAMV shall have delivered to the Company a certificate to that effect, executed by an authorized person of NBAMV. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bc) The obligations of Xxxxx NBAMV to consummate effect the transactions contemplated by this Agreement shall be Transactions are subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.of the following conditions: (iii) nStor NBAMV shall have delivered received the requisite consent of its members to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.; (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct (except to the extent that the aggregate of all breaches thereof would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company or the Subsidiaries) at and as of the Closing with the same effect as if made at and as of the Closing (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and, at the Closing, the Company shall have delivered to NBAMV a certificate to that effect, executed by a duly authorized executive officer of the Company; (iii) each of the covenants and obligations of the Company to be performed at or before the Closing pursuant to the terms of this Agreement shall have been duly performed (except to the extent the aggregate of all breaches thereof would not reasonably be expected to have a Material Adverse Effect on the Company) at or before the Closing and, at the Closing, the Company shall have delivered to NBAMV a certificate to that effect, executed by a duly authorized executive officer of the Company; (iv) since the date hereof, there shall have been no events, changes or effects, individually or in the aggregate, with respect to the Company or the Subsidiaries that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company or the Subsidiaries; (v) nothing shall have occurred that would result in Intel, NBAMV and the stockholders of Excalibur (determined immediately prior to the consummation of the transactions contemplated by the Merger Agreement), in the aggregate, not owning "control" (as defined in Section 368(c) of the Code) of the Company immediately following the consummation of the transactions contemplated by the Merger Agreement and the Contribution Agreement; (vi) the Company shall have delivered a certificate, executed by a duly authorized executive officer of the Company, stating as of the Closing (A) the number of Shares of issued and outstanding Common Equity, which certificate shall specifically state the number of issued and outstanding shares of Class A Common Stock and Class B Common Stock, and the number of shares of Class A Common Stock issuable upon exercise of the Assumed Options and upon conversation of the Preferred Stock, and (B) whether any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares has occurred since the date hereof; (vii) NBAMV shall be reasonably satisfied that (A) all of the conditions to the Merger Closing have been satisfied or waived and, at the Closing, the Company shall have provided to NBAMV a certificate to that effect, executed by a duly authorized executive officer of the Company and (B) the waiver of any such condition has not resulted in the transactions contemplated by the Merger Agreement being materially modified; and (viii) the Certificate of Incorporation and Bylaws of the Company shall be in the form attached hereto as Exhibit D.

Conditions to Closing. (a) nStor's obligation to consummate The several obligations of the transactions contemplated by Initial Purchasers under this Agreement shall to purchase the Firm Offered Securities will be subject to the fulfillmentaccuracy of the representations and warranties on the part of the Company herein, at or to the performance and observance by the Company in all material respects of all covenants and agreements herein contained on its part to be performed and observed and the following conditions: (a) Subsequent to the date of this Agreement and prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):Closing Date, (i) Xxxxx there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Preliminary Memorandum that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Final Memorandum. (b) You shall have performed all received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the obligations Company, to the effect set forth in clause (a)(i) and (a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the covenants required agreements and satisfied all of the conditions on its part to be performed or to be complied with by them under this Agreement satisfied on or prior to before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (iic) Xxxxx You shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary received on the Closing Date an opinion of independent counsel for the consummation Company, an opinion for each of the transactions contemplated herebyMaterial Subsidiaries (as defined in Exhibit C hereto) from the applicable special foreign counsel qualified to give such opinion, and an opinion of special New York counsel to the Company, each dated the Closing Date, to the effect set forth in EXHIBIT B, EXHIBIT C, and EXHIBIT D, respectively. (iiid) nStor and its accountants, attorneys and other representatives You shall have had full received on the Closing Date opinions of Venture Law Group, A Professional Corporation, counsel for the Initial Purchasers, and complete access during normal business hours an opinion of special New York counsel to all officesthe Initial Purchasers, facilitiesdated the Closing Date, propertiesto the effect set forth in EXHIBIT E and EXHIBIT F, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacorespectively. (ive) nStor You shall have received, on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum. (f) You shall have received written waivers in form satisfactory to your counsel of all rights, if any, to have securities registered as part of the nStor Financing on or prior registrations required to be effected by the Company pursuant to the Closing Date.Registration Rights Agreement (vg) There The Registration Rights Agreement and the Indenture shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding executed and delivered by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any all of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement parties thereto. The Initial Purchasers' obligation to purchase Additional Offered Securities hereunder is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior delivery to Closing, you on the Option Closing Date of each such documents as you may reasonably request with respect to the good standing of the following conditions precedent (any or all Company, the due authorization and issuance of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations the Additional Offered Securities and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior other matters related to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation issuance of the transactions contemplated herebyAdditional Offered Securities. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor5.1 Conditions to the Purchasers' and the Company's obligation Obligations. The obligations of a Purchaser to consummate purchase and of the transactions contemplated by this Agreement shall be Company to issue and sell the Shares are subject to the fulfillment, at on or prior to the Closing, of each all of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole or in part, part by nStor):mutual agreement of such Purchaser and the Company: (ia) Xxxxx The Company shall have performed obtained all consents, permits and waivers necessary or appropriate on the part of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary Company for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement, the Rights Agreement, the Voting Agreement and the Co-Sale Agreement at such Closing. Except for the notices required to be filed after such Closing with certain federal and state securities commissions, which notices the Company will file on a timely basis, the Company shall have obtained all approvals of any federal or state governmental authority or regulatory body that are required on the part of the Company in connection with the lawful sale and issuance of the Shares and the Common Stock issuable upon conversion of the Shares at such Closing. (vib) X. Xxxxx At such Closing, the purchase of the Shares by the Purchasers hereunder shall be legally permitted by all laws and regulations to which the Purchasers or the Company is subject. (c) The Restated Certificate shall have been filed with and accepted by the Secretary of State of the State of Delaware. (d) The Company and the Purchasers shall have entered into Employment the Rights Agreement, the Voting Agreement as provided for and the Co-Sale Agreement. 5.2 Additional Conditions to the Purchasers' Obligations. In addition to the conditions set forth in Section 3(a) 51 hereof., each Purchaser's obligation to purchase the Shares is subject to the fulfillment, on or prior to the Closing, of all of the following conditions (except as otherwise provided below), any of which may be waived in whole or in part by such Purchaser: (viia) Each representation The representations and warranty of Xxxxx contained warranties made by the Company in this Agreement Section 3 hereof shall be true and correct both at when made, and shall be true and correct as of the date Closing with the same force and effect as if they had been made on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timeClosing. (viiib) There The Company shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing. (c) Effective upon the Closing, the Board of Directors shall consist of five (5) directors. (d) The Purchasers shall have received from Xxxx Xxxx Xxxx & Freidenrich LLP, counsel to the Company, an opinion letter addressed to them, dated such Closing Date and in substantially the form attached hereto as Exhibit F. (e) The Voting Agreement, the Co-Sale Agreement and the Rights Agreement shall have been executed by the parties thereto (other than the Purchasers). (f) The Company shall have delivered to the Purchasers a certificate, executed by the Chief Financial Officer of the Company and dated the Closing Date, certifying to the fulfillment of the conditions specified in Sections 5.1((a)), 5.2((a)), 5.2((b)) and 5.2((c)) and that there has not been any material no materially adverse change in the business, operations and financial conditions of Andataco from and after the date affairs, prospects, operations, properties, assets or condition of the 1998 10-K until the Closing DateCompany since October 31, 1998. (bg) The obligations of Xxxxx to consummate All corporate and other proceedings in connection with the transactions contemplated by this Agreement at the Closing and all documents incident thereto shall be subject reasonably satisfactory in form and substance to each Purchaser and to the fulfillmentPurchasers' special counsel, at and they shall each have received all such counterpart originals and certified or prior to Closing, other copies of each of such documents as they may reasonably request. Such documents shall include (but not be limited to) the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):following: (i) nStor shall have performed all A copy of its obligations the Restated Certificate and complied with all the Bylaws of its covenants required to be performed the Company (as amended through the date of such Closing), certified by the Secretary or to be complied with by it under this Agreement on or prior to the Closing DateAssistant Secretary of the Company as true and correct copies thereof as of such Closing. (ii) nStor shall have delivered A certificate of the Secretary or an Assistant Secretary or other officer of the Company certifying the names of the officers of the Company authorized to Xxxxx any sign this Agreement, the Rights Agreement, the Co-Sale Agreement and all approvalsthe Voting Agreement, consents the certificates for the Shares and the other documents, instruments or assignments certificates to be obtained delivered pursuant to this Agreement by nStor and necessary the Company or any of its officers, together with the true signatures of such officers. (iii) A copy of the resolutions of the Board of Directors and, if required, the stockholders of the Company evidencing the amendment to the Company's Certificate of Incorporation providing for the consummation authorization of the transactions Shares, the approval of this Agreement, the Rights Agreement, the Voting Agreement, the Co-Sale Agreement and the issuance of the Shares and the Common Stock issuable upon conversion of the Shares and the other matters contemplated hereby. (iiiiv) There Good standing certificates issued by the Delaware Secretary of State and the California Secretary of State dated within ten (10) days of the Closing. (h) The Company shall not have been institutedexecuted and delivered to each Purchaser that is a licensed Small Business Investment Company (an "SBIC Investor") a Size Status Declaration on SBA form 480 and an Assurance of Compliance on SBA form 652, pending or threatened against Andatacoand shall have provided to each such Purchaser information necessary for the preparation of a Portfolio financing Report on SBA form 1031. (i) The Company shall have executed and delivered to Xxxxxx Brothers Venture Capital I, XxxxxL.P., nStor or and the other Purchasers affiliated therewith (collectively, "Xxxxxx Brothers"), a side agreement in form and substance reasonably acceptable to counsel to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking and counsel to restrain or prohibit any the Purchasers granting board observer rights to Xxxxxx Brothers. (j) The Purchasers shall purchase an aggregate of at least 6,329,114 shares of Preferred at the transactions contemplated by this AgreementClosing.

Conditions to Closing. (a) nStorThe obligations of the Sellers, on the one hand, and the Buyer, on the other hand, to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions: (i) there shall not be in effect any preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States or by any United States federal or state governmental or regulatory body nor any statute, rule, regulation or executive order promulgated or enacted by any United States federal or state governmental authority which restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement or any other agreement or document contemplated hereby; and (ii) any filings required to be made under the HSR Act shall have been made, and all applicable waiting periods thereunder with respect to the transactions contemplated by this Agreement shall have expired or been terminated. (b) Each Seller's obligations to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by such Seller): (i) each of the representations of the Buyer under this Agreement and each of the other agreements and documents contemplated hereby shall be true and correct in all material respects at and as of the time of the Closing with the same effect as though such representations had been made again at and as of that time, except to the extent that any such representations expressly relate to an earlier date in which case any such representations shall be true and correct in all material respects at and as of such earlier date; (ii) the Buyer shall have performed and complied with each obligation, covenant and condition required by this Agreement and the other documents contemplated hereby to be performed or complied with by it prior to or at the Closing, with such exceptions as could not reasonably be expected to result in a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement or any other agreement or document contemplated hereby provided, however, that nothing in this subparagraph shall affect Sellers' rights under Section 4.2 in the event of a default thereunder; (iii) the Capital Expenditures Committees of Tricon Global Restaurants, Inc., and PHI will have approved the transactions contemplated by this Agreement; (iv) the Sellers will have received a copy of a resolution or unanimous written consent evidencing the action by the Buyer's Board of Directors or the Buyer's general partner or such other similar authorizing body approving the purchase of the Assets under this Agreement certified by an authorized officer, partner or member; and (v) the Buyer will deliver to Sellers a statement, signed by the Buyer's Chief Financial Officer, certifying that at least 20% of the Purchase Price paid to Sellers and PHI at Closing will be represented by "at risk capital" as defined by applicable accounting rules. (vi) the Sellers shall have received evidence satisfactory in all respects to them that the Buyer shall have hired an operator to manage the Restaurants to be purchased by the Buyer, which operator has substantial experience in the operation of Pizza Hut restaurants and has been approved by PHI, in its sole discretion; and (vii) the Buyer shall deliver to Sellers and PHI, and the Sellers and PHI shall have received from the Buyer and its Affiliates, as the Sellers and PHI deem necessary, in their sole discretion, all Uniform Franchise Offering Circular receipts, including those relating to any Addenda or Amendments. (c) The Buyer's obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, writing by nStorthe Buyer): (i) Xxxxx shall have performed all each of the obligations and complied with all representations of the covenants required to be performed or to be complied with by them each Seller under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation each of the transactions other agreements and documents contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement hereby shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the time of the Closing Date with the same effect as if though such representations had been made anew again at and as of that time, except to the extent that any such representations expressly relate to an earlier date in which case any such representations shall be true and correct in all material respects at and as of such time.earlier date; (viiiii) There has not been any material adverse change in the businesseach Seller shall have performed and complied with each obligation, operations covenant and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated condition required by this Agreement shall be subject to and the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required other documents contemplated hereby to be performed or to be complied with by it prior to or at the Closing, with such exceptions as could not reasonably be expected to result in a material adverse effect on the ability of the Sellers to perform their obligations under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents other agreement or assignments to be obtained by nStor and necessary for the consummation of the transactions document contemplated hereby.; and (iii) There shall not the Buyer will have been instituted, pending or threatened against Andataco, Xxxxx, nStor or received a copy of a resolution of Sellers' Board of Directors approving the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any sale of the transactions contemplated Assets certified by this Agreementan authorized officer of the applicable Seller.

Conditions to Closing. (a) nStor's 7.1 Conditions to the Investors’ Obligations. The obligation of each Investor to consummate purchase the transactions contemplated by this Agreement shall be Common Shares and the Warrants at Closing is subject to the fulfillmentfulfillment to such Investor’s satisfaction, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date., of the following conditions, any of which may be waived by such Investor (as to itself only): (iia) Xxxxx The representations and warranties made by the ICDO and Long-E in Section 4 and 5 hereof qualified as to materiality shall be true and correct on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by ICDO and Long-E in Section 4 and 5 hereof not qualified as to materiality shall be true and correct in all material respects on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have delivered to nStor any performed all obligations and all approvals, consents or assignments covenants herein required to be obtained performed by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing it on or prior to the Closing Date, including without limitation those contained in Section 3.1 hereof. (vb) There The Company shall not have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Common Shares and the Warrants and the consummation of the other transactions contemplated by the Transaction Documents to be consummated on or prior to the Closing Date, all of which shall be in full force and effect. (c) The Company shall have executed and delivered to the Placement Agent each of the Transition Documents. (d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been institutedissued, pending and no action or threatened against Andatacoproceeding shall have been instituted by any governmental authority, Xxxxxenjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents. (e) The Company shall have delivered a Certificate, nStor or executed on behalf of the Company any suitby its Chief Executive Officer or its Chief Financial Officer, action dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b) and (d) of this Section 7.1, and (ii) Long-E shall have delivered a Certificate, executed on behalf of Long-E by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsection (a). (f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving, as applicable, the transactions contemplated by this Agreement and the other Transaction Documents, and the issuance of the Securities, certifying the current versions of its Articles of Incorporation and Bylaws or other proceeding organizational documents and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on its behalf. (g) No stop order or suspension of trading shall have been imposed by the SEC or any private party other governmental or governmental agency, commission, bureau or regulatory body seeking with respect to restrain or prohibit any public trading in the Common Stock. (h) The Company and the Placement Agent shall have received executed signature pages from Investors representing purchases of the Securities of at least $2.0 million in the aggregate. (i) The transactions contemplated by the Securities Exchange Agreement shall have been consummated simultaneously with the closing of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's The obligation of Buyer to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at satisfaction (or prior to Closing, of each waiver by Buyer in its sole discretion) of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):further conditions (ia) Xxxxx shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained Seller set forth in this Agreement shall have been true and correct at and as of the date hereof and shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of the Closing Date, except to the extent that such time.representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date; (viiib) Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller at or prior to the Closing; (c) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller by the President of Seller to the effect that the conditions set forth in Sections 2.7(i) and (ii); (d) There has not shall have been any no material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.Assets; (be) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement No Action shall be subject to the fulfillment, at pending or prior to Closing, of each of the following conditions precedent (threatened before any court or all of which may be waived in writing, in whole other governmental entity or in part, by Xxxxx): before any other person wherein an unfavorable order would (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the prevent consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement, (ii) affect adversely the right of Buyer to own the Assets or (iii) restrain or prohibit Buyer’s ownership or operation (of all or any material portion of the Assets, or compel Buyer or any of its affiliates to dispose of or hold separate all or any material portion of the Assets or all or any material portion of the business and assets of Buyer, and no such Order shall be in effect; (f) No law shall have been enacted or shall be deemed applicable to the transactions contemplated by this Agreement or the Ancillary Agreements which has any of the effects set forth in clauses (i) through (iii) in Section 4.5; (g) Seller shall have obtained the Consent of each Person whose Consent is required under the Contracts set forth in Schedule 1.1(b) and shall have provided evidence of each such Consent in form and substance satisfactory to Buyer; (h) Buyer shall have received all Authorizations (including any Environmental Permits) that are necessary for it to conduct the Business substantially as conducted by the Seller Group on the Balance Sheet Date and the date of this Agreement; (i) Seller shall have delivered to Buyer all agreements and other documents required to be delivered by Seller to Buyer pursuant to Section 2.2 of this Agreement; (j) Buyer shall have completed and shall be fully satisfied in its sole discretion with the results of its review of, and its other due diligence investigations with respect to, the Business.

Conditions to Closing. (a) nStor's obligation The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent condition, any or all of which be waived, in whole or in part, to the extent permitted by applicable law: (i) No governmental entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the transactions contemplated in this which is in effect and which prevents or prohibits consummation of the transactions contemplated in this Agreement; provided, however, that the parties shall use their best efforts to cause any such decree, judgment, injunction or other order to be vacated or lifted. (b) The obligations of Loeffler to effect the transactions contemplated herein sxxxx xx subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Merci contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. Loeffler shall have received a certificate of the principal xxecutive officer of Merci to such effect. (viiiii) There has not been any Merci shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions Closing including filing of Andataco from and after all required reports with the date SEC pursuant to the Exchange Act. Loeffler shall have received a certificate of the 1998 10-K until the Closing Dateprixxxxxx xxecutive officer of Merci to such effect. (bc) The obligations of Xxxxx Merci to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of Loeffler contained in this Agreement shall be true xxx xxxrect in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. Merci shall each have received a certificate of the principal executive officer of Loeffler to such effect. (ii) Loeffler shall have performed perfoxxxx xx complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Closing. Merci shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of Loeffler to such effect. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation Conditions to the Obligations of the Company. The obligations hereunder of the Company to consummate the transactions contemplated by this Agreement shall be with respect to the Purchaser are subject to the fulfillment, prior to or at the Closing, of the following conditions precedent: (i) the accuracy of the representations and warranties of the Purchaser hereunder as of the date hereof and as of the Closing Date, as the case may be, as if such representations and warranties had been made on and as of such dates; (ii) the performance by the Purchaser of its obligations hereunder that are required to be performed at or prior to the Closing, of each ; (iii) the execution and delivery of the following conditions precedent (any or all Stockholders Agreement and the Supply Agreement by the Purchaser, both of which may shall, upon execution thereof by the Company, be waived in writing, in whole or in part, by nStor):full force and effect; (iiv) Xxxxx no action or proceeding by or before any court, administrative body or governmental agency shall have performed all of been instituted or threatened by a third party which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, the obligations and complied with all of the covenants required to be performed Transaction Documents or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received by the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateTransaction Documents. (b) Conditions to the Obligations of the Purchaser. The obligations hereunder of Xxxxx the Purchaser to consummate the transactions contemplated by this Agreement shall be the Transaction Documents with respect to the Purchaser are subject to the fulfillment, prior to or at the Closing, of the following conditions precedent: (i) the accuracy of the representations and warranties of the Company hereunder as of the date hereof and as of the Closing Date, as the case may be, as if such representations and warranties had been made on and as of such dates; (ii) the execution and delivery of the Stockholders Agreement and the Supply Agreement, both of which shall, upon execution and delivery thereof by the Purchaser, be in full force and effect; (iii) the performance by the Company of its obligations hereunder that are required to be performed at or prior to the Closing; (iv) All corporate proceedings and other legal matters incident to the authorization, of each form and validity of the following conditions precedent Transaction Documents and the transactions contemplated thereby shall be reasonably satisfactory in all material respects to counsel for the Purchaser, and the Company shall have furnished to such counsel all documents and information that such counsel may reasonably request to enable them to pass upon such matters; (any or all of which may be waived in writingv) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation shall have furnished to the Purchaser a written opinion, as counsel for the Company, addressed to the Purchaser and dated the Closing Date, in whole or in partform and substance reasonably satisfactory to the Purchaser, by Xxxxx):to the effect that: (i1) nStor shall have performed all The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own its properties and assets and to carry on its business. (2) The execution and delivery by the Company of the Transaction Documents, and the performance by the Company of its obligations hereunder and complied with all thereunder, do not violate any provisions of its covenants required the Company's charter or bylaws or any provisions of any applicable United States federal or Delaware state law, rule or regulation known to us to be performed or customarily applicable to be complied with by it under transactions of this Agreement on or prior to the Closing Datenature. (ii3) nStor shall have delivered to Xxxxx No consent, approval or authorization of, or designation, declaration, filing or registration with, any and all approvals, consents United States federal or assignments to be obtained by nStor and necessary Delaware state court or governmental agency is required on the part of the Company for the execution and delivery of the Transaction Documents and the consummation by the Company of the transactions contemplated hereby. (iii) There shall not have been institutedthereby, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of except as may be required in connection with the transactions contemplated by the Transaction Documents. (4) The Company is not required to register as an "investment company" as such term is defined in the Investment Company Act and the rules and regulations of the Commission thereunder. (vi) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body that would, as of such Closing Date, materially and adversely affect or potentially materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of such Closing Date that would materially and adversely affect or potentially materially and adversely affect the business or operations of the Company. All opinions, letters, evidence and certificates mentioned above or elsewhere in this AgreementAgreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Purchaser.

Conditions to Closing. (a) nStor's The obligation of the Purchaser to consummate enter into and complete the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement fulfillment on or prior to the Closing Date.Date of the following conditions, any one or more of which may be waived by the Purchaser: (iia) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date in all material respects (other than those which are qualified as to materiality, Material Adverse Effect or other similar term, which shall be true and correct in all respects) on which this Agreement is signed and at and as of the Closing Date with the same force and effect as if though made anew at on and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. Date (bexcept that representations and warranties made as of a specific date shall be true and correct in all material respects (except as aforesaid) The obligations of Xxxxx to consummate on such date); the transactions contemplated Company shall have performed and complied with in all material respects all covenants and agreements required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement the Company on or prior to the Closing Date. (ii) nStor ; and the Company shall have delivered to Xxxxx the Purchaser a certificate, dated the date of the Closing Date and signed by an executive officer of the Company, to the foregoing effect. (b) No Action shall be pending or threatened by any and all approvalsGovernmental Authority or any other party against the Company or any of its directors or the Purchaser, consents which Action is reasonably likely to (i) restrain or assignments to be obtained by nStor and necessary for prohibit the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this the Transaction Agreements, or (ii) result in damages that alone or together with the costs and expenses of defending such Action are material in relation to the Company and its Subsidiaries, taken as a whole. (c) No Requirement of Law or Order shall have been enacted, entered, promulgated or enforced by any Governmental Authority that prohibits or makes illegal the consummation of any of the transactions contemplated by the Transaction Agreements. (d) Since the date hereof, no event or development shall have occurred (or failed to occur) and there shall be no circumstance (and the Purchaser shall not have become aware of any *CONFIDENTIAL TREATMENT REQUESTED previously existing circumstance) that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect. (e) The consents listed on Schedule 7.1(e) of the Company Disclosure Letter shall have been obtained and delivered to Purchaser. (f) The parties shall have received all approvals and actions of or by all Governmental Authorities which are necessary to consummate the transactions contemplated by the Transaction Agreements, which are either specified in Schedule 3.4 of the Company Disclosure Letter or otherwise required to be obtained prior to the Closing by applicable Requirements of Laws or which are necessary to prevent a Material Adverse Effect. (g) The Certificate of Incorporation shall have been amended to increase the authorized Common Stock from 98,500,000 shares to 250,000,000 shares. (h) A period of at least ten (10) days shall have elapsed since the mailing by the Company of the Company Stockholder Notice and the issuance by the Company of the NASDAQ Announcement, in each case, in accordance with Section 5.5. (i) The shares of Common Stock issuable upon conversion of the Note shall have been approved for listing on NASDAQ, subject only to official notice of issuance. (j) The Company shall have entered into the Note, the Assignment Agreement, the Security Agreement, the Registration Rights Agreement and the Celecoxib License Agreement.

Conditions to Closing. (a) nStor's obligation 3.01 Conditions to the Purchaser’s Obligations. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillmentsatisfaction (or waiver by the Purchaser in writing) of the following conditions as of the Closing Date: (a) (i) The representations and warranties set forth in Article IV and Article V (other than the Company Fundamental Reps, the Seller Fundamental Reps and those representations and warranties that address matters as of particular dates) shall be true and correct as of the Closing Date as though then made, (ii) the representations and warranties set forth in Article IV and Article V that address matters as of particular dates (other than the Company Fundamental Reps and the Seller Fundamental Reps) shall be true and correct as of such dates, except where the failure of such representations and warranties referenced in clauses (i) and (ii) above to be so true and correct have not, individually or in the aggregate, had a Material Adverse Effect (without giving effect to materiality, Material Adverse Effect or similar phrases in such representations and warranties), and (iii) the Company Fundamental Reps and the Seller Fundamental Reps shall be true and correct in all but de minimis respects as of the Closing Date as though then made; (b) Each of the Seller and the Company shall have performed in all material respects all of the covenants and agreements that are required to be performed by it under this Agreement at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):; (ic) Xxxxx The applicable waiting periods under the HSR Act shall have performed all of the obligations and complied with all of the covenants required to be performed expired or to be complied with by them under this Agreement on or prior to the Closing Date.been terminated; (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (vd) There shall not have been instituteda Material Adverse Effect since the date of this Agreement; (e) No judgment, pending decree or threatened against Andataco, Xxxxx, nStor judicial order shall have been entered which prevents the performance of a material part of this Agreement or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit consummation of a material part of any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the businesshereby, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate declares unlawful the transactions contemplated by this Agreement or causes such transactions to be rescinded; and (f) The Seller or the Company, as applicable, shall be subject have delivered to the fulfillmentPurchaser each of the following: (i) a certificate from each of the Seller and of the Company, executed by an authorized officer of each of the Seller and of the Company, respectively, and dated as of the Closing Date, stating that the conditions specified in Sections 3.01(a) and 3.01(b), as they relate to the Seller and the Company, respectively, have been satisfied; (ii) the Seller shall have delivered to the Purchaser a certificate, executed by an authorized officer thereof, duly completed pursuant to Section 1445 of the Code and the Treasury Regulations promulgated thereunder certifying that the Seller is not a “foreign person” within the meaning of Section 1445 of the Code; (iii) evidence reasonably satisfactory to the Purchaser of the termination of each Affiliate Agreement that is noted with an asterisk (*) on the Affiliated Transactions Schedule as to be terminated at or prior to Closing, of each Closing such that none of the following conditions precedent (Company or any or all of which may be waived in writing, in whole or in part, by Xxxxx):its Subsidiaries has any liability pursuant to each such Affiliate Agreement; (iiv) nStor shall have performed all of its obligations and complied the Limited Guaranty executed by the GTCR Limited Guarantors; and (v) the payoff letters in accordance with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to Section 7.04. If the Closing Date. (ii) nStor shall occurs, all closing conditions set forth in this Section 3.01 which have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation not been fully satisfied as of the transactions contemplated hereby. (iii) There Closing shall not be deemed to have been instituted, pending or threatened against Andataco, Xxxxx, nStor or waived by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser.

Conditions to Closing. (a) nStor's The obligation of the Purchaser to consummate enter into and complete the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement fulfillment on or prior to the Closing Date.Date of the following conditions, any one or more of which may be waived by the Purchaser: (iia) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date in all material respects (other than those which are qualified as to materiality, Material Adverse Effect or other similar term, which shall be true and correct in all respects) on which this Agreement is signed and at and as of the Closing Date with the same force and effect as if though made anew at on and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. Date (bexcept that representations and warranties made as of a specific date shall be true and correct in all material respects (except as aforesaid) The obligations of Xxxxx to consummate on such date); the transactions contemplated Company shall have performed and complied with in all material respects all covenants and agreements required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement the Company on or prior to the Closing Date. (ii) nStor ; and the Company shall have delivered to Xxxxx the Purchaser a certificate, dated the date of the Closing Date and signed by an executive officer of the Company, to the foregoing effect. (b) No Action shall be pending or threatened by any and all approvalsGovernmental Authority or any other party against the Company or any of its directors or the Purchaser, consents which Action is reasonably likely to (i) restrain or assignments to be obtained by nStor and necessary for prohibit the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this the Transaction Agreements, or (ii) result in damages that alone or together with the costs and expenses of defending such Action are material in relation to the Company and its Subsidiaries, taken as a whole. (c) No Requirement of Law or Order shall have been enacted, entered, promulgated or enforced by any Governmental Authority that prohibits or makes illegal the consummation of any of the transactions contemplated by the Transaction Agreements. (d) Since the date hereof, no event or development shall have occurred (or failed to occur) and there shall be no circumstance (and the Purchaser shall not have become aware of any previously existing circumstance) that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect. (e) The consents listed on Schedule 7.1(e) of the Company Disclosure Letter shall have been obtained and delivered to Purchaser. (f) The parties shall have received all approvals and actions of or by all Governmental Authorities which are necessary to consummate the transactions contemplated by the Transaction Agreements, which are either specified in Schedule 3.4 of the Company Disclosure Letter or otherwise required to be obtained prior to the Closing by applicable Requirements of Laws or which are necessary to prevent a Material Adverse Effect. (g) The Certificate of Incorporation shall have been amended to increase the authorized Common Stock from 98,500,000 shares to 250,000,000 shares. (h) A period of at least ten (10) days shall have elapsed since the mailing by the Company of the Company Stockholder Notice and the issuance by the Company of the NASDAQ Announcement, in each case, in accordance with Section 5.5. (i) The shares of Common Stock issuable upon conversion of the Note shall have been approved for listing on NASDAQ, subject only to official notice of issuance. (j) The Company shall have entered into the Note, the Assignment Agreement, the Security Agreement, the Registration Rights Agreement and the Celecoxib License Agreement.

Conditions to Closing. (a) nStor's obligation Section 6.1 The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law. a. The obligations of US WIRELESS to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx ISKYWIRE contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. US WIRELESS shall have received a certificate from the Majority Member of ISKYWIRE to such effect. (viiiii) There has not been any ISKYWIRE shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions Closing. US WIRELESS shall have received a certificate from the Majority Member of Andataco from and after the date of the 1998 10-K until the Closing DateISKYWIRE to such effect. (b) b. The obligations of Xxxxx ISKYWIRE to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of US WIRELESS contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. ISKYWIRE shall each have received a certificate of the principal executive officer of US WIRELESS to such effect. (ii) US WIRELESS shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Closing. ISKYWIRE shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of US WIRELESS to such effect. (iii) There US WIRELESS shall not put into effect an agent and consultant agreements with the Managers of iSkywire. (iv) ISKYWIRE shall have been instituted, pending or threatened against Andataco, Xxxxx, nStor or received the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking consent to restrain or prohibit any this Agreement from one hundred percent (100%) of its Members. (v) US WIRELESS shall deliver to ISKYWIRE a copy of its instruction letter to its transfer agent authorizing the issuance of the transactions contemplated by shares to be issued pursuant to this Agreement. (vi) US WIRELESS’s common stock shall be trading on the OTC Bulletin Board without extension on its symbol.

Conditions to Closing. (a) nStor's obligation to consummate The obligations of the transactions contemplated by this Agreement shall be Company hereunder in connection with the Closing are subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions precedent: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on each Closing Date of the representations and warranties of the Subscriber contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); and (ii) Xxxxx shall have delivered to nStor any all obligations, covenants and all approvals, consents or assignments agreements of the Subscriber required to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on performed at or prior to the each Closing Date. (v) There Date shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateperformed. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be Subscriber hereunder in connection with the Closing are subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.of the following conditions precedent: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on each Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (ii) nStor all obligations, covenants and agreements of the Company required to be performed at or prior to each Closing Date shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.been performed; and (iii) There shall not the delivery by the Company of (A) the stock certificate or transfer agent report evidencing that the shares of Common Stock have been instituted, pending or threatened against Andataco, Xxxxx, nStor or issued and registered in the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any name of the transactions contemplated by this AgreementSubscriber and (B) the duly executed Warrant in the name of the Subscriber.

Conditions to Closing. ‌ (a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, The respective obligations of each of the Company and the Backstoppers to complete the transactions contemplated hereby are subject to the reasonable satisfaction of the following conditions precedent (any prior to or all at the Effective Time, each of which is for the mutual benefit of the Company, on the one hand, and the Backstoppers, on the other hand, and may be waived, in whole or in part, jointly by the Company and the Backstoppers (provided that such conditions shall not be enforceable by the Company or the Backstoppers, as the case may be, if any failure to satisfy such conditions results from an action, error or omission by or within the control of the Party seeking enforcement (or, in the case where the party seeking enforcement is one or more of the Backstoppers, an action, error or omission by or within the control of the Backstopper seeking enforcement)): (i) the Information Circular as filed and distributed, and the Plan, as filed, distributed and approved, shall be acceptable to the Company and the Backstoppers; (ii) all conditions precedent to the Transaction and implementation of the Plan (including those set out in the Support Agreement) shall have been satisfied or waived in writingaccordance with the terms of the Support Agreement and the Plan and the Company shall have provided Goodmans with a certificate certifying such conditions have been satisfied or waived as of the Implementation Date; (iii) there shall not be any actions, investigations or proceedings, including appeals and applications for review, in progress, or to the knowledge of the Company or the Backstoppers, pending or threatened, by or before any Governmental Entity in Canada or the United States, in relation to the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares or Backstop Consideration Shares or the Share Offering, any of which is reasonably likely to be successful against the Company or the Issuer and which operates to prevent or restrict the lawful distribution of such shares (which prevention or restriction is continuing); and (iv) there shall not be any order issued by a Governmental Entity pursuant to applicable Laws, nor shall there be any change of applicable Law, in either case which operates to prevent or restrict the lawful distribution of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares or Backstop Consideration Shares (which prevention or restriction is continuing). (b) The obligations of the Backstoppers to complete the purchase of the Backstopped Shares are subject to satisfaction of the following conditions on or before the Implementation Date, each of which is for the benefit of the Backstoppers and may be waived, in whole or in part, by nStorthe Backstoppers (provided that such conditions shall not be enforceable by the Backstoppers if any failure to satisfy such conditions results from an action, error or omission by or within the control of the Backstopper seeking enforcement): (i) Xxxxx the Backstoppers shall have completed their due diligence with respect to the Share Offering on or before the date that is seven Business Days prior to the Implementation Date and such due diligence shall be satisfactory to the Backstoppers in their sole discretion; (ii) all actions required to be taken by or on behalf of the Company and/or the Issuer, including the passing of all requisite resolutions of their directors and all requisite filings with, or approvals, orders, rulings and consents of, any Governmental Entity will have occurred on or prior to the Implementation Date, so as to validly authorize the Share Offering, the creation and issuance of the Offering Shares, the Accrued Interest Offering Shares, the Backstopped Shares, the Backstop Consideration Shares and the purchase of Backstopped Shares by the Backstoppers as contemplated by this Agreement; (iii) the Company shall have obtained all applicable material non- governmental third party consents; (iv) counsel to the Issuer shall have delivered to the Backstoppers one or more legal opinions satisfactory to Xxxxxxxx, acting reasonably, collectively confirming that, as of the Implementation Date, the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares shall be: (a) duly authorized, validly issued and fully paid and non-assessable and, subject to receipt by the Issuer of an executed Rep Letter from each Backstopper and all information set forth in each such Rep Letter remaining true and correct as of the Implementation Date, the issuance thereof shall be in compliance with applicable Securities Laws and exempt from registration under the US Securities Act; and (b) freely tradable in Canada (provided that the Issuer is and has been a reporting issuer in a jurisdiction of Canada for four months preceding the trade, the trade is not a “control distribution” as defined in Canadian Securities Laws, no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade, no extraordinary commission or consideration is paid to a person or company in respect of the trade, and if the selling security holder is an insider or officer of the Issuer, the selling security holder has no reasonable grounds to believe that the Issuer is in default of Canadian Securities Laws). For greater certainty, the opinions of counsel may contain standard assumptions, including, without limitation, to assume the accuracy of statements made in the executed Rep Letters; (v) all terms and conditions of the Share Offering included in the Information Circular, the Plan and any other related document prepared by the Company or the Issuer for distribution or circulation shall have been acceptable to the Backstoppers and shall not have been changed in any material respect unless otherwise agreed to in writing by the Company and the Backstoppers in accordance with the terms of this Agreement; (vi) the Issuer (if it is not the Company) shall have entered into an agreement prior to the Election Deadline agreeing to be bound by the terms of this Agreement; (vii) the Company, the Issuer and the Subsidiaries shall have performed all of their material obligations under and in accordance with this Agreement and the Support Agreement (for greater certainty, material obligations include, without limitation, the obligations and complied with all of the covenants required to be performed Company or to be complied with by them under this Agreement on or prior to the Closing Date.Issuer in Sections 3(h), 3(i), 3(j) and 3(k) hereof); (iiviii) Xxxxx shall have delivered to nStor any the representations and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation warranties of each of the transactions contemplated hereby. (iii) nStor Company and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Subsidiaries contained in this Agreement and the Support Agreement shall continue to be true and correct, except to the extent such representations and warranties are by their terms given as of a specified date, in which case such representations and warranties shall be true and correct both at in all respects as of such date, and except as such representations and warranties may be affected by the date on which occurrence of events or transactions contemplated and permitted by this Agreement is and the Support Agreement and each of the Company and the Subsidiaries shall have provided Xxxxxxxx with a certificate signed and at and by an officer of the Company or the Subsidiary, as applicable, certifying compliance with this Section 7(b)(viii) as of the Closing Date as if made anew at and as of such time.Implementation Date;‌ (viiiix) There has not no change of control payments shall be owing or payable to the Company’s officers or employees in connection with the Transaction; (x) on the Implementation Date, all of the reasonable fees and expenses of the Advisors, for services rendered as counsel to the Backstoppers up to and including the Implementation Date, shall have been any material adverse change paid; provided that the Advisors shall have provided the Company with invoices for all such fees and expenses incurred up to the date that is five Business Days prior to the Implementation Date, and shall have also provided the Company with a reasonable estimate of all such fees and expenses to be incurred by the Advisors in the business, operations and financial conditions of Andataco period from and that date to the Implementation Date;‌ (xi) there shall not have occurred after the date of the 1998 10-K until the Closing Date.hereof a Material Adverse Change; and (bxii) The obligations of Xxxxx there shall not exist, after giving effect to consummate the Transaction and the other transactions contemplated by this Agreement shall be and the Support Agreement and assuming implementation of the Plan, any Material default or event of default under any Material Contract now in effect that will remain in effect following the Implementation Date (other than those defaults or events of default that are remedied, waived, stayed, extinguished or otherwise in any way rendered inoperative as part of the Proceedings). (c) The obligations of the Issuer to consummate the issuance of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and the Backstop Consideration Shares are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any on or all before the Implementation Date, which are for the benefit of which the Issuer and may be waived in writingwaived, in whole or in part, by Xxxxxthe Issuer (provided that such condition shall not be enforceable by the Issuer if any failure to satisfy such condition results from an action, error or omission by or within the control of the Issuer): (i) nStor the representation and warranties of each of the Backstoppers (other than the Defaulting Backstoppers or the Objecting Backstoppers) contained in this Agreement shall continue to be true and correct, except to the extent such representations and warranties are by their terms given as of a specified date, in which case such representations and warranties shall be true and correct in all respects as of such date, and except as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Agreement; and (ii) each of the Backstoppers shall have performed all of its material obligations to be performed by such Backstopper under and complied in accordance with all this Agreement and the Support Agreement. (d) Each of its covenants required the Company and the Backstoppers agree that it will use commercially reasonable efforts to cause the conditions set forth in this Section 7 to be satisfied on or before the Implementation Date to the extent that such conditions relate to acts to be performed or caused to be complied with performed by it under this Agreement on or prior to the Closing Datesuch Party. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation Section 6.1 The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law. a. The obligations of US WIRELESS to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx YYireless1 contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. US WIRELESS shall have received a certificate of the principal executive officer of YYireless1 to such effect. (viiiii) There has not been any YYireless1 shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions of Andataco from and after the date Closing. US WIRELESS shall have received a certificate of the 1998 10-K until the Closing Dateprincipal executive officer of YYireless1 to such effect. (biii) Xxxxxxxx.xxx, Inc. shall execute and deliver to US WIRELESS the Investment Representation Statement in the form attached hereto as Exhibit D. (iv) Xxxxxxx X. Xxxxxx shall have entered into the Employment Agreement and option agreement pursuant to Sections 5.5 and 5.6, above. b. The obligations of Xxxxx YYireless1 to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of US WIRELESS contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. YYireless1 shall have received a certificate of the principal executive officer of US WIRELESS to such effect. (ii) US WIRELESS shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Closing. YYireless1 shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of US WIRELESS to such effect. (iii) There US WIRELESS shall not appoint Xxxxxxx X. Xxxxxx as Executive Vice President Broadband Technology of US WIRELESS. (iv) US WIRELESS shall have been institutedentered into the Employment Agreement and option agreement with Xxxxxxx X. Xxxxxx pursuant to Sections 5.5 and 5.6, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking above. (v) US WIRELESS shall deliver to restrain or prohibit any YYireless1 a certified copy of its shareholder list dated as of the transactions contemplated by closing, and a copy of its instruction letter to its transfer agent authorizing the issuance of the shares to be issued pursuant to this Agreement. (vi) US WIRELESS’s common stock shall be trading on the OTC Bulletin Board without extension on its symbol. (vii) US WIRELESS shall have completed its financing with NIR on terms acceptable to YYireless1 and shall have provided to YYireless1 copies of all documents relating thereto.

Conditions to Closing. (a) nStor's The obligation of Purchaser to consummate the transactions contemplated by under this Agreement shall be is subject to the fulfillment, at or prior to Closingas of the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx The representations and warranties of Seller set forth in this Agreement that are qualified as to materiality shall be true and correct and the representations and warranties of Seller set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case on the date of this Agreement and on the Closing Date as though made on the Closing Date, except to the extent such representations and warranties speak as of an earlier date; (ii) Seller shall have performed and complied in all of the material respects with all covenants, obligations and complied with all of the covenants undertakings required by this Agreement to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.; (iii) The applicable waiting period, including any extension thereof, under HSR shall have expired without action taken to prevent consummation of the transactions contemplated by this Agreement; (iv) No judgment, order or decree shall have been rendered which has the effect of enjoining the consummation of the transactions contemplated by this Agreement; and (v) there shall not have occurred since the date hereof a material adverse change in the business, assets or condition (financial or otherwise) of Pictorial excluding any adverse effects arising out of or resulting from changes in the general economy or the reaction of employees, suppliers or customers to (i) Seller's entering into of this Agreement, (ii) Xxxxx shall have delivered to nStor any and all approvals, consents the announcement thereof or assignments to be obtained by Xxxxx and necessary for (iii) the consummation of the transactions contemplated hereby. (iiib) nStor The obligation of Seller to consummate the transactions contemplated under this Agreement is subject to the fulfillment, as of the Closing Date, of each of the following conditions: (i) The representations and its accountantswarranties of Purchaser set forth in this Agreement that are qualified as to materiality shall be true and correct and the representations and warranties of Purchaser set forth in this Agreement that are not so qualified shall be true and correct in all material respects, attorneys in each case on the date of this Agreement and other representatives on the Closing Date as though made on the Closing Date, except to the extent such representations and warranties speak as of an earlier date; (ii) Purchaser shall have had full performed and complete access during normal business hours complied in all material respects with all covenants, obligations and undertakings required by this Agreement to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing be performed or complied with on or prior to the Closing Date.; (viii) There The applicable waiting period, including any extension thereof, under HSR shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, expired without action or other proceeding by any private party or governmental agency, commission, bureau or body seeking taken to restrain or prohibit any prevent consummation of the transactions contemplated by this Agreement.; (viiv) X. Xxxxx No judgment, order or decree shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty been rendered which has the effect of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for enjoining the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement; and (v) Purchaser shall have executed and delivered to Seller the Transition Services Agreement.

Conditions to Closing. (a) nStor's The obligation of Buyer to consummate purchase the transactions contemplated by this Agreement shall be Shares pursuant to Paragraph 1 hereof is subject to the fulfillment, at satisfaction (or prior to Closing, waiver by Buyer in writing) of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):at the Closing: (i) Xxxxx the representations and warranties of Seller made in this Agreement shall be true and correct in all respects, as of the date hereof, and at and as of the Closing as though then made. (ii) Seller shall have performed all of the obligations and or complied with all of the covenants and agreements required to be performed or to be complied with by them Seller under this Agreement on at or prior to the Closing DateClosing. (iiiii) Xxxxx shall have delivered to nStor any and Seller has obtained all consents, approvals, consents orders, authorizations of, and registrations and filings with, any Federal, state, local or assignments foreign government or any court of component jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") or NASD, that are required to be obtained or made by Xxxxx and necessary for Seller, in connection with the execution, delivery or performance of this Agreement by Seller or the consummation by Seller of any of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor no action or proceeding by or before any Governmental Entity, or any other person shall have received the nStor Financing on be pending or prior to the Closing Date. (v) There shall not have been instituted, pending Seller's knowledge threatened challenging or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit the purchase and sale of any of the Shares or any of the other transactions contemplated by this Agreement or seeking to obtain damages from Buyer (or any of its affiliates) in connection with the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement. (viv) X. Xxxxx no statute, rule, regulation, executive order, decree, or temporary restraining order, preliminary injunction, permanent injunction or other order of which Seller has knowledge, enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the purchase and sale of the Shares shall have entered into Employment Agreement as provided for be in Section 3(a) hereofeffect. (viivi) Each representation Seller shall have delivered to Buyer: (A) a certificate dated the Closing Date stating that the conditions set forth in Paragraph 6(a)(i) through (v) have been satisfied; (B) the delivery of such additional certificates and warranty documents as Buyer may reasonably request. (b) The obligation of Xxxxx contained Seller to sell the Shares pursuant to Paragraph 1 hereof is subject to the satisfaction (or waiver by Seller in writing) of each of the following conditions precedent at the Closing: (i) the representations and warranties of Buyer made in this Agreement shall be true and correct both at in all respects, as of the date on which this Agreement is signed hereof, and at and as of the Closing Date as if made anew at and as of such timethough then made. (viiiii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date Buyer shall have performed or complied with all of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx covenants and agreements required to consummate the transactions contemplated be performed or complied with by Buyer under this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There Buyer shall not have delivered to Seller a certificate dated the Closing Date stating that the conditions set forth in Paragraph 6(b)(i) - (ii) have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementsatisfied.

Conditions to Closing. (a) nStor's obligation The obligations of each Investor to consummate the transactions purchase of the shares of Series A Preferred Stock at the Closing as contemplated by this Agreement shall be hereunder are subject to the fulfillmentfulfillment (or written waiver by such Investor (as to itself only)), at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx shall have performed all the representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement 3 shall be true and correct both at in all material respects (without giving effect to any materiality or Material Adverse Effect or similar qualifier set forth therein) as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date, except to the extent that such representations and warranties are made as of a specified dates, in which case such representations and warranties shall be true and correct in all material respects as of such time.date, provided however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 7(a)(i) shall be deemed to have been satisfied even if any representations and warranties of the Company (other than the Company’s representations and warranties in Sections 3(a), (b), (c), (d)(i)(A), (v), (dd)) are not so true and correct unless the failure of such representations and warranties of the Company to be so true and correct (without giving effect to any materiality or Material Adverse Effect or similar qualifier set forth therein), individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; (viiiii) There has not been the Company shall have complied in all material respects with its obligations hereunder that are required to be complied with at or prior to the Closing; (iii) (A) no provision of any material adverse change in applicable law or regulation and no judgment, injunction, order or decree shall prohibit the business, operations and financial conditions of Andataco Closing or shall prohibit or restrict such Investor or its Affiliates from and after the date owning or voting any Purchased Shares or Conversion Securities of the 1998 10-K until Company in accordance with the terms thereof and (B) no lawsuit shall have been commenced by any Governmental Entity seeking to effect any of the foregoing, such Investor’s purchase, ownership or voting of the Purchased Shares or Conversion Securities or otherwise materially and adversely affecting the ability of the parties hereto to complete the transaction described herein; (iv) with respect to the Purchased Shares to be acquired by such Investor at the Closing: (A) such purchase shall not (1) cause such Investor or any of its Affiliates to violate any banking law or regulation, or (2) cause such Investor, together with any other person whose ownership of securities of the Company would be aggregated with such Investor’s ownership of securities of the Company for purposes of any applicable banking law or regulation, to collectively be deemed to own, control or have the power to vote Purchased Shares which (assuming, for this purpose only, full conversion and/or exercise of such Purchased Shares by such Investor and such other Persons) would represent more than 9.9% of any class of voting securities of the Company outstanding at such time. (B) such Investor shall have received (x) feedback, satisfactory in such Investor’s reasonable good faith judgment, from the Federal Reserve Board (which may be the absence of any communication) to the effect that the purchase of the Purchased Shares and the consummation of the Closing Date. (b) The obligations of Xxxxx to consummate and the transactions contemplated by this Agreement shall be subject to the fulfillment, at will not result in such Investor or prior to Closing, any of each its Affiliates (i) being deemed in control of the following conditions precedent Company for purposes of the BHC Act, (ii) otherwise being regulated as a bank holding company within the meaning of the BHC Act or required to serve as a source of strength for the Company or any Bank, or all (iii) being required to file a notice under the CBCA (or a notice has been submitted and such Investor has not received any objection after the expiration or earlier termination of any applicable waiting period), and (y) feedback, satisfactory in such Investor’s reasonable good faith judgment, from the TDSML (which may be waived in writing, in whole or in part, by Xxxxx): (ithe absence of any communication) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any effect that the purchase of the Purchased Shares and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of Closing and the transactions contemplated by this AgreementAgreement will not result in such Investor or any of its Affiliates (1) being deemed a bank holding company within the meaning of the Texas Banking Act (Tex. Fin. Code § 31.001 et seq.), a holding company within the meaning of the Texas Savings Bank Act (Tex. Fin. Code § 91.001 et seq.), or the equivalent thereof for purposes of applicable Texas law, (2) becoming subject to regulation by the TDSML or Texas Department of Banking under applicable Texas law, or (3) being required to file a notice under the TCBCA (or a notice has been submitted and such Investor has received approval from the TDSML, or has not received any objection after the expiration or earlier termination of any applicable waiting period, as applicable); and otherwise the Company and such Investor shall have obtained all applicable governmental or regulatory approvals or authorizations of or, to the extent required by applicable law or regulation, consents, approvals or exemptions from bank regulatory authorities, required in connection with the transactions contemplated by this Agreement (or has not received any objection after the expiration or earlier termination of any applicable waiting period); (v) since the date hereof, there shall not be any action taken, or any law enacted, entered, enforced or deemed applicable, by any Governmental Entity, which shall impose or contain any restraint or condition that would reasonably be expected to reduce in any material respect the economic benefits to such Investor of the Agreement or that would require Investor to comply with requirements that are materially restrictive or burdensome to such Investor or its Affiliates (it being understood that information commonly required or restrictions commonly imposed in transactions of this type will not be deemed materially restrictive or burdensome); (vi) the Company shall simultaneously issue and deliver at the Closing to such Investor hereunder the number of shares of Series A Preferred Stock set forth below such Investor’s name on the signature page hereto; (vii) since December 31, 2021, there shall not have occurred any circumstance, event, change, development or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company or the Bank;

Conditions to Closing. (a) nStor's obligation 7.01 Conditions to the Parent’s and the Merger Sub’s Obligations. The obligations of Ultimate Parent, the Parent and the Merger Sub to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillmentsatisfaction (or, at or prior to Closingthe extent permitted by applicable Law, of each waiver by the Parent in writing) of the following conditions precedent as of the Closing Date: (any or all of which may be waived in writing, in whole or in part, by nStor): a) (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement The Fundamental Representations shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if though made anew at and as of such time. the Closing Date and (viiiii) There has not been any material adverse change the other representations and warranties of the Company contained in ARTICLE III of this Agreement (other than the Fundamental Representations) shall be true and correct (giving effect to the applicable exceptions set forth in the business, operations Disclosure Schedules) at and financial conditions of Andataco from and after the date as of the 1998 10-K until Closing Date as though made at and as of the Closing Date.Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except where the failure of such representations and warranties to be so true and correct (giving effect to the applicable exceptions set forth in the Disclosure Schedules) does not constitute a Material Adverse Effect; (b) The obligations Company shall have performed in all material respects the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing; (c) The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated; (d) No Order shall have been entered by any Governmental Entity that remains in effect and would prevent the performance of Xxxxx to consummate this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded; (e) The Company shall be subject have delivered to the fulfillment, at or prior to Closing, of Parent each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):following: (i) nStor shall have performed all a certificate of its obligations and complied with all an authorized officer of its covenants required to be performed the Company in his or to be complied with by it under this Agreement on or prior to her capacity as such, dated as of the Closing Date., stating that the conditions specified in Sections 7.01(a) and (b) have been satisfied; and (ii) nStor shall have delivered to Xxxxx any and all approvalsa duly executed certificate, consents or assignments to be obtained by nStor and necessary for the consummation dated as of the transactions contemplated herebyClosing Date and signed by the Company, that satisfies the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) confirming that the Company Units are not “United States real property interests” as defined in Section 897 of the Code, and a notice addressed to the Internal Revenue Service, dated as of the Closing Date and signed by the Company, that satisfies the requirements of Treasury Regulation Section 1.897-2(h)(2), in each case in form and substance reasonably satisfactory to the Parent. (iiif) There shall not have been instituteda Material Adverse Effect which has occurred since the date hereof and is continuing; (g) There shall not be pending any Action by a Governmental Entity that seeks to restrain, pending enjoin or threatened against Andataco, Xxxxx, nStor or otherwise prevent the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated by Merger (provided that, for the avoidance of doubt, for purposes of this Section 7.01(g) of this Agreement, the term Action shall be deemed to exclude any letter from the Federal Trade Commission Bureau of Competition in the form announced and disclosed by the Federal Trade Commission Bureau of Competition on August 3, 2021); and (h) The Escrow Agreement shall have been executed and delivered by the Representative. If the Closing occurs, all Closing conditions set forth in this Section 7.01 that have not been fully satisfied as of the Closing shall be deemed to have been waived by the Parent and the Merger Sub; provided, that the foregoing shall not limit any remedy in respect of Fraud.

Conditions to Closing. (a) nStor's The obligation of each party to this Agreement to consummate the transactions contemplated by this Agreement purchase and sale of Shares at the Closing shall be subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions: (iii) Xxxxx No temporary restraining order, preliminary or permanent injunction or other order issued by any Governmental Authority or other legal or regulatory restraint or prohibition preventing the issuance and sale of the Shares shall have delivered be in effect. There shall be no action, suit or other proceeding pending in or before any Governmental Authority or arbitration tribunal against or involving either the Company or the Purchaser that in any manner challenges or seeks to nStor any and all approvalsprevent, consents enjoin, alter or assignments to be obtained by Xxxxx and necessary for materially delay the consummation of the transactions contemplated hereby.to occur at the Closing and the enforceability of the rights and obligations as contemplated by the Transaction Documents, and neither the Company nor the Purchaser (nor any of their respective Affiliates) shall have received notice of any such threatened proceeding; (ii) The issuance of the Shares shall be exempt from the notification requirements of the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976; (iii) nStor and its accountantsExcept for the Prospectus, attorneys all other notices, reports and other representatives filings required to be made prior to the Closing with, and all consents, registrations, approvals, permits and authorizations required to be obtained prior to the Closing from, any Governmental Authority for the issuance and sale of the Shares in accordance with the terms hereof shall have had full been made or received and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records remain in effect as of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.the date of Closing; and (iv) nStor shall have received The Registration Statement pursuant to which the nStor Financing on or prior Shares will be issued to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement Purchaser shall be true effective and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datesubject to a stop order. (b) The obligations obligation of Xxxxx the Company to consummate the transactions contemplated by this Agreement purchase and sale of Shares at the Closing shall be subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.of the following conditions: (i) The Purchaser shall have delivered a certificate of an executive officer of the Purchaser confirming that the representations and warranties of the Purchaser set forth in Sections 3 and 4 hereof are true and correct as of the date of Closing; (ii) nStor The Purchaser shall have delivered the Purchase Amount to the Company by wire transfer of immediately available U.S. federal funds; and (iii) The Purchaser shall have executed and delivered the Alliance Agreement to the Company. (c) The obligation of the Purchaser to consummate the purchase and sale of Shares at the Closing shall be subject to the satisfaction at or prior to the Closing of the following conditions: (i) The Shares shall have been accepted for and approved for inclusion and quotation on NASDAQ; (ii) The Company shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation Purchaser a certificate of an executive officer of the transactions contemplated hereby.Company confirming that the representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of Closing; (iii) There The Company shall not have delivered to the Purchaser a stock certificate representing the Shares or in lieu thereof shall have caused a book entry evidencing the Purchaser’s ownership of the Shares to be entered in the books and records of such broker-dealer as shall have been instituted, pending or threatened against Andataco, Xxxxx, nStor or identified by the Purchaser for such purpose; and (iv) The Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking shall have executed and delivered the Alliance Agreement to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser.

Conditions to Closing. (a) nStor's obligation 7.01 Conditions to the Parent’s and the Merger Sub’s Obligations. The obligations of the Parent and the Merger Sub to consummate the transactions contemplated by this Agreement shall be Agreement, including the Merger, are subject to the fulfillmentsatisfaction (or, at or prior to Closingif permitted by applicable Law, of each waiver by the Parent and the Merger Sub in writing) of the following conditions precedent conditions: (any or all of which may be waived in writing, in whole or in part, by nStor): a) (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the The Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement Fundamental Representations shall be true and correct both at the date on which this Agreement is signed and in all respects (other than de minimis inaccuracies) at and as of the Closing Date as if though made anew at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such time. date) and (viiiii) There all other representations and warranties of the Company contained in Article III of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (giving effect to the applicable exceptions set forth in the Disclosure Schedules but without giving effect to any limitation as to “materiality” or “Material Adverse Effect” qualifiers that may be set forth therein) has not been any material adverse change had and would not reasonably be expected to have, individually or in the businessaggregate, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.a Material Adverse Effect; (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed all of its obligations and complied with in all material respects all of its the covenants and agreements required to be performed or to be complied with by it under this Agreement on at or prior to the Closing Date.Closing; (iic) nStor The Merger shall have delivered been approved and this Agreement shall have been adopted by the affirmative vote of holders of a majority of the votes entitled to Xxxxx any be cast with respect to Company Stock in accordance with the DGCL and all the Organizational Documents (the “Shareholder Approval”); (d) The applicable waiting periods or approvals, consents if any, under the HSR Act shall have expired, been terminated, or assignments to be obtained by nStor otherwise been obtained; (e) No Governmental Entity of competent authority and necessary for jurisdiction shall have issued an Order or enacted a Law that remains in effect and which makes illegal or otherwise prohibits the performance of this Agreement or the consummation of any of the transactions contemplated hereby.; (iiif) There The Company shall not have delivered to the Parent each of the following: (i) a certificate of an authorized officer of the Company in his or her capacity as such, dated as of the Closing Date, certifying, representing and warranting that the conditions specified in Sections 7.01(a), (b) and (g) have been instituted, pending or threatened against Andataco, Xxxxx, nStor or satisfied; (ii) certified copies of resolutions of the requisite shareholders of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any for the Shareholder Approval approving the consummation of the transactions contemplated by this Agreement; (iii) certified copies of resolutions duly adopted by the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby; (iv) a duly executed certificate that satisfies the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) confirming that the Company is not, nor has it been within five years of the date of the certification, a “United States real property holding corporation” as defined in Section 897 of the Code (the “FIRPTA Certificate”) and a notice addressed to the Internal Revenue Service, signed by the Company, that satisfies the requirements of Treasury Regulation Section 1.897-2(h)(2) to be submitted by Parent to the Internal Revenue Service as agent for the Company; provided, however, that if the Company fails to deliver the FIRPTA Certificate and the notice described in the foregoing sentence, Parent’s sole remedy shall be to withhold from payments made under this Agreement any withholding required by applicable Law; (v) the Estimated Closing Statement in accordance with Section 1.07; (vi) the Certificate of Merger in accordance with Section 2.02(a); and (vii) the other documents described in Section 5.05; (g) there shall not have been a Material Adverse Effect which has occurred since the date hereof and is continuing; and (h) the Escrow Agreement shall have been executed and delivered by the Representative and the Escrow Agent. If the Closing occurs, all Closing conditions set forth in this Section 7.01 that have not been fully satisfied as of the Closing shall be deemed to have been waived by the Parent and the Merger Sub (it being understood the same shall not affect claims in the case of Fraud).

Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writingby Buyer and Seller, together, in whole or in part, part to the extent permitted by nStorApplicable Law): (i) Xxxxx any applicable waiting period under the HSR Act (and any extensions thereof) with respect to the transactions contemplated hereby shall have performed all of the obligations and complied with all of the covenants required to be performed expired or to be complied with by them under this Agreement on or prior to the Closing Date.been terminated; and (ii) Xxxxx there shall have delivered to nStor not be in force an injunction or order of any and all approvalscourt of competent jurisdiction in the United States enjoining, consents prohibiting or assignments to be obtained by Xxxxx and necessary for rendering illegal the consummation of the transactions contemplated herebyClosing. (iiib) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions (any or all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.which may be waived by Buyer in whole or in part to the extent permitted by Applicable Law): (ivA) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx Seller Fundamental Warranties contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all respects (other than de minimis inaccuracies) as of the Closing Date Date, as if made anew at and as of such timedate, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects (other than de minimis inaccuracies) at and as of such date, and (B) the representations and warranties of Seller, other than the Seller Fundamental Warranties, contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for any inaccuracy or omission that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; (ii) the covenants of Seller to be performed prior to the Closing shall have been performed in all material respects (or any non-performance shall have been cured to the extent necessary to satisfy this condition); (iii) since the date of this Agreement, except to the extent arising out of any matters included in Section 3.09(a)(ii) of the Seller Disclosure Schedule, there shall not have occurred any Material Adverse Effect; and (iv) Buyer shall have received a certificate signed by an executive officer of Seller to the effect of the foregoing clauses (i), (ii) and (iii). (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bc) The obligations obligation of Xxxxx Seller to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following further conditions precedent (any or all of which may be waived in writing, by Seller in whole or in part, part to the extent permitted by XxxxxApplicable Law): (iA) nStor the Buyer Fundamental Warranties contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall have performed be true and correct in all respects (other than de minimis inaccuracies) as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects (other than de minimis inaccuracies) at and as of such date, and (B) the representations and warranties of Buyer, other than Buyer Fundamental Warranties, contained in this Agreement shall, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, and except any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to materially impair Buyer’s ability to perform or comply with its obligations and complied with all under this Agreement or consummate the transactions contemplated hereby; (ii) the covenants of its covenants required Buyer to be performed or to be complied with by it under this Agreement on or prior to the Closing Dateshall have been performed in all material respects (or any non-performance shall have been cured to the extent necessary to satisfy this condition); and (iii) Seller shall have received a certificate signed by an executive officer of Buyer to the effect of the foregoing clauses (i) and (ii). (iid) nStor All conditions to the Closing shall be deemed to have delivered to Xxxxx any been satisfied or waived from and all approvals, consents or assignments to be obtained by nStor and necessary for after the consummation of the transactions contemplated hereby. (iii) There shall not have been institutedClosing. Neither Seller nor Buyer may rely on the failure of any condition set forth in this Article 8 to be satisfied if such failure was caused by the failure of Seller, pending on the one hand, or threatened against AndatacoBuyer, Xxxxxon the other hand, nStor or the Company any suitrespectively, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by comply with its obligations under this Agreement.

Conditions to Closing. (a) nStor's The obligation of each of the Purchasers to consummate purchase Securities at the Closing is subject to the fulfillment, or the waiver by such Purchaser, of the following conditions on or before the Closing: (i) The representations and warranties of the Company in Section 4 shall be true in all material respects at and as of such Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. (ii) The Company shall have performed and complied in all material respects with all agreements and conditions in this Agreement required to be performed or complied with by the Company prior to or at the Closing. (iii) The Company shall have delivered to the Purchasers a copy of the Registration Rights Agreement executed by the Company. (iv) No proceeding challenging this Agreement or the other Transaction Agreements, or the transactions contemplated hereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official or shall be pending against or involving the Company. (v) The sale of the Shares and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law, rule, governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person with respect to any of the transactions contemplated hereby required to be obtained or made prior to the Closing shall have been duly obtained or made and shall be in full force and effect. (vi) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement and the other Transaction Agreements shall be subject satisfactory in form and substance to the fulfillmenteach Purchaser, at or prior to Closing, of and each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which the nStor Financing on or prior to the Closing Date. (v) There shall not Purchasers may have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for reasonably requested in Section 3(a) hereofconnection with such transactions. (vii) Each representation Purchaser shall have received from Haynes and warranty of Xxxxx contained in this Agreement shall be true and correct both at Boone, LLP, xxxxial cxxxxxl to the date on which this Agreement is signed and at and as of Company, an opinion addressed to such Purchaser, dated the Closing Date as if made anew at and as substantially in the form of such timeExhibit C hereto. (viii) There has not been any material adverse change in Each Purchaser shall have received from the business, operations and financial conditions of Andataco from and after Company an original stock certificate evidencing the date purchase of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingShares and an original Warrant, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary each case for the consummation number of shares of Common Stock and the transactions contemplated herebynumber of Warrant Shares, respectively, set forth opposite such Purchaser's name on Schedule I hereto. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation Section 6.1 The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law. a. The obligations of US WIRELESS to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx UBN contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. US WIRELESS shall have received a certificate from the Majority Member of UBN to such effect. (viiiii) There has not been any UBN shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions Closing. US WIRELESS shall have received a certificate from the Majority Member of Andataco from and after the date of the 1998 10-K until the Closing DateUBN to such effect. (b) b. The obligations of Xxxxx UBN to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of US WIRELESS contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. UBN shall each have received a certificate of the principal executive officer of US WIRELESS to such effect. (ii) US WIRELESS shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Closing. UBN shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of US WIRELESS to such effect. (iii) There US WIRELESS shall not put into effect an agent agreement with Xx. Xxxx X. Dulworth and Xx. Xxxx X. Binkley. (iv) UBN shall have been instituted, pending or threatened against Andataco, Xxxxx, nStor or received the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking consent to restrain or prohibit any this Agreement from one hundred percent (100%) of its Members. (v) US WIRELESS shall deliver to UBN a copy of its instruction letter to its transfer agent authorizing the issuance of the transactions contemplated by shares to be issued pursuant to this Agreement. (vi) US WIRELESS’s common stock shall be trading on the OTC Bulletin Board without extension on its symbol.

Conditions to Closing. (a) nStor's obligation The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law: (i) No governmental entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the transactions contemplated in this which is in effect and which prevents or prohibits consummation of the transactions contemplated in this Agreement; provided, however, that the parties shall use their best efforts to cause any such decree, judgment, injunction or other order to be vacated or lifted. (b) The obligations of KMA International to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. KMA (iiCanada) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. KMA International shall have received a certificate of the principal executive officer of KMA (Canada) to such effect. (viiiii) There has not been any KMA (Canada) shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions of Andataco from and after the date Closing. KMA International shall have received a certificate of the 1998 10-K until the Closing Dateprincipal executive officer of KMA (Canada) to such effect. (bc) The obligations of Xxxxx KMA (Canada) to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of KMA International contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. KMA (Canada) shall each have received a certificate of the principal executive officer of KMA International to such effect. (ii) KMA International shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. Closing. KMA (iiCanada) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of KMA International to such effect. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStorThe obligations of the Seller, on the one hand, and the Buyer, on the other hand, to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions: (i) there shall not be in effect any preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States or by any United States federal or state governmental or regulatory body nor any statute, rule, regulation or executive order promulgated or enacted by any United States federal or state governmental authority which restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement or any other agreement or document contemplated hereby; and (ii) any filings required to be made under the HSR Act shall have been made, and all applicable waiting periods thereunder with respect to the transactions contemplated by this Agreement shall have expired or been terminated. (b) Seller's obligations to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by Seller): (i) The representations and warranties of the Buyer set forth in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein (other than the representations and warranties contained in Section 2.1)) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties (other than the representations and warranties contained in Section 2.1) to be so true and correct has not had and would not have, individually or in the aggregate, a Material Adverse Effect; (ii) the Buyer shall have performed and complied with each obligation, covenant and condition required by this Agreement and the other documents contemplated hereby to be performed or complied with by it prior to or at the Closing, with such exceptions as could not reasonably be expected to result in a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement or any other agreement or document contemplated hereby provided, however, that nothing in this subparagraph shall affect Seller’s rights under Section 4.2 in the event of a default thereunder; (iii) the YUM! Brands, Inc. Board of Directors, and PHI will have approved the transactions contemplated by this Agreement; (iv) the Seller will have received a copy of resolutions adopted at a meeting or unanimous written consent evidencing the action by the Buyer's Board of Directors approving the purchase of the Assets under this Agreement, which resolutions shall be certified by an authorized officer; (A) the Buyer will deliver to Seller a statement, signed by the Buyer's Chief Financial Officer, certifying that the aggregate amount of the stockholders’ equity shown on Buyer’s pro forma balance sheet (which shall be prepared as of September 23, 2008 and shall give effect to the transactions contemplated by this Agreement (excluding any gain or loss associated with this transaction) and any net financing needed by Buyer to pay the Total Transaction Costs) and will constitute at least 20% of the total of such equity plus all funded indebtedness, in each case, on the same pro forma basis, and (B) Seller shall otherwise be reasonably satisfied in all respects with the capital structure of the Buyer; and (vi) the Buyer shall deliver to Seller and PHI, and the Seller and PHI shall have received from the Buyer and its Affiliates, as the Seller and PHI deem reasonably necessary, all Franchise Disclosure Document receipts, including those relating to any Addenda or Amendments. (c) The Buyer's obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, writing by nStorthe Buyer): (i) Xxxxx shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained Seller set forth in this Agreement shall be true and correct both at (disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein (other than the representations and warranties contained in Section 2.1)) as of the date on which of this Agreement is signed and at and as of the Closing Date as if though made anew at on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such time.earlier date), except where the failure of such representations and warranties (other than the representations and warranties contained in Section 2.1) to be so true and correct has not had and would not have, individually or in the aggregate, a Material Adverse Effect; (viiiii) There has Seller shall have performed and complied with each obligation, covenant and condition required by this Agreement and the other documents contemplated hereby to be performed or complied with by it prior to or at the Closing, with such exceptions as could not been any reasonably be expected to result in a material adverse change effect on the ability of the Seller to perform its obligations under this Agreement or any other agreement or document contemplated hereby; provided, however, that nothing in this subparagraph shall affect Buyer’s rights under Section 4.2 in the business, operations and financial conditions event of Andataco from and after a default thereunder; and (iii) the date Buyer will have received a copy of a resolution of Seller’s Board of Directors approving the sale of the 1998 10-K until Assets certified by an authorized officer of the Closing Date. (b) The obligations of Xxxxx Seller. Notwithstanding the foregoing, however, Bxxxx’s obligation to consummate the transactions transaction contemplated by this Agreement shall be subject is conditioned upon its ability to obtain the fulfillment, at or prior necessary financing upon terms that are acceptable to Closing, Buyer that does not result in the repricing of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated Buyer’s existing debt while preserving adequate liquidity as determined by this AgreementBuyer in its sole discretion.

Conditions to Closing. (a) nStor's obligation Conditions to consummate All Parties' Obligations. The obligations of all the transactions contemplated by parties to this Agreement to effect the purchase and sale of the Shares shall be subject to the fulfillment, at or prior to Closing, of each fulfillment of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx No temporary restraining order, preliminary or permanent injunction or other order or restraint issued by any court of competent jurisdiction, no order, decree, restraint or pronouncement by any governmental entity, and no other legal restraint or prohibition which would prevent or have the effect of preventing the consummation of the sale of the Shares shall have performed all of the obligations and complied with all of the covenants required to been issued or adopted or be performed or to be complied with by them under this Agreement on or prior to the Closing Datein effect. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor The parties shall have received the nStor Financing on or prior all necessary contractual and regulatory consents to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of effect the transactions contemplated hereby. (iii) There shall not be any litigation or governmental proceeding seeking to enjoin or challenging, or seeking damages in connection with, or having been threatened with respect to, the sale of the Shares that, in the parties' respective judgment, makes it inadvisable to proceed with the sale of the Shares. (iv) The Company shall have been institutedexecuted and delivered the Registration Rights Agreement in the form of Exhibit F attached hereto. (b) Conditions to the Obligations of Company. The obligations of Company under this Agreement to consummate the sale of the Shares are subject to the fulfillment at or prior to the Closing Date of the following conditions: (i) The representations and warranties of Purchaser set forth herein shall be true and correct as of the Closing Date. (ii) Purchaser shall have duly performed and complied with the covenants, pending agreements and conditions required by this Agreement to be performed by or threatened against Andatacocomplied with by each of them, Xxxxxrespectively, nStor prior to or at the Closing Date. (iii) All corporate proceedings of the Company any suit, action to be taken or other proceeding by any private party or governmental agency, commission, bureau or body seeking required to restrain or prohibit any of be taken in connection with the transactions contemplated hereby have been taken on or prior to the Closing Date and all documents incident thereto shall be reasonably satisfactory in form and substance to Company, and Company shall have received all such information and such counterpart originals or certified or other copies of such documents as Company may reasonably request. (c) Conditions to the Obligations of Purchaser. The obligations of Purchaser under this Agreement to effect the transactions contemplated hereby are subject to the fulfillment at or prior to the Closing Date of the following conditions: (i) The representations and warranties of the Company and Company set forth herein shall be true and correct as of the Closing Date. (ii) The Company and Company shall have duly performed and complied with the covenants, agreements and conditions required by this AgreementAgreement to be performed by or complied with by it or him, respectively, prior to or on the Closing Date. (iii) All corporate proceedings of the Company to be taken or required to be taken in connection with the transactions contemplated hereby have been taken on or prior to the Closing Date and all documents incident thereto shall be reasonably satisfactory in form and substance to Purchaser and his counsel, and Purchaser and his counsel shall have received all such information and such counterpart originals or certified or other copies of such documents as Purchaser and his counsel may reasonably request. (iv) The Company shall have delivered, or cause to be delivered, to Purchaser a certificate or certificates representing the Shares to be sold by Company hereunder in negotiable form. (v) On the Closing Date, Company shall pay, and shall hold Purchaser harmless from and against, all transfer, sales, stamp, registration, documentary or other similar taxes ("Transfer Taxes") payable in connection with the transactions contemplated hereby and will prepare and file any tax returns and other filings relating thereto. Company and Purchaser shall be responsible for their own personal income tax gain based on the purchase price contemplated hereby. The Company shall pay when due any and all other taxes which become payable, and all fees and charges, in connection with the transactions contemplated hereby.

Conditions to Closing. (a) nStor's obligation The obligations of the Company and the Unit Holders to consummate the transactions contemplated by this Agreement shall be Transactions are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (conditions, any one or all more of which may be waived in writing, in whole or in part, writing by nStor): (i) Xxxxx shall have performed all mutual consent of the obligations Company and complied with all the Unit Holders holding a majority of the covenants required to be performed or to be complied with by them under Transferred Units: 9.1. the representations and warranties of the Unit Holders contained in Section ‎7 of this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for contained in Section 3(a) hereof. (vii) Each representation and warranty ‎8 of Xxxxx contained in this Agreement shall be true and correct both at in all material respects (except to the extent any such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects as so qualified) as of, and as if made on, the date on which of this Agreement is signed and at and as of the Closing Date Closing, except to the extent any such representation or warranty expressly speaks as if made anew at of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such time.earlier date; (viii) There has not been any material adverse change in 9.2. the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed all of its obligations and complied with all of its covenants covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or to be complied with by it under the Company, and each Unit Holder shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by such Unit Holder, in each case on or prior to before the Closing Date.Closing; (ii) nStor 9.3. no judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have delivered to Xxxxx been issued, and no action or proceeding shall have been instituted by any and all approvalsgovernmental authority, consents enjoining or assignments to be obtained by nStor and necessary for preventing the consummation of the transactions Transactions contemplated hereby.; and (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or 9.4. the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any shall have filed the Charter with the Secretary of State of the transactions contemplated by this AgreementState of Delaware, and the Charter shall remain in full force and effect as of the Effective Time.

Conditions to Closing. (a) nStor's The obligation of Purchaser to consummate sell and of Issuer to acquire the Shares at the Closing pursuant to this Agreement shall be subject to there being no order of any court or administrative agency in effect which restrains or prohibits the transactions contemplated hereby, and no suit, action, investigation, inquiry or other legal or administrative proceeding having been instituted and remaining pending on the date of the Closing, or threatened on that date, which challenges the validity or legality of the transactions contemplated hereby and which (i) has a reasonable likelihood of success on the merits and (ii) if adversely determined, would render it unlawful, as of such date, to effect the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived substantially in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied accordance with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateterms. (b) The obligations of Xxxxx Purchaser to consummate purchase the transactions contemplated by Shares at the Closing pursuant to the terms of this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or performance by Issuer in all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all material respects of its covenants required and obligations hereunder to be performed or to be complied with by it under this Agreement on at or prior to the Closing Dateand to all of Issuer's representations and warranties hereunder being true and correct in all material respects as if made on and, except if some other date is specifically set forth therein, as of the date of the Closing. (iic) nStor The obligations of Issuer to sell the Shares at the Closing pursuant to the terms of this Agreement shall have delivered be subject to Xxxxx any the performance by Purchaser in all material respects of its covenants and all approvals, consents or assignments obligations hereunder to be obtained by nStor performed at or prior to the Closing and necessary for the consummation to all of Purchaser's representations and warranties hereunder being true and correct in all material respects as if made on and, except if some other date is specifically set forth therein, as of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any date of the transactions contemplated by this AgreementClosing.

Conditions to Closing. 8.01 Conditions to the Parent’s and the Merger Sub’s Obligations. The obligations of the Parent and the Merger Sub to (aand to cause the Securities Buyers to) nStor's obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillmentsatisfaction (or, at or prior to Closingif permitted by applicable Law, of each waiver by the Parent and the Merger Sub in writing) of the following conditions precedent as of the Closing Date: (any or all of which may be waived in writing, in whole or in part, by nStor): a) (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the The Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement Fundamental Representations shall be true and correct both at in all respects, except for de minimis inaccuracies, and with respect to the date representations and warranties set forth in Section 4.05(a) or Section 4.05(b), to the extent set forth on which this Agreement is signed the Estimated Closing Statement and included in the determinations of Per Share Closing Merger Consideration and Per Share Additional Merger Consideration and not resulting in additional costs, expenses or liabilities of the Parent and Merger Sub that are not de minimis, at and as of the Closing Date as if though made anew at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such time. date), (viiiii) There the representations and warranties contained in Section 4.07(b) shall be true and correct in all respects at and as of the Closing Date as though made at and as of the Closing Date and (iii) all other representations and warranties of the Company contained in Article IV of this Agreement shall be true and correct (without regard and without giving effect to any qualifiers or exceptions as to “materiality,” “Material Adverse Effect,” or other similar qualifications contained in or applicable to such representations and warranties, other than the term “Company Material Contract” or the term “Material Government Contract”) at and as of the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (giving effect to the applicable exceptions set forth in the Disclosure Schedules but without regard and without giving effect to any qualifiers or exceptions as to “materiality,” “Material Adverse Effect,” or other similar qualifications contained in or applicable to such representations and warranties, other than the term “Company Material Contract” or the term “Material Government Contract”) has not been any material adverse change had, and would not reasonably be expected to have, individually or in the businessaggregate, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.a Material Adverse Effect; (b) The Company shall have performed and complied with in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Securities Purchase Closing; (c) The Merger shall have been approved, and this Agreement shall have been adopted, by the written consent the stockholders of the Company holding at least ninety percent (90%) of the issued and outstanding shares of Common Stock in accordance with the DGCL and the Organizational Documents (the “Stockholder Approval”); (d) The applicable waiting periods, if any, under the HSR Act with respect to the transactions contemplated hereby shall have expired or been terminated; (e) the BlueCielo RUS Carveout shall have been consummated; (f) No judgment, decree or order from any Governmental Entity shall have been entered which would prevent the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded; (g) The Company shall have delivered to the Parent each of the following: (i) a certificate of the Chief Executive Officer or Chief Financial Officer of the Company in his or her capacity as such, dated as of the Closing Date, stating that the conditions specified in Sections 8.01(a) and 8.01(b) have been satisfied; (ii) certified copies of resolutions approved by the stockholders of the Company evidencing the Stockholder Approval, substantially in the form attached hereto in Exhibit M (the “Written Consent”); (iii) evidence reasonably satisfactory to the Parent that the portion of the Restructuring described in Section 6.04(a) has been completed in accordance with this Agreement; (iv) to the extent completed prior to the Securities Purchase Closing, evidence reasonably satisfactory to the Parent of completion of any portion of the Restructuring described in Section 6.04(b) (it being agreed that no such step is a condition to the Securities Purchase Closing or Merger Closing); and (v) a duly executed certificate, in form and substance as prescribed by Treasury Regulations promulgated under Code Section 1445, stating that the Company is not, and has not been, during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code; (h) The Escrow Agreement shall have been executed and delivered by the parties thereto (other than the Parent); (i) The Paying Agent Agreement shall have been executed and delivered by the parties thereto (other than the Parent); and (j) With respect to all Indebtedness of the type referred to in clause (a) of the definition of Indebtedness, the Company shall have received and provided Parent with the Payoff Letters. 8.02 Conditions to the Company’s Obligations. The obligations of Xxxxx the Company to (and to cause the Securities Sellers to) consummate the transactions contemplated by this Agreement shall be is subject to the fulfillmentsatisfaction (or, if permitted by applicable Law, waiver by the Company and the Seller Representative in writing) of the following conditions as of the Closing Date: (a) (i) The Parent Fundamental Representations shall be true and correct in all material respects at and as of the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date) and (ii) all other representations and warranties contained in Article V of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) at and as of the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect; (b) The Parent and the Merger Sub shall have performed and complied with in all material respects all the covenants and agreements required to be performed by them under this Agreement at or prior to the Securities Purchase Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx):; (ic) nStor The Stockholder Approval shall have performed all of its obligations and complied been obtained; (d) The applicable waiting periods, if any, under the HSR Act with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior respect to the Closing Date.transactions contemplated hereby shall have expired or been terminated; (iie) nStor No judgment, decree or order from any Governmental Entity shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for been entered which would prevent the consummation of any of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of declare unlawful the transactions contemplated by this AgreementAgreement or cause such transactions to be rescinded; (f) The Parent shall have delivered to the Company a certificate of an authorized officer of the Parent and the Merger Sub in his or her capacity as such, dated as of the Closing Date, stating that the preconditions specified in Sections 8.02(a) and 8.02(b) have been satisfied; (g) The Escrow Agreement shall have been executed and delivered by the Parent and the Escrow Agent; and (h) The Paying Agent Agreement shall have been executed and delivered by the Parent and the Paying Agent.

Conditions to Closing. (a) nStorConditions to Seller's obligation Obligations. The obligations of Seller to consummate the transactions contemplated by this Agreement be performed hereunder shall be subject to the fulfillment, satisfaction (or waiver by Seller) at or prior to Closing, the Closing Date of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions: (i) Xxxxx Purchaser's representations and warranties contained in this Agreement shall be true and correct in all respects on and as of the date of this Agreement. (ii) Purchaser shall have performed all of the obligations and complied with all of the covenants agreements, obligations and conditions required by this Agreement to be performed or to be complied with by them under this Agreement it on or prior to the Closing DateClosing. (iiiii) Xxxxx Seller's stockholders shall have delivered approved the sale of the Assets to nStor Purchaser. (iv) No Litigation shall be threatened or pending against Seller before any and all approvalscourt or governmental agency that, consents in the reasonable opinion of counsel for Seller, could result in the restraint or assignments to be obtained by Xxxxx and necessary for prohibition of Seller in connection with this Agreement or the consummation of the transactions contemplated hereby. (iiiv) nStor and its accountants, attorneys and other representatives Purchaser shall have had full delivered to Seller a certificate signed by a duly authorized officer of Purchaser certifying that the conditions set forth in Sections 6(a)(i) and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco(ii) have been satisfied. (ivvi) nStor Seller shall have received obtained a general release in favor of Seller from each of the nStor Financing on counter-parties to the Contracts listed in Schedule 1(c). (b) Conditions to Purchaser's Obligations. Each of the obligations of Purchaser to be performed hereunder shall be subject to the satisfaction (or waiver by Purchaser) at or prior to the Closing Date.Date of each of the following conditions: (vi) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation Seller's representations and warranty of Xxxxx warranties contained in this Agreement shall be true and correct both at the date in all respects on which this Agreement is signed and at and as of the Closing Date as if made anew at and as date of such timethis Agreement. (viiiii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Seller shall have performed all of its obligations and complied with all of its covenants agreements, obligations, and conditions required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing DateClosing. (iiiii) nStor No Litigation shall have delivered to Xxxxx be threatened or pending against Purchaser before any and all approvalscourt or governmental agency that, consents in the reasonable opinion of counsel for Purchaser, could result in the restraint or assignments to be obtained by nStor and necessary for prohibition of Purchaser in connection with this Agreement or the consummation of the transactions contemplated hereby. (iiiiv) There Seller shall have delivered to Purchaser a certificate signed by an authorized officer of Seller certifying that the conditions set forth in Sections 6(b)(i) and (ii) have been satisfied. (v) RoadRunner shall be an ongoing customer of Seller, and Seller shall not have been institutedreceived any form of notice from RoadRunner that Roadrunner intends to terminate its relationship with Seller or that Roadrunner does not intend to continue such relationship with Purchaser following the Closing Date, pending or threatened against Andataco, Xxxxx, nStor that RoadRunner has changed materially or intends to change materially the amount of business that it does with Seller or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any amount of business that it would do with Purchaser following the transactions contemplated by this AgreementClosing Date.

Conditions to Closing. (a) nStor's obligation Section 4.1 Conditions to consummate the transactions contemplated by this Agreement shall be Buyer’s Obligations to Effect the Closing. The obligations of the Buyer to purchase, acquire and accept the Purchased Revenue Rights on the Closing Date are subject to the fulfillmentsatisfaction or waiver, at or prior to Closingthe Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):precedent: (ia) Xxxxx Forest shall have performed and complied in all of the material respects with all agreements, covenants, obligations and complied with all of the covenants conditions required to be performed or to be and complied with by them it under this Agreement at or prior to the Closing Date, and the Buyer shall have received a certificate executed by a duly authorized officer of Forest on or prior to the Closing DateDate certifying on behalf of Forest to the effect of the foregoing. (iib) Xxxxx The representations and warranties of Forest contained in Section 3.1 shall have delivered to nStor any be true and correct in all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation material respects as of the transactions contemplated hereby. Closing Date as though made at and as of such date, except to the extent any such representation or warranty expressly speaks as of a particular date, in which case it shall be true and correct in all material respects as of such date; provided, that to the extent that any such representation or warranty is qualified by the term “material,” such representation or warranty (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andatacoas so written, including financial the term “material”) shall be true and operating data correct in all respects as of the Closing Date or such other date, as applicable, and other information regarding Xxxxx and Andataco. (iv) nStor the Buyer shall have received the nStor Financing a certificate executed by a duly authorized officer of Forest on or prior to the Closing DateDate certifying on behalf of Forest to the effect of the foregoing. (vc) There shall not have been institutedissued and be in effect any Judgment of any Governmental Entity enjoining, pending preventing or threatened against Andataco, Xxxxx, nStor or restricting the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viiid) There has shall not have been instituted or be pending any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated action or proceeding by this Agreement shall be subject to the fulfillment, at any Governmental Entity or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): other Person (i) nStor shall have performed all of its obligations and complied with all of its covenants required challenging or seeking to be performed make illegal, to delay materially or otherwise directly or indirectly to be complied with by it under this Agreement on restrain or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for prohibit the consummation of the transactions contemplated hereby, (ii) seeking to obtain material damages in connection with the transactions contemplated hereby, or (iii) seeking to restrain or prohibit the Buyer’s receipt of the Revenue Streams or any portion thereof. (iiie) The Buyer shall have received the closing certificate from Forest as provided by Section 2.1(e). (f) The Revenue Rights Condition shall have been satisfied. (g) The Merger shall have been consummated without giving effect to any Unapproved Modification. (h) The Seller shall have delivered to the Buyer the Xxxx of Sale contemplated by Section 2.1(g) effecting the assignment of the Takeda Revenue Stream and shall have delivered to the Buyer a direction letter, in substantially the form attached hereto as Exhibit D-1. (i) The Seller shall have delivered to the Buyer the Xxxx of Sale contemplated by Section 2.1(g) effecting the assignment of the Priligy® BC Revenue Stream and, if the Priligy® BC Consent has been obtained, shall have delivered to the Buyer a direction letter, in substantially the form attached hereto as Exhibit D-2, duly executed by the Transferors. (j) If the Priligy® Xiamen Consent has been obtained, the Seller shall have delivered to the Buyer the Xxxx of Sale contemplated by Section 2.1(g) effecting the assignment of the Xiamen Revenue Stream and a direction letter in substantially the form attached hereto as Exhibit D-3, duly executed by the Transferors. (k) Furiex shall have repaid all indebtedness under, and terminated, (i) the Second Amended and Restated Loan and Security Agreement, dated as of September 30, 2013, by and between Midcap Funding III, LLC, the lenders identified on Schedule 1 attached thereto, the Company and the Pledged Subsidiaries, as amended by that certain First Amendment to Second Amended and Restated Loan and Security Agreement, dated as of October 23, 2013, and the other Loan Documents (as defined therein) entered into in connection therewith, and (ii) the Loan and Security Agreement, dated as of September 30, 2013, by and between the Company, the Pledged Subsidiaries and the Xxxxxxx Xxxxxxx Xxxxxxxx Revocable Trust u/a dated July 13, 1988, as amended and/or restated, as amended by that certain First Amendment to Loan and Security Agreement, dated as of October 23, 2013, and the other Loan Documents (as defined therein) entered into in connection therewith; and shall have taken all necessary action to terminate any security interests granted under either such agreement (including filing a UCC termination statement with respect to any UCC financing statement previously filed). (l) Forest shall have delivered to the Buyer one or more opinions of its counsel, dated as of the Closing Date, addressing the matters set forth in Exhibit F. Section 4.2 Conditions to Forest’s and the Transferors’ Obligations to Effect the Closing. The obligations of Forest and the Transferors to sell, transfer, assign and convey the Purchased Revenue Rights on the Closing Date are subject to the satisfaction or waiver, at or prior to the Closing Date of the following conditions precedent: (a) The Buyer shall have performed and complied in all material respects with all agreements, covenants, obligations and conditions required to be performed and complied by it under this Agreement at or prior to the Closing Date, and Forest and the Seller shall have received a certificate executed by a duly authorized representative of the Buyer on the Closing Date certifying on behalf of the Buyer to the effect of the foregoing. (b) The representations and warranties of the Buyer contained in Section 3.2 shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of a particular date, in which case it shall be true and correct in all material respects as of such date; provided, that to the extent that any such representation or warranty is qualified by the term “material,” such representation or warranty (as so written, including the term “material”) shall be true and correct in all respects as of the Closing Date or such other date, as applicable, and Forest and the Seller shall have received a certificate executed by a duly authorized officer of the Buyer on the Closing Date certifying on behalf of the Buyer to the effect of the foregoing. (c) There shall not have been institutedissued and be in effect any Judgment of any Governmental Entity enjoining, pending preventing or threatened against Andataco, Xxxxx, nStor or restricting the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated by this Agreement. (d) There shall not have been instituted or be pending any action or proceeding by any Governmental Entity or any other Person (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the transactions contemplated hereby, (ii) seeking to obtain material damages in connection with the transactions contemplated hereby, or (iii) seeking to restrain or prohibit the Buyer’s receipt of the Revenue Streams. (e) Forest and the Transferors shall have received the closing certificate from the Buyer as provided by Section 2.1(f).

Conditions to Closing. (a) nStor's obligation Section 6.1 The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law. a. The obligations of US WIRELESS to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law: (i) Xxxxx shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx MJS contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. US WIRELESS shall have received a certificate of the principal executive officer of MJS to such effect. (viiiii) There has not been any MJS shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions of Andataco from and after the date Closing. US WIRELESS shall have received a certificate of the 1998 10-K until the Closing Dateprincipal executive officer of MJS to such effect. (b) b. The obligations of Xxxxx MJS to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by Xxxxx):applicable law: (i) nStor Each of the representations and warranties of US WIRELESS contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. MJS shall each have received a certificate of the principal executive officer of US WIRELESS to such effect. (ii) US WIRELESS shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Closing. MJS shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate of the transactions contemplated herebyprincipal executive officer of US WIRELESS to such effect. (iii) There US WIRELESS shall not appoint Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx to senior management positions of US WIRELESS. (iv) US WIRELESS shall memorialize a Performance Based Bonus agreement with the Shareholders of MJS according to the terms outlined in the letter of intent among the parties dated October 20, 2004. (v) US WIRELESS shall put into effect thirty-six month Employment Contracts for Xxxxxx X. Xxxxx and Xxxxxxx Xxxxxxx. (vi) MJS shall have been instituted, pending or threatened against Andataco, Xxxxx, nStor or received the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking consent to restrain or prohibit any this Agreement from one hundred percent (100%) of its shareholders. (vii) US WIRELESS shall deliver to MJS a certified copy of its shareholder list dated as of the transactions contemplated by closing, and a copy of its instruction letter to its transfer agent authorizing the issuance of the shares to be issued pursuant to this Agreement.

Conditions to Closing. (a) nStor's obligation 6.1 Conditions to consummate Obligations of Purchaser to Effect the Closing. The obligations of the Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the fulfillment, satisfaction at or prior to the Closing, of each of the following conditions precedent (conditions, any or all of which may be waived waived, in writing, in whole or in part, by nStor):the Purchaser: (ia) Xxxxx The representations and warranties of the Seller in Article III hereof shall be true and correct in all material respects, except that any such representations and warranties that are given as of a specified date and relate solely to a specified date or period shall be true and correct in all material respects only as of such date or period; (b) The Seller shall have performed in all of the obligations material respects all covenants and complied with all of the covenants agreements required to be performed or to be complied with by them it under this Agreement on or prior to the Closing Date; and (c) The Consolidation shall have become effective. (ii) Xxxxx shall have delivered 6.2 Conditions to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation Obligations of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours Seller to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received Effect the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) Closing. The obligations of Xxxxx the Seller to consummate effect the Closing and the transactions contemplated by this Agreement shall be subject to the fulfillment, satisfaction at or prior to the Closing, of each of the following conditions precedent (conditions, any or all of which may be waived waived, in writing, in whole or in part, by Xxxxx):the Seller: (ia) nStor The representations and warranties of the Purchaser in Article IV hereof shall be true and correct in all material respects, except that any such representations and warranties that are given as of a specified date and relate solely to a specified date or period shall be true and correct in all material respects only as of such date or period; (b) The Purchaser shall have performed in all of its obligations material respects all covenants and complied with all of its covenants agreements required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (iic) nStor The Consolidation shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebybecome effective. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's 7.1. Obligations of Investor with respect to the Closing. The obligation of Investor to consummate the transactions contemplated to occur at the Closing is subject to the satisfaction (or waiver by Investor) as of the Closing of the following conditions: 7.1.1. The representations and warranties of the Company set forth in this Agreement and in the Ancillary Agreements to which it is a party qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date) and Investor shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of the Company. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement shall be subject and the Ancillary Agreements to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required it is a party to be performed or to be complied with by them under this Agreement on or prior to the Closing DateCompany by the time of the Closing. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) 7.1.2. There shall not have been instituted, be threatened or pending or threatened against Andataco, Xxxxx, nStor or the Company by any Governmental Authority any suit, action or other proceeding proceeding, and there shall not be pending by any private party other person any suit, action or governmental agencyproceeding, commissionwhich has a substantial likelihood of success, bureau or body (i) seeking to restrain or prohibit the purchase and sale of the Newly Issued Shares or the Class B Stock pursuant to the Offer, (ii) seeking to compel the Company to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or to compel Investor or its subsidiaries to dispose of or hold separate any material portion of the business or assets of Investor and its subsidiaries, as a result of any of the transactions contemplated by this Agreement or the Ancillary Agreements or (iii) seeking to prohibit Investor from effectively exercising any of its material rights under this Agreement or any Ancillary Agreement. (vi) X. Xxxxx 7.1.3. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of any of the transactions contemplated hereby or by the Ancillary Agreements or having any of the other consequences described in Section 7.1.2 shall be in effect. 7.1.4. The Amended Bylaws shall have entered into Employment Agreement as provided for in Section 3(a) hereofbeen duly authorized, approved and effected. 7.1.5. The Company shall have furnished to Investor an opinion of John X. Xxxxxx, Xx., Xxnior Vice President and General Counsel of the Company, in the form attached hereto as Exhibit C. 7.1.6. During the period from the date of this Agreement until the Closing Date, neither the Company nor any subsidiary shall have sold or otherwise disposed of (viior authorized, committed or agreed to sell or otherwise dispose of), in a single transaction or in a series of transactions, excluding sales of inventory or other assets in the normal course of business, any business or assets relating to the Primary Business of the Company that constitute more than five percent of the total consolidated assets of the Company as shown on the Company's consolidated balance sheet as of the end of the most recent fiscal quarter ending prior to the time the determination is made, whether such sale or disposition be by merger or consolidation or the sale of stock or assets or otherwise. 7.2. Obligations of the Company with respect to the Closing. The obligation of the Company to consummate the transactions contemplated to occur at the Closing is subject to the satisfaction (or waiver by the Company) Each representation as of the Closing of the following conditions: 7.2.1. The representations and warranty warranties of Xxxxx contained Investor set forth in this Agreement and in the Ancillary Agreements qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct both at in all material respects, as of the date on which this Agreement is signed and at hereof and as of the time of the Closing Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such time. (viiiearlier date) There has not been any material adverse change in and the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until Company shall have received a certificate to such effect dated the Closing Date. (b) The Date and executed by a duly authorized officer of Investor. Investor shall have performed or complied in all material respects with all obligations of Xxxxx to consummate the transactions contemplated and covenants required by this Agreement shall be subject to and the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required Ancillary Agreements to be performed or to be complied with by it under this Agreement on or prior to Investor by the Closing Datetime of the Closing. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) 7.2.2. There shall not have been instituted, be threatened or pending or threatened against Andataco, Xxxxx, nStor or the Company by any Governmental Authority any suit, action or other proceeding and there shall not be pending by any private party other person any suit, action or governmental agencyproceeding, commissionwhich has a substantial likelihood of success, bureau or body (i) seeking to restrain or prohibit the purchase and sale of the Newly Issued Shares or the Class B Stock pursuant to the Offer, (ii) seeking to compel the Company to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or to compel Investor or its subsidiaries to dispose of or hold separate any material portion of the business or assets of Investor and its subsidiaries, as a result of any of the transactions contemplated by this Agreement or the Ancillary Agreements or (iii) seeking to prohibit the Company from effectively exercising any of its material rights under this Agreement or any Ancillary Agreement. 7.2.3. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent inunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of any of the transactions contemplated hereby or by the Ancillary Agreements or having any of the other consequences described in Section 7.2.2 shall be in effect. 7.2.4. The Offer shall have expired and Investor shall have purchased or accepted for payment and purchase any Class B Stock which it will acquire pursuant to the Offer. 7.2.5. Investor shall have furnished to the Company an opinion of Franx X. Xxxxx, Xxsistant General Counsel of Investor, in the form attached hereto as Exhibit D.

Conditions to Closing. (a) nStor's The obligation of CBQ to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any at or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to before the Closing Date.: (iia) Xxxxx shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by Xxxxx warranties set forth in Article II and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement Article III hereof shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if though then made anew at and as though the Closing Date had been substituted for the date of this Agreement throughout such time. representations and warranties (viii) There has not been without taking into account any material adverse change in disclosures by the businessCompany of discoveries, operations and financial conditions of Andataco from and events or occurrences arising on or after the date of the 1998 10-K until the Closing Date.hereof); (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed in all material respects all of its obligations the covenants and complied with all of its covenants agreements required to be performed or to be and complied with by it under this Agreement on or prior to the Closing Date.; (iic) nStor The Company and Sellers shall have obtained, or caused to be obtained, each consent and approval necessary in order that the transactions contemplated herein not constitute a breach or violation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the Company's assets pursuant to the provisions of, any agreement, arrangement or undertaking of or affecting the Company or any license, franchise or permit of or affecting the Company; (d) This Agreement shall have been duly and validly authorized by the Board of Directors and by the shareholders of the Company, and the Company shall have delivered to Xxxxx any CBQ evidence, in form satisfactory to CBQ's counsel, of such authorization and all approvalsapproval; (e) All material governmental filings, consents or assignments to be obtained by nStor authorizations and necessary approvals that are required for the consummation of the transactions contemplated by this Agreement will have been duly made and obtained; (f) There shall not be threatened, instituted or pending any action or proceeding, before any court or governmental authority or agency, domestic or foreign, (i) challenging or seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of the transactions contemplated hereby or seeking to obtain material damages in connection with such transactions, (ii) seeking to prohibit direct or indirect ownership or operation by CBQ of all or a material portion of the business or assets of the Company and Company Subsidiaries, or to CBQ or the Company to dispose of or to hold separately all or a material portion of the business or assets of CBQ or of the Company, as a result of the transactions contemplated hereby., (iii) seeking to require direct or indirect transfer or sale by CBQ of any of the shares of Company Common Stock, (iv) seeking to invalidate or render unenforceable any material provision of this Agreement or any of the other agreements attached as exhibits hereto (collectively, the "Related Agreements"), or (v) otherwise relating to and materially adversely affecting the transactions contemplated hereby; (g) There shall not be any action taken, or any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, issued or deemed applicable to the transactions contemplated hereby by any federal, state or foreign court, government or governmental authority or agency, which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 8.04(f) hereof; (h) Between the date of this Agreement and the Closing Date, there shall not have occurred any change with respect to the business, assets, properties, condition (financial or otherwise), results of operations or prospects of the Company which is, individually or in the aggregate with other such facts and circumstances, materially adverse to the Company or to the value of the shares of Company Common Stock; (i) There shall have been no damage, destruction or loss of or to any property or properties owned or used by the Company, whether or not covered by insurance, which, in the aggregate, has, or would be reasonably likely to have, a material adverse effect on the Company; (j) [intentionally omitted]; (k) Prior to the Closing Date, the Company shall have delivered to CBQ all of the following: (i) certificates of Xxxx Xxxxx and Xxxxxxx X. Xxxxxxxxxx, substantially in the form set forth in Exhibit 8.01(k)(i) attached hereto, dated as of the date of the Closing Date, stating that the conditions precedent set forth in subsections (a) and (b) above have been satisfied; (ii) copies of the third party and governmental consents and approvals and of the authorizations referred to in subsections (c), (d) and (e) above; (iii) There the Company's minute books, stock transfer records, corporate seal and other materials related to the Company's corporate administration; (iv) resignations (effective as of the Closing Date) from such of the Company's directors and/or officers as CBQ shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or requested prior to the Closing Date; (v) a copy of the Articles of Incorporation of the Company any suitand Company Subsidiaries, action or other proceeding certified by any private party or governmental agencythe Department of Assessment and Taxation for the State of Maryland (the "MDAT"), commissionand Certificates of Good Standing from the MDAT; (vi) a copy of each of the text of the resolutions adopted by the board of directors of the Company authorizing the execution, bureau or body seeking to restrain or prohibit any delivery and performance of this Agreement and the consummation of all of the transactions contemplated by this AgreementAgreement and the bylaws of the Company; along with certificates executed on behalf of the Company by its corporate secretary certifying to CBQ that such copies are true, correct and complete copies of such resolutions and bylaws, respectively, and that such resolutions and bylaws were duly adopted and have not been amended or rescinded; (vii) such other certificates, documents and instruments as CBQ reasonably requests related to the transactions contemplated hereby; and (viii) a copy of shareholder investor letters from each Company shareholder.

Conditions to Closing. The obligation of WHEN to effect the transaction shall be subject to the fulfillment at or prior to the Closing of the following conditions, unless waived by WHEN: (a) nStor's obligation each representation, warranty and covenant of the Company and the Company Shareholders is true and correct at the Closing as if made on and as of the Closing and at or prior to consummate the Closing, and the Company and the Company Shareholders shall have delivered to WHEN a certificate to that effect signed by an officer of the Company and the Company Shareholders, respectively; (b) each of the Company and the Company Shareholders shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing, and the Company and the Company Shareholders shall have delivered to WHEN a certificate to that effect signed by an officer of the Company and the Company Shareholders, respectively; (c) from the date of this Agreement through the Closing, there shall not have occurred any change, circumstance or event concerning the Company that has had or could be reasonably likely to have a material adverse effect on the Company; (d) no Law or any temporary restraining order, preliminary or permanent injunction or other judgment issued by, any Governmental Authority shall be in effect having the effect of making the transactions contemplated by this Agreement shall be subject to the fulfillmentillegal or otherwise prohibiting consummation thereof or imposing, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole individually or in partthe aggregate, by nStor): a burdensome condition (icollectively, “Legal Restraints”) Xxxxx and (ii) no Governmental Authority shall have performed all of the obligations and complied with all of the covenants required to instituted any action or proceeding (which remains pending at what would otherwise be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered seeking to nStor any and all approvalstemporarily or permanently enjoin, consents restrain or assignments to be obtained by Xxxxx and necessary for the otherwise prohibit consummation of the transactions contemplated herebyhereby or impose a Legal Restraint. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. 5.1 Conditions of the Investor’s Obligations at the Initial Closing. The obligations of the Investor to purchase from the Company the Initial Note and to consummate the transactions to be consummated at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions, any of which may be waived in writing in whole or in part by the Investor: (a) nStor's obligation The Company and the Investor shall have executed and delivered the License Agreement and the Security Agreement. (b) The representations and warranties of the Company contained herein shall be true and correct on and as of the Initial Closing Date with the same force and effect as though made on and as of the Initial Closing Date (it being understood and agreed that, in the case of any representation and warranty of the Company contained herein that is made as of a specific date, such representation and warranty need be true and correct only as of such specific date and it being further understood and agreed that, in the case of any representation and warranty of the Company contained herein that is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to consummate satisfy as to such representation and warranty the condition precedent set forth in the foregoing provision of this Section 5.1(b)). (c) The Company shall have performed in all material respects all obligations, agreements, covenants and conditions herein required to be performed or observed by the Company under this Agreement, the License Agreement and the Security Agreement on or prior to the Initial Closing Date. No event shall have occurred that (with or without the delivery of notice or passage of time) may result in the termination of this Agreement or the License Agreement or an Event of Default (as defined in the Security Agreement) under the Security Agreement, which event shall not have been cured (if capable of being cured) within the time period specified in the applicable agreement. (d) The Investor shall have received a certificate, dated the Initial Closing Date, signed by an executive officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 5.1(b) and (c) have been fulfilled. (e) No order enjoining or restraining the transactions contemplated by this Agreement or the License Agreement shall be subject to the fulfillment, at in effect and no action or prior to Closing, of each of the following conditions precedent (proceeding before any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx Governmental Authority shall have performed all of been instituted or pending that challenges the obligations and complied with all of acquisition of, or payment for, the covenants required to be performed Initial Note by the Investor or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking otherwise seeks to restrain or prohibit any consummation of the transactions contemplated by this Agreement or the License Agreement or seeking to impose any limitations on any provisions of this Agreement or the License Agreement. (vif) X. Xxxxx The Investor shall have entered into Employment Agreement received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, an opinion, dated as provided of the Initial Closing Date, in form and substance reasonably satisfactory to counsel for the Investor, to substantially the effect set forth in Section 3(a) hereofExhibit B hereto. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bg) The obligations of Xxxxx to consummate the transactions contemplated by this License Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Effective Date shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Dateoccurred. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation In addition to consummate the conditions set forth in Section 8.01 hereof, the consummation by the Elan Entities of the transactions contemplated by this Agreement shall be hereby is expressly subject to the fulfillmentfollowing conditions, at or prior to Closing, of each of the following conditions precedent (any or all of which may be unless waived in writing, in whole or in part, writing by nStor):Elan: (i) Xxxxx shall have performed all Each and every warranty and representation of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx NOVA contained in this Agreement shall be true and correct both at as of the date on which this Agreement is signed and at when made and as of the Closing Date as if though made anew on the date thereof, and an executive officer of NOVA shall deliver a certificate to Elan at and the Closing certifying as such (the "NOVA Closing Certificate", the form of such time.which is attached as EXHIBIT 8.02(a)); (viiiii) There has not been any NOVA shall have performed and complied in all material adverse change in respects with each and every agreement, covenant and obligation required by this Agreement to be performed or complied with by it at or prior to the business, operations and financial conditions of Andataco from and after Closing; and (iii) NOVA shall have made the date of the 1998 10-K until the Closing Datedeliveries contemplated by Section 8.04 hereof. (b) The obligations In addition to the conditions set forth in Section 8.01 hereof, the consummation by NOVA of Xxxxx to consummate the transactions contemplated hereby is expressly subject to the following conditions, unless waived in writing by NOVA: (i) Each and every warranty and representation of the Elan Entities contained in this Agreement shall be subject true and correct as of the date when made and as of the Closing as though made on the date thereof, and an executive officer of Elan shall deliver a certificate to NOVA at the fulfillmentClosing certifying as such (the "Elan Closing Certificate", the form of which is attached as EXHIBIT 8.02(b)); (ii) Elan shall have performed and complied in all material respects with each and every agreement, covenant and obligation required by this Agreement to be performed or complied with by it at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.; and (iii) There The Elan Entities shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or made the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions deliveries contemplated by this AgreementSection 8.03 hereof.

Conditions to Closing. Section 7.1. Conditions to the Parent's Obligations. The obligations of the Parent to effect the transactions contemplated hereby shall be subject to the following conditions any one or more of which may be waived in writing by the Parent in whole or in part: (a) nStor's obligation Each of the representations and warranties of the Advisors and Equityholders set forth in this Agreement, any Related Agreement or any Schedule, Exhibit or Annex hereto or thereto shall be true and correct in all material respects as of the date of this Agreement and (except to consummate the extent any such representation or warranty speaks as of or is limited to an earlier date) as of the Closing Date as though made on and as of the Closing Date; provided, however, that solely for purposes of determining the satisfaction of the conditions contained in this Section 7.1(a) and not for purposes of determining liability under Section 8 hereof or otherwise, no effect shall be given to any exception in such representations and warranties relating to knowledge, materiality, or a Material Adverse Effect, and such representations and warranties shall be deemed to be true, correct and complete in all material respects if and only if the failures of such representations and warranties to be so true, correct and complete without regard to knowledge, materiality, and Material Adverse Effect exceptions do not represent in the aggregate a Material Adverse Effect; (b) The Equityholders and Advisors shall have performed and complied in all material respects with all agreements, covenants, obligations and conditions required by this Agreement, any Related Agreement or any Schedule, Exhibit or Annex hereto or thereto to be performed or complied with by them at or prior to the Closing Date; (c) Each Advisor and Equityholder shall have delivered to the Parent a certificate dated as of the Closing Date, confirming the satisfaction of the conditions contained in Sections 7.1(a) and 7.1(b) to the extent that the agreements, covenants, obligations and conditions referred to in such Sections are made by the respective Advisor or Equityholder; (d) Each Advisor shall have obtained from each of its clients any necessary consent or approval in accordance with Section 6.2 hereof; (e) Each of the Employment Agreements shall be in full force and effect without any breach thereof by the individual party thereto; (f) No requisite regulatory approval shall impose any term, condition or restriction upon the Parent or any of its Affiliates that the Parent reasonably determines would so materially adversely affect the economic or business benefits of the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior Parent as to Closing, of each render inadvisable in the reasonable good faith judgment of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for Parent the consummation of the transactions contemplated hereby.; (iiig) nStor The dollar-weighted average total return net of fees and its accountantsexpenses of the net assets under management by the Advisors for the period from January 1, attorneys 1998 through the Closing shall not be worse than -5.0% and other representatives no event shall have occurred since December 31, 1997 which has had full and complete access during normal business hours or could reasonably be expected to all officeshave, facilitiesindividually or in the aggregate with any other event, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.a Material Adverse Effect; (ivh) nStor As of the Closing Date the assets under management by the Advisors under fee and profit allocations comparable or better to those in effect with the respective clients of the Advisors as of December 31, 1997 shall not be less than $220 million; (i) The Parent shall have received the nStor Financing on or prior opinion of counsel to the Equityholders and Advisors dated the Closing Date.Date in form and substance reasonably acceptable to Parent as to the matters set forth on Exhibit 7.1(i) hereto; (vj) There The Parent shall not have been institutedreceived evidence that Jonaxxxx Xxxxxx, pending Rogex Xxxxxxx xxx Danixx Xxxxx xxx insurable with respect to key-man life insurance policies; (k) Each Equityholder shall have duly executed and delivered to LLC-1 or threatened against AndatacoLLC-2 as the case may be the Employment Agreement to be entered into pursuant to Section 2.2 hereof; (l) Each Equityholder and Advisor shall have duly executed and delivered to Parent each LLC Agreement to which such Equityholder or Advisor is a party, Xxxxx, nStor or as indicated on the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any signature pages of the Exhibits 2.4(a) and 2.4(b) hereto; and (m) The transactions contemplated by this Agreement. (vi) X. Xxxxx the Transfer Agreements referred to in Section 2.3 hereof shall have entered into Employment Agreement as provided for in Section 3(a) hereofbeen consummated. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor5.1 Conditions to the Purchasers' and the Company's obligation Obligations. The obligations of a Purchaser to consummate purchase and of the transactions contemplated by this Agreement shall be Company to issue and sell the Shares are subject to the fulfillment, at on or prior to the Closing, of each all of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole or in part, part by nStor):mutual agreement of such Purchaser and the Company: (ia) Xxxxx The Company shall have performed obtained all consents, permits and waivers necessary or appropriate on the part of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary Company for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement, the Rights Agreement, the Voting Agreement and the Co-Sale Agreement at such Closing. Except for the notices required to be filed after such Closing with certain federal and state securities commissions, which notices the Company will file on a timely basis, the Company shall have obtained all approvals of any federal or state governmental authority or regulatory body that are required on the part of the Company in connection with the lawful sale and issuance of the Shares and the Common Stock issuable upon conversion of the Shares at such Closing. (vib) X. Xxxxx At such Closing, the purchase of the Shares by the Purchasers hereunder shall be legally permitted by all laws and regulations to which the Purchasers or the Company is subject. (c) The Restated Certificate shall have been filed with and accepted by the Secretary of State of the State of Delaware. (d) The Company and the Purchasers shall have entered into Employment the Rights Agreement, the Voting Agreement as provided for and the Co-Sale Agreement. 5.2 Additional Conditions to the Purchasers' Obligations. In addition to the conditions set forth in Section 3(a) 51 hereof., each Purchaser's obligation to purchase the Shares is subject to the fulfillment, on or prior to the Closing, of all of the following conditions (except as otherwise provided below), any of which may be waived in whole or in part by such Purchaser: (viia) Each representation The representations and warranty of Xxxxx contained warranties made by the Company in this Agreement Section 3 hereof shall be true and correct both at when made, and shall be true and correct as of the date Closing with the same force and effect as if they had been made on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed all of its obligations and complied with all of its covenants conditions herein required to be performed or to be complied with observed by it under this Agreement on or prior to the Closing DateClosing. (iic) nStor Effective upon the Closing, the Board of Directors shall have delivered to consist of six (6) directors, consisting of Xxx Xxxx, Xxxx Xxxxxx, Xxxxx any and all approvalsXxxxxxxx, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been institutedXxxxxxx Xxxxxx, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.Xxxxxxx X.

Conditions to Closing. (a) nStor's The obligation of each party to this Agreement to consummate the transactions contemplated by this Agreement purchase and sale of Initial Shares at the Closing shall be subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions: (iii) Xxxxx No temporary restraining order, preliminary or permanent injunction or other order issued by any Governmental Authority or other legal or regulatory restraint or prohibition preventing the issuance and sale of the Shares shall have delivered be in effect. There shall be no action, suit or other proceeding pending in or before any Governmental Authority or arbitration tribunal against or involving either the Company or the Purchaser that in any manner challenges or seeks to nStor any and all approvalsprevent, consents enjoin, alter or assignments to be obtained by Xxxxx and necessary for materially delay the consummation of the transactions contemplated hereby.to occur at the Closing and the enforceability of the rights and obligations as contemplated by this Agreement, and neither the Company nor the Purchaser (nor any of their respective Affiliates) shall have received notice of any such threatened proceeding; (ii) The issuance of the Shares shall be exempt from the notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976; and (iii) nStor and its accountantsAll other notices, attorneys reports and other representatives shall have had full and complete access during normal business hours filings required to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or be made prior to the Closing Date. (v) There with, and all consents, registrations, approvals, permits and authorizations required to be obtained prior to the Closing from, any Governmental Authority for the issuance and sale of the Shares in accordance with the terms hereof shall not have been instituted, pending made or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for received and remain in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and effect as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing. (b) The obligations obligation of Xxxxx the Company to consummate the transactions contemplated by this Agreement purchase and sale of Shares at the Closing shall be subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.of the following conditions: (i) The Purchaser shall have delivered a certificate of an officer of the Purchaser confirming that the representations and warranties of the Purchaser set forth in Sections 3 and 4 hereof are true and correct as of the date of Closing; and (ii) nStor The Purchaser shall have delivered the Purchase Amount to the Company by wire transfer of immediately available U.S. federal funds. (c) The obligation of the Purchaser to consummate the purchase and sale of Shares at the Closing shall be subject to the satisfaction at or prior to the Closing of the following conditions: (i) Such Shares shall have been accepted for and approved for inclusion and quotation on the Nasdaq; (ii) The Company shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation Purchaser a certificate of the transactions contemplated hereby.chief financial officer of the Company confirming that the representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of Closing; (iii) There The Purchaser shall not have received an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP in the form attached hereto as Exhibit A dated the date of Closing; and (iv) The Company shall have delivered to the Purchaser a stock certificate representing the Shares or in lieu thereof shall have caused a book entry evidencing the Purchaser’s ownership of the Shares to be entered in the books and records of such broker-dealer as shall have been instituted, pending or threatened against Andataco, Xxxxx, nStor or identified by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser for such purpose.

Conditions to Closing. (a) nStorPurchaser's obligation to consummate the transactions contemplated by this Agreement close shall be subject to the fulfillmentsatisfaction, at or prior to in advance of Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):following: (i) Xxxxx All of the representations and warranties of Seller set forth in this contract shall be true and correct in all respects on and as of the date of closing as though made at that time. (ii) Seller shall have performed all of the obligations performed, satisfied and complied with all of the covenants covenants, agreements, and conditions required by this contract to be performed or to be complied with by them under this Agreement it on or prior before the date of Closing, including, without limitation, the completion of the construction of the Improvements in accordance with the Plans and the obtaining of a Certificate of Occupancy for the Improvements. (iii) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature or have been adjudicated as bankrupt or have filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization under the Bankruptcy Act or any other similar law or statute of the United States or any state, and no such petition shall have been filed against it. (b) Seller's obligation to close shall be subject to the Closing Datesatisfaction, in advance of Closing, of the following: (i) All of the representations and warranties of Purchaser set forth in this contract shall be true and correct in all respects on and as of the date of closing as though made at that time. (ii) Xxxxx Purchaser shall have delivered to nStor any performed, satisfied and complied with all approvalsof the covenants, consents or assignments agreements, and conditions required by this contract to be obtained performed or complied with by Xxxxx and necessary for it on or before the consummation date of the transactions contemplated herebyClosing. (iii) nStor Purchaser shall not be in receivership or dissolution or have made any assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature or have been adjudicated as bankrupt or have filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization under the Bankruptcy Act or any other similar law or statute of the United States or any state, and its accountants, attorneys and other representatives no such petition shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacobeen filed against it. (iv) nStor shall have received Purchaser will negotiate an agreement with Seller with terms satisfactory to Purchaser regarding the nStor Financing on or prior leasing of a building currently under construction adjacent to the Closing DateLand which will be used as sales and administration offices. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's a. The obligation of each party to consummate effect the transactions contemplated by this Agreement shall be Exchange Transaction, and to execute and deliver documents, at the Closing is subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions: (i) The Nasdaq Approval shall have been obtained by the Company; (ii) Xxxxx The Shares shall have delivered been approved for listing on Nasdaq, subject to nStor official notice of issuance; (iii) No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the precludes consummation of the transactions contemplated hereby. (iii) nStor and its accountants. No statute, attorneys and other representatives rule, regulation, order, injunction or decree shall have had full and complete access during normal business hours to all officesbeen enacted, facilitiesentered, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.promulgated or enforced by any governmental authority that prohibits or makes illegal this Agreement or the transactions contemplated hereby; and (iv) nStor The Supplemental Indenture shall have received been executed by the nStor Financing on Trustee and shall be in full force and effect. b. The obligation of the Noteholders to effect the Exchange Transaction, and to execute and deliver (or cause to be executed and delivered) documents, at the Closing is subject to the satisfaction at or prior to the Closing Date.of the following conditions: (vi) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the representations and warranties of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for contained in Section 3(a4.d.(i) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement hereof shall be true and correct both at in all respects (other than in respect of de minimis inaccuracies) as of the date of this Agreement, and the representations and warranties of the Company contained in Section 4.d.(ii) hereof shall be true and correct in all material respects on which this Agreement is signed and at and as of the Closing Date date of this Agreement and the date of Closing, with the same force and effect as if though made anew at on and as of such time.date; (viiiii) There has not been any material adverse change the representations and warranties of the Company contained in Section 4 hereof (other than those contained in Section 4.d.(i) and Section 4.d.(ii) hereof) shall be true and correct in all respects on and as of the business, operations date hereof and financial conditions of Andataco from and after the date of Closing, with the 1998 10-K until same force and effect as though made on and as of such date, except (A) to the Closing Date.extent that any representation or warranty is made as of a specified date, in which case such representation or warranty shall be true and correct as of such specified date, and (B) for such failures to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in any individual representation or warranty) that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect; (biii) The obligations the Company shall have delivered a certificate signed on behalf of Xxxxx to consummate the transactions contemplated Company by this Agreement an authorized officer of the Company in the form attached hereto as Exhibit E; (iv) the Company shall be subject have delivered and paid to the fulfillmentNoteholders, at or prior to Closingin accordance with Section 2.a. hereof, of each of the following conditions precedent (any items required to be delivered or all of which may be waived in writing, in whole or in part, paid by Xxxxx):the Company pursuant to Section 2.a.; (iv) nStor the Company shall have performed or complied with, in all of its obligations and complied with all of material respects, its covenants required to be performed or complied with as of the Closing under this Agreement, except for the covenants set forth in Section 2.a. and Section 5.e. (to the extent required to be complied with at or prior to the Closing) hereof which the Company shall have performed and complied with in all respects; (vi) no Material Adverse Effect shall have occurred since the date of this Agreement; provide that, for purposes of this Section 6.b.(vi), none of the following or the effects thereof shall constitute or shall be taken into account in determining whether there has occurred a Material Adverse Effect: (A) changes in general regulatory, political, business or economic conditions that, in each case, generally affect the oil and gas industry (including, without limitation, changes in oil and gas prices); (B) any change in the United States or foreign economies or securities or financial markets in general; (C) the outbreak or escalation of hostilities involving the United States, the declaration by it the United States of a national emergency or war or the occurrence of any acts of terrorism; (D) any change in accounting requirements or principles imposed upon the Company or its businesses by any change in GAAP or any change in applicable laws, or the interpretation thereof; (E) any effect resulting from the announcement of this Agreement; (F) actions taken by any Noteholder or any of their respective Affiliates; (G) any action taken by the Company or any of its Affiliates at the express request or direction of any Noteholder; or (H) any failure by the Company to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period; except, in the cases of clauses (A), (B), (C), and (D) above, to the extent the items described in such clauses affect the Company in a materially disproportionate manner as compared with other Persons engaged in the oil and gas industry in the same geographic areas in which the Company’s primary oil and gas assets are located, in which case such occurrences may be deemed to constitute, and shall be taken into account in determining, whether a Material Adverse Effect has occurred; and (vii) no material Default and no Event of Default that, in either case, has not been cured (with the effect of any such cure being that neither any material Default nor an Event of Default exists after giving effect to any such cure and the agent and lenders under this Agreement on the Credit Facility no longer have, at such time, the right to exercise any remedies under the Credit Facility conditioned upon the occurrence and existence of a Default or Event of Default with respect to such Default or Event of Default) or waived (with the effect of any such waiver being that the agent and lenders under the Credit Facility, after giving effect to any such waiver, no longer have the right to exercise any remedies conditioned upon the occurrence and existence of a Default or Event of Default with respect to such Default or Event of Default) by the agent or lenders (as required by the Credit Facility), under the Credit Facility shall exist. c. The obligation of the Company to effect the Exchange Transaction, and to execute and deliver documents, at the Closing is subject to the satisfaction at or prior to the Closing Date.of the following additional conditions: (i) the representations and warranties of each Noteholder contained in Section 3.a. hereof shall be true and correct in all respects, and all other representations and warranties of each Noteholder contained in Section 3 hereof shall be true and correct in all material respects, on and as of the date hereof and the date of Closing, with the same force and effect as though made on and as of such date; (ii) nStor each Noteholder shall have delivered to Xxxxx any and all approvalsthe Company, consents or assignments in accordance with Section 2.b. hereof, each of the items required to be obtained delivered by nStor and necessary for the consummation of the transactions contemplated herebysuch Noteholder pursuant to Section 2.b.; (iii) There the Noteholder shall not have been instituteddelivered a certificate signed on behalf of each Noteholder by an authorized officer thereof in the form attached hereto as Exhibit F; and (iv) each Noteholder shall have performed or complied with, pending in all material respects, its covenants required to be performed or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any complied with as of the transactions contemplated by Closing under this Agreement, except for the covenants set forth in Section 2.b. hereof which each Noteholder shall have performed and complied with in all respects.

Conditions to Closing. (a) nStor's obligation The obligations of each Party to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwriting by the Party entitled to the benefit thereof, in whole or in part, to the extent permitted by nStor):the applicable law: 3.3.1. No temporary restraining order, preliminary or permanent injunction or other order (whether temporary, preliminary or permanent) issued by any court of competent jurisdiction, or other legal restraint or prohibition shall be in effect which prevents the consummation of the transactions contemplated herein, nor shall any proceeding brought by any Governmental Body seeking any of the foregoing be pending, and there shall not be any action taken, or any law, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated herein illegal. 3.3.2. The representations and warranties of the Seller, the Company and the Purchaser contained herein shall be true and correct in all material respects on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, except for those (i) Xxxxx representations and warranties that are qualified by materiality, which representations and warranties shall be true and correct in all respects and (ii) representations and warranties which address matters only as of a particular date, which representations and warranties shall be true and correct on and as of such particular date. 3.3.3. Each Party shall have performed or complied in all of the obligations and complied material respects with all of the agreements and covenants required by this Agreement and the Collateral Agreements ancillary hereto (collectively, the “Transaction Documents”) to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date, including for the avoidance of doubt, the payment of the First Cash Payment (as defined below). (ii) Xxxxx 3.3.4. Each Party shall have delivered received evidence, in form and substance reasonably satisfactory to nStor it, that any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation approvals of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys Governmental Bodies and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained Third Parties described in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has or otherwise not described but required to have been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx obtained by a Party to consummate the transactions contemplated by this Agreement shall be subject to under the fulfillment, at or prior to Closing, of Transaction Documents have been obtained (each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Datea “Required Approval”). (ii) nStor shall have delivered to Xxxxx any 3.3.5. From and all approvalsafter the Effective Date, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There there shall not have been institutedoccurred any event or occurrence and no circumstance shall exist which, pending alone or threatened against Andatacotogether with any one or more other events, Xxxxxoccurrences or circumstances has had, nStor is having or could reasonably be expected to result in a material adverse effect on the Company, Marathon or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementPurchaser.

Conditions to Closing. (a) nStor's obligation The obligations of the Company and the Unit Holders to consummate the transactions contemplated by this Agreement shall be Transactions are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (conditions, any one ​ ​ or all more of which may be waived in writing, in whole or in part, writing by nStor): (i) Xxxxx shall have performed all mutual consent of the obligations Company and complied with all the Unit Holders holding a majority of the covenants required to be performed or to be complied with by them under Transferred Units: 9.1. the representations and warranties of the Unit Holders contained in Section ‎7 of this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for contained in Section 3(a) hereof. (vii) Each representation and warranty ‎8 of Xxxxx contained in this Agreement shall be true and correct both at in all material respects (except to the extent any such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects as so qualified) as of, and as if made on, the date on which of this Agreement is signed and at and as of the Closing Date Closing, except to the extent any such representation or warranty expressly speaks as if made anew at of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such time.earlier date; (viii) There has not been any material adverse change in 9.2. the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed all of its obligations and complied with all of its covenants covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or to be complied with by it under the Company, and each Unit Holder shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by such Unit Holder, in each case on or prior to before the Closing Date.Closing; (ii) nStor 9.3. no judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have delivered to Xxxxx been issued, and no action or proceeding shall have been instituted by any and all approvalsgovernmental authority, consents enjoining or assignments to be obtained by nStor and necessary for preventing the consummation of the transactions Transactions contemplated hereby.; and (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or 9.4. the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any shall have filed the Charter with the Secretary of State of the transactions contemplated by this AgreementState of Delaware, and the Charter shall remain in full force and effect as of the Effective Time.

Conditions to Closing. (a) nStorSection 11.1. The Company's Obligation to Effect the Closing. The ---------------------------------------------- obligation of the Company to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at satisfaction (or prior to Closing, waiver by the Company) as of each the Closing of the following conditions precedent (any or all subject, with respect to RISA, to the provisions of which may be waived in writing, in whole or in part, by nStorSection 7.9): (ia) Xxxxx shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained AWI made in this Agreement qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct both at in all material respects, as of the date on which this Agreement is signed and at hereof and as of the time of the Closing Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such time. (viii) There has not been any earlier date). AWI shall have performed or complied in all material adverse change in respects with all obligations and covenants required by this Agreement to be performed or complied with by AWI by the business, operations and financial conditions of Andataco from and after the date time of the 1998 10-K until Closing. AWI shall have delivered to the Company a certificate dated the Closing DateDate and signed by an authorized officer of AWI confirming the foregoing. (b) The obligations No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the consummation of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentin effect. (c) There shall not be pending or threatened by any Governmental Entity any suit, at action or prior to Closingproceeding (or by any other person any suit, action or proceeding which has a reasonable likelihood of each of the following conditions precedent (any or all of which may be waived in writingsuccess), in whole or in part, by Xxxxx): (i) nStor challenging or seeking to restrain or prohibit the transactions contemplated by this Agreement or seeking to obtain from the Company or any of the Company Subsidiaries in connection therewith any material damages, (ii) seeking to prohibit or limit the ownership or operation by the Company, AO, RISA or any of their respective Subsidiaries of any material portion of the business or assets of the Company, AO, RISA or any of their respective Subsidiaries, or to compel the Company, AO, RISA or any of their respective Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, AO, RISA or any of their respective Subsidiaries, in each case as a result of the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of the Company to acquire or hold, or exercise full rights of ownership of, the Shares, including the right to vote the Shares on all matters properly presented to stockholders or (iv) seeking to prohibit the Company or any of the Company Subsidiaries from effectively controlling in any material respect the business or operations of AO, RISA or the Related Assets. (d) All third party consents, permits, authorizations, approvals and waivers which are listed on Schedule 11.1(d) have been obtained. (e) All of the parties to the Shareholders Agreement including any Subsidiary of AWI to which Company Shares shall have performed been transferred, other than the Company, shall have executed and delivered the Shareholders Agreement, substantially in the form attached hereto as Exhibit A. (f) AWI or its Subsidiaries, as appropriate, shall each have executed and delivered the Related Agreements. (g) The Company shall have received copies of all of its obligations and complied with all of its covenants required to be performed or to be complied with customary closing documents reasonably requested by it under this Agreement the Company in writing on or prior to the Closing Datedate twenty calendar days prior to the Closing. (iih) nStor AWI shall have delivered to Xxxxx any the Company a FIRPTA certificate prepared in accordance with Treasury Regulation Section 1.1445-2(a)(2) and all approvals, consents or assignments in form reasonably satisfactory to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyCompany. (iiii) There All Liens (other than Permitted Liens) on (x) the AO Owned Property and (y) on the property, plant and equipment located at AO's Fayette, Alabama facility, shall have been discharged. (j) AO shall not have been institutedany outstanding Debt. (k) The Company shall have received, pending with respect to the facilities located in Lansdale, Pennsylvania and Jackson, Tennessee, an ALTA owner's form of title insurance policy (or threatened against Andatacoan irrevocable and unconditional binder to issue the same) issued by a title insurance company acceptable to the Company, Xxxxx, nStor which policy (or binder): (i) shall name the Company and/or AO (at the Company's option) as insured(s), (ii) shall insure the fee interest in such AO Owned Property (the legal description of which insured property shall specify an acreage of each such AO Owned Property consistent with that set forth in Schedule 11.1 attached hereto), in an insured amount to be determined by the Company, (iii) shall not take exception for any suitLiens (other than Liens which a survey would disclose), action or other proceeding by any private party or governmental agencyand (iv) shall contain such endorsements (including, commissionwithout limitation, bureau or body seeking to restrain or prohibit any of non-imputation endorsements) and affirmative insurance as the transactions contemplated by this AgreementCompany shall require.

Conditions to Closing. (a) nStor's obligation Section 6.01 Conditions to Parent’s and Merger Sub’s Obligations to Close. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement Contemplated Transactions shall be subject to the fulfillmentfulfillment or written waiver by Parent, at in its sole discretion, on or prior to Closingthe Closing Date, of each of the following conditions precedent conditions: (a) All of the representations and warranties of the Company and the Company Shareholder contained in this Agreement shall be true and correct in all material respects, other than Section 3.02 (Capitalization), which shall be true and correct in its entirety in all respects, and other than any representations or warranties qualified as to materiality, which shall be true and correct in all of which may be waived in writingrespects, in whole each case when made and on and as of the Closing Date (with the same effect as though such representations and warranties had been made on and as of the Closing Date), except for such representations and warranties which are made as of a specified date, which shall be true and correct in all respects or in partall material respects, by nStor):as applicable, as of such date. (ib) Xxxxx Each of the Company Shareholder and the Company shall have performed and observed in all of the obligations material respects all covenants and complied with all of the covenants agreements required to be performed and observed by the Company Shareholder or to be complied with by them the Company under this Agreement on at or prior to the Closing Date. (iic) Xxxxx There shall not have been any Material Adverse Effect. (d) No action, proceeding, claim or litigation shall have been commenced by or before any Governmental Authority against any Party seeking to restrain or materially and adversely alter the Contemplated Transactions. (e) The Company shall have delivered to nStor any Parent the executed certificates, instruments and all approvals, consents or assignments to be obtained items required by Xxxxx and necessary for the consummation of the transactions contemplated herebySection 2.12(a). (iiif) nStor and its accountantsThere must not have been commenced by any Person any Proceeding asserting that such Person (a) is the holder or the beneficial owner of or has the right to acquire or to obtain beneficial ownership of, attorneys and other representatives shall have had full and complete access during normal business hours any of the Company Common Stock, or (b) is entitled to all offices, facilities, properties, assets, books, agreements, files and records or any portion of Andataco, including financial and operating data and other information regarding Xxxxx and Andatacothe Merger Consideration. (ivg) nStor The Parent shall have obtained all third-party approvals from all Governmental Authorities deemed necessary by the Parent in its commercially reasonable judgment in order to consummate the Contemplated Transactions. (h) Parent shall have received binding commitments from third-party investors for a minimum of $700,000 in the nStor Financing Preferred Offering (i) Company shall have obtained a binding commitment from ACF Fxxxx I LP, a current lender to the Company, to provide additional funding. Section 6.02 Conditions to Company’s and Company Shareholder’s Obligations to Close. The obligations of the Company and the Company Shareholder to consummate the Contemplated Transactions, shall be subject to the fulfillment or written waiver by the Company Shareholder, in its sole discretion, (which determination shall be binding on each of the Company Shareholder and the Company), on or prior to the Closing Date, of each of the following conditions: (a) All of the representations and warranties of the Parent and Merger Sub contained in this Agreement shall be true and correct in all material respects, other than Section 4.03 (Parent and Merger Sub Capitalization), which shall be true and correct in its entirety in all respects, and other than any representations or warranties qualified as to materiality, which shall be true and correct in all respects, in each case when made and on and as of the Closing Date (with the same effect as though such representations and warranties had been made on and as of the Closing Date), except for such representations and warranties which are made as of a specified date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date. (b) The Parent and Merger Sub shall have performed and observed in all material respects all covenants and agreements required to be performed and observed by the Parent or Merger Sub under this Agreement at or prior to the Closing Date. (vc) There No action, proceeding, claim or litigation shall not have been instituted, pending commenced by or threatened before any Governmental Authority against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body Party seeking to restrain or prohibit any of materially and adversely alter the transactions contemplated by this AgreementContemplated Transactions. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bd) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor Parent shall have delivered to Xxxxx any the Company the items required by Section 2.12(b) and all approvals, consents or assignments shall have delivered to be obtained the Company the items required by nStor and necessary for the consummation of the transactions contemplated herebySection 2.12(c). (iiie) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or The Company and the Company any suitShareholder shall have obtained all third-party approvals from all Governmental Authorities deemed necessary by the Company Shareholder in its commercially reasonable judgment in order to consummate the Contemplated Transactions. (f) Parent shall have received binding commitments from third-party investors for a minimum of $700,000 in the Preferred Offering (g) Company shall have obtained a binding commitment from ACF Fxxxx I LP, action or other proceeding by any private party or governmental agencya current lender to the Company, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementprovide additional funding.

Conditions to Closing. (a) nStorEach Party's Obligation. The respective obligation of each party hereto to consummate effect the transactions contemplated hereby is subject to the satisfaction or waiver as of the Closing of the following conditions: (i) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Entity that prohibits the HQ Merger or any of the other material transactions contemplated by this Agreement Agreement, and no action, claim, proceeding or investigation shall be subject pending or threatened by any Governmental Entity (other than a court acting in response to the fulfillmentan action, at claim or prior to Closingproceeding brought by a non-Governmental Entity) that, of each if successful, would result in any of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateforegoing effects. (ii) Xxxxx The waiting period under the HSR Act, if applicable to the transaction contemplated hereby, shall have delivered expired or been terminated. (b) The Company's Obligations. The obligation of the Company to nStor any and all approvals, consents or assignments VANTAS to be obtained by Xxxxx and necessary for the consummation of effect the transactions contemplated hereby.hereby is subject to the satisfaction or the Company's waiver as of the Closing of the following conditions: (iiii) nStor The representations and its accountants, attorneys warranties of VANTAS and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained RSI made in this Agreement shall be true and correct both at as of the date on which this Agreement is signed and at hereof and as of the time of the Closing Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such timeearlier date), and VANTAS and RSI shall have duly performed, complied with and satisfied in all material respects all covenants, agreements and conditions required by this Agreement to be performed, complied with or satisfied by VANTAS or RSI, as applicable, by the time of the Closing except where the failure of such representations and warranties to be true and correct and/or the failure to perform, comply with and satisfy such covenants, agreements and conditions would not constitute a material impairment of the aggregate value of (i) the consideration to be paid under the UK Agreement and the Stock Purchase Agreement and (ii) the capital stock to be retained by the persons who are stockholders of the Company immediately prior to the HQ Merger after giving pro forma effect to the HQ Merger (such impairment being a "Company Transaction Value Impairment"). VANTAS and RSI shall have delivered to the Company a certificate dated the Closing Date and signed by an officer of each of VANTAS and RSI, as applicable, confirming the foregoing. (ii) All of the conditions to the obligations of CarrAmerica and all additional selling stockholder parties to close under the Stock Purchase Agreement dated as of the date hereof by and among certain of the stockholders of the Company and RSI (the "Stock Purchase Agreement"), shall have been satisfied or waived (other than the condition that the HQ Merger be consummated) and the transactions contemplated thereunder shall be scheduled to close immediately upon the Closing. (iii) The Stockholders Agreement by and among Holdco, RSI, CarrAmerica and the other parties thereto, substantially in the form of Exhibit D hereto (the "Stockholders Agreement"), shall have been duly executed and delivered by Holdco and RSI and deemed effective simultaneously with the Second Step Merger. (iv) The Indemnification and Escrow Agreement, by and among certain stockholders of Holdco, RSI and such escrow agent as shall be mutually agreed to by the parties (the "Indemnification Escrow Agent"), substantially in the form of Exhibit E hereto (the "Indemnification Escrow Agreement"), shall have been duly executed and delivered by such stockholders of Holdco, RSI and the Indemnification Escrow Agent and the shares required to be delivered by RSI pursuant thereto shall have been delivered to the Indemnification Escrow Agent pursuant thereto. (v) VANTAS shall have executed and delivered the CarrAmerica Intercompany Agreements, substantially in the form of Exhibit F-1, Exhibit F-2 and Exhibit F-3, respectively, hereto (collectively, the "Carr Intercompany Agreements"). (vi) xxe Registration Rights Agreement by and among Holdco and certain holders of the Shares, substantially in the form of Exhibit G hereto (the "Holdco Registration Rights Agreement"), shall have been executed at the Closing; (vii) The Registration Rights Agreement by and among RSI and certain holders of the Shares, substantially in the form of Exhibit H hereto ( the "RSI Registration Rights Agreement"), shall have been executed at the Closing. (viii) There has not been any material adverse change The Escrow Agreement, by and among CarrAmerica, RSI, VANTAS and such escrow agent as shall be mutually agreed to by the parties, as escrow agent (the "Cash Escrow Agent"), substantially in the businessform of Exhibit I hereto (the "Cash Escrow Agreement"), operations shall have been duly executed and financial conditions of Andataco from delivered by RSI, VANTAS and after the date of Cash Escrow Agent and the 1998 10-K until cash required to be delivered to the Closing DateCash Escrow Agent by RSI and/or VANTAS pursuant hereto and thereto shall have been delivered to the Cash Escrow Agent. (bix) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants All actions required to be performed or taken by RSI and the HQ Surviving Corporation to be complied with by it under this Agreement on or prior to implement the Closing DateSecond Step Merger shall have been taken. (iix) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyIntentionally Omitted. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, The respective obligations of each of the following conditions precedent Investor and the Company to consummate the Exchange are subject to the fulfillment (any or all of which may be waived in writingwaiver by the Company and the Investor, in whole or in part, by nStor): (ias applicable) Xxxxx shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor condition that no provision of any applicable United States or other law and its accountantsno judgment, attorneys and other representatives shall have had full and complete access during normal business hours to all officesinjunction, facilitiesorder, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suitdecree, action or other proceeding by interpretation of any private Governmental Entity shall prohibit or restrain consummation of, or otherwise impose material limits on the ability of any party or governmental agencyto this Agreement to consummate, commission, bureau or body seeking to restrain or prohibit any of the transactions Exchange as contemplated by this Agreement. (vib) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(aThe obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) hereof.at or prior to the Closing of each of the following conditions: (viii) Each representation (A) the representations and warranty warranties of Xxxxx contained the Company set forth in Article III of this Agreement shall be true and correct both at the date in all material respects as though made on which this Agreement is signed and at and as of the Closing Date (other than representations and warranties that by their terms speak as if made anew at of another date, which representations and warranties shall be true and correct in all material respects as of such time. other date) and (viiiB) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor Company shall have performed in all of its material respects all obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.; and (ii) nStor the Investor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation received a certificate signed on behalf of the transactions contemplated herebyCompany by an executive officer of the Company certifying that the conditions set forth in Section 2.2(b)(i) have been satisfied. (iiic) There The obligation of the Company to consummate the Exchange is also subject to the fulfillment (or waiver by the Company) at or prior to the Closing of each of the following conditions: (i) (A) the representations and warranties of the Investor set forth in Article IV of this Agreement shall not be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement on or prior to the Closing Date; and (ii) the Company shall have received a certificate signed on behalf of the Investor by an authorized person of the Investor certifying that the conditions set forth in Section 2.2(c)(i) have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementsatisfied.

Conditions to Closing. (a) nStor's The obligations of the Seller, on the one hand, and the Buyer, on the other hand, to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions: (i) there shall not be in effect any preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States or by any United States federal or state governmental or regulatory body nor any statute, rule, regulation or executive order promulgated or enacted by any United States federal or state governmental authority which restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement or any other agreement or document contemplated hereby; and (ii) any filings required to be made under the HSR Act shall have been made, and all applicable waiting periods thereunder with respect to the transactions contemplated by this Agreement shall have expired or been terminated. (b) The Seller’s obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, writing by nStorSeller): (i) Xxxxx each of the representations of the Buyer under this Agreement and each of the other agreements and documents contemplated hereby shall be true and correct in all material respects at and as of the time of the Closing with the same effect as though such representations had been made again at and as of that time, except to the extent that any such representations expressly relate to an earlier date in which case any such representations shall be true and correct in all material respects at and as of such earlier date; (ii) the Buyer shall have performed all of the obligations and complied with all of each obligation, covenant and condition required by this Agreement and the covenants required other documents contemplated hereby to be performed or to be complied with by them it prior to or at the Closing, with such exceptions as could not reasonably be expected to result in a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement on or prior to any other agreement or document contemplated hereby provided, however, that nothing in this subparagraph shall affect Seller’s rights under Section 4.2 in the Closing Date. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation event of the transactions contemplated hereby.a default thereunder; (iii) nStor the Capital Expenditures Committees of YUM! Brands, Inc., and its accountants, attorneys and other representatives shall PHI will have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of approved the transactions contemplated by this Agreement.; (iv) the Seller will have received a copy of a resolution or unanimous written consent evidencing the action by the Buyer’s Board of Directors or the Buyer’s general partner or such other similar authorizing body approving the purchase of the Assets under this Agreement certified by an authorized officer, partner or member; and (v) the Buyer will deliver to Seller a statement, signed by the Buyer’s Chief Financial Officer, certifying that at least 20% of the Total Transaction Costs being paid will be represented by “at risk capital” as defined by applicable accounting rules, which is in the form of equity and is not (and will not be secured) by a lien on the Assets or on the equity interests of the Buyer or any of its Affiliates, and the Seller shall otherwise be satisfied in all respects with the capital structure of the Buyer; and (vi) X. Xxxxx the Seller shall have entered into Employment Agreement as provided for received evidence satisfactory in Section 3(a) hereofall respects to them that the Buyer shall have hired an operator to manage the Restaurants to be purchased by the Buyer, which operator has substantial experience in the operation of Pizza Hut restaurants and has been approved by PHI, in its sole discretion. (vii) Each representation the Buyer shall deliver to Seller and warranty of Xxxxx contained PHI, and the Seller and PHI shall have received from the Buyer and its Affiliates, as the Seller and PHI deem necessary, in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timetheir sole discretion, all Uniform Franchise Offering Circular receipts, including those relating to any Addenda or Amendments. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (bc) The obligations of Xxxxx Buyer’s obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, writing by Xxxxxthe Buyer): (i) nStor each of the representations of Seller under this Agreement and each of the other agreements and documents contemplated hereby shall be true and correct in all material respects at and as of the time of the Closing with the same effect as though such representations had been made again at and as of that time, except to the extent that any such representations expressly relate to an earlier date in which case any such representations shall be true and correct in all material respects at and as of such earlier date; (ii) Seller shall have performed all of its obligations and complied with all of its covenants each obligation, covenant and condition required by this Agreement and the other documents contemplated hereby to be performed or to be complied with by it prior to or at the Closing, with such exceptions as could not reasonably be expected to result in a material adverse effect on the ability of the Seller to perform its obligations under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents other agreement or assignments to be obtained by nStor and necessary for the consummation of the transactions document contemplated hereby.; and (iii) There shall not the Buyer will have been instituted, pending or threatened against Andataco, Xxxxx, nStor or received a copy of a resolution of Seller’s Board of Directors approving the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any sale of the transactions contemplated Assets certified by this Agreementan authorized officer of the Seller.

Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writingby Buyer and Seller, together, in whole or in part, part to the extent permitted by nStorApplicable Law): (i) Xxxxx any applicable waiting period under the HSR Act with respect to the transactions contemplated hereby shall have performed all of the obligations and complied with all of the covenants required to be performed expired or to be complied with by them under this Agreement on or prior to the Closing Date.been terminated; and (ii) Xxxxx there shall have delivered to nStor not be in force an injunction or order of any and all approvalscourt of competent jurisdiction in the United States enjoining, consents prohibiting or assignments to be obtained by Xxxxx and necessary for rendering illegal the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing. (b) The obligations obligation of Xxxxx Buyer to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following further conditions precedent (any or all of which may be waived in writing, by Buyer in whole or in part, part to the extent permitted by XxxxxApplicable Law): (i) nStor (A) the Seller Fundamental Warranties contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects, as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (B) the representations and warranties of Seller, other than the Seller Fundamental Warranties, contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except, in each case, for any inaccuracy or omission that would not reasonably be expected to, individually or in the aggregate, have performed all a Material Adverse Effect; (ii) the covenants of its obligations and complied with all of its covenants required Seller to be performed or to be complied with by it under this Agreement on or prior to the Closing shall have been performed in all material respects (or any non-performance shall have been cured to the extent necessary to satisfy this condition); (iii) Buyer shall have received a certificate signed by an executive officer of Seller to the effect of the foregoing clauses ‎(i) and ‎(ii); and (iv) Since the date of this Agreement, there shall not have occurred any event that, individually or in the aggregate with all other effects since the date of this Agreement, has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (c) The obligation of Seller to consummate the Closing is subject to the satisfaction of the following further conditions (any or all of which may be waived by Seller in whole or in part to the extent permitted by Applicable Law): (A) the Buyer Fundamental Warranties contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects as of the Closing Date., as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (B) the representations and warranties of Buyer, other than Buyer Fundamental Warranties, contained in this Agreement shall, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to materially impair Buyer’s ability to perform or comply with its obligations under this Agreement or consummate the transactions contemplated hereby; (ii) nStor the covenants of Buyer to be performed prior to the Closing shall have delivered been performed in all material respects (or any non-performance shall have been cured to Xxxxx any the extent necessary to satisfy this condition); and (iii) Seller shall have received a certificate signed by an executive officer of Buyer to the effect of the foregoing clauses ‎(i) and all approvals, consents ‎(ii). (d) All conditions to the Closing shall be deemed to have been satisfied or assignments to be obtained by nStor waived from and necessary for after the consummation of the transactions contemplated hereby. (iii) There shall not have been institutedClosing. Neither Seller nor Buyer may rely on the failure of any condition set forth in this ‎Article 8 to be satisfied if such failure was caused by the failure of Seller, pending on the one hand, or threatened against AndatacoBuyer, Xxxxxon the other hand, nStor or the Company any suitrespectively, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by comply with its obligations under this Agreement.

Conditions to Closing. (a) nStor's The obligation of Investor to consummate acquire Units at the transactions contemplated by this Agreement shall be Closing is subject to the fulfillmentfulfillment of the following, at on or prior to Closing, the date of each Closing of the following conditions precedent (any or all of which may be unless waived in writing, in whole or in part, by nStorInvestor): (i) Xxxxx The representations and warranties of the Company contained in Section 3 herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date of Closing, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. (ii) The Company shall have performed all of the obligations performed, satisfied and complied in all material respects with all of covenants, agreements and conditions required by the covenants required Transaction Agreements to be performed performed, satisfied or to be complied with by them under this Agreement on it at or prior to the Closing Dateand shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Units, all of which shall be and remain so long as necessary in full force and effect. (iii) the Company shall deliver to the Investor this Agreement and the Registration Rights Agreement, duly executed by the Company; (iv) the NASDAQ Capital Market shall have approved the listing of additional shares application for the Shares and Warrant Shares. (b) On or prior to the Closing, the Investor shall issue, deliver or cause to be delivered to the Company the following: (i) The representations and warranties of the Investor contained in Section 4 herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date when made and as of the date of Closing, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. (ii) Xxxxx Investor shall have delivered performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Agreements to nStor be performed, satisfied or complied with by it at or prior to the Closing and shall have obtained in a timely fashion any and all consents, permits, approvals, consents or assignments to be obtained by Xxxxx registrations and waivers necessary for the consummation of the transactions contemplated herebypurchase and sale of the Units, all of which shall be and remain so long as necessary in full force and effect. (iii) nStor and its accountants, attorneys and other representatives Investor shall have had full and complete access during normal business hours deliver to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco.the Company: (iv1) nStor shall have received this Agreement and the nStor Financing on or prior to the Closing Date.Registration Rights Agreement, duly executed by Investor; and (v2) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) X. Xxxxx shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of Xxxxx contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of Xxxxx to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingCapital Commitment, in whole or United States dollars and in partimmediately available funds, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Datecompleted Internal Revenue Service Form W-9. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, Xxxxx, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.

Conditions to Closing. (a) nStor's 7.1. Obligations of Investor with respect to the Closing. The obligation of Investor to consummate the transactions contemplated to occur at the Closing is subject to the satisfaction (or waiver by Investor) as of the Closing of the following conditions: 7.1.1. The representations and warranties of the Company set forth in this Agreement and in the Ancillary Agreements to which it is a party qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date) and Investor shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of the Company. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement shall be subject and the Ancillary Agreements to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) Xxxxx shall have performed all of the obligations and complied with all of the covenants required it is a party to be performed or to be complied with by them under this Agreement on or prior to the Closing DateCompany by the time of the Closing. (ii) Xxxxx shall have delivered to nStor any and all approvals, consents or assignments to be obtained by Xxxxx and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding Xxxxx and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) 7.1.2. There shall not have been instituted, be threatened or pending or threatened against Andataco, Xxxxx, nStor or the Company by any Governmental Authority any suit, action or other proceeding proceeding, and there shall not be pending by any private party other person any suit, action or governmental agencyproceeding, commissionwhich has a substantial likelihood of success, bureau or body (i) seeking to restrain or prohibit the purchase and sale of the Newly Issued Shares or the Class B Stock pursuant to the Offer, (ii) seeking to compel the Company to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or to compel Investor or its subsidiaries to dispose of or hold separate any material portion of the business or assets of Investor and its subsidiaries, as a result of any of the transactions contemplated by this Agreement or the Ancillary Agreements or (iii) seeking to prohibit Investor from effectively exercising any of its material rights under this Agreement or any Ancillary Agreement. (vi) X. Xxxxx 7.1.3. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of any of the transactions contemplated hereby or by the Ancillary Agreements or having any of the other consequences described in Section 7.1.2 shall be in effect. 7.1.4. The Amended Bylaws shall have entered into Employment Agreement as provided for in Section 3(a) hereofbeen duly authorized, approved and effected. 7.1.5. The Company shall have furnished to Investor an opinion of John X. Xxxxxx, Xx., Xenior Vice President and General Counsel of the Company, in the form attached hereto as Exhibit C. 7.1.6. During the period from the date of this Agreement until the Closing Date, neither the Company nor any subsidiary shall have sold or otherwise disposed of (viior authorized, committed or agreed to sell or otherwise dispose of), in a single transaction or in a series of transactions, excluding sales of inventory or other assets in the normal course of business, any business or assets relating to the Primary Business of the Company that constitute more than five percent of the total consolidated assets of the Company as shown on the Company's consolidated balance sheet as of the end of the most recent fiscal quarter ending prior to the time the determination is made, whether such sale or disposition be by merger or consolidation or the sale of stock or assets or otherwise. 7.2. Obligations of the Company with respect to the Closing. The obligation of the Company to consummate the transactions contemplated to occur at the Closing is subject to the satisfaction (or waiver by the Company) Each representation as of the Closing of the following conditions: 7.2.1. The representations and warranty warranties of Xxxxx contained Investor set forth in this Agreement and in the Ancillary Agreements qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct both at in all material respects, as of the date on which this Agreement is signed and at hereof and as of the time of the Closing Date as if though made anew at as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such time. (viiiearlier date) There has not been any material adverse change in and the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until Company shall have received a certificate to such effect dated the Closing Date. (b) The Date and executed by a duly authorized officer of Investor. Investor shall have performed or complied in all material respects with all obligations of Xxxxx to consummate the transactions contemplated and covenants required by this Agreement shall be subject to and the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by Xxxxx): (i) nStor shall have performed all of its obligations and complied with all of its covenants required Ancillary Agreements to be performed or to be complied with by it under this Agreement on or prior to Investor by the Closing Datetime of the Closing. (ii) nStor shall have delivered to Xxxxx any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) 7.2.2. There shall not have been instituted, be threatened or pending or threatened against Andataco, Xxxxx, nStor or the Company by any Governmental Authority any suit, action or other proceeding and there shall not be pending by any private party other person any suit, action or governmental agencyproceeding, commissionwhich has a substantial likelihood of success, bureau or body (i) seeking to restrain or prohibit the purchase and sale of the Newly Issued Shares or the Class B Stock pursuant to the Offer, (ii) seeking to compel the Company to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or to compel Investor or its subsidiaries to dispose of or hold separate any material portion of the business or assets of Investor and its subsidiaries, as a result of any of the transactions contemplated by this Agreement or the Ancillary Agreements or (iii) seeking to prohibit the Company from effectively exercising any of its material rights under this Agreement or any Ancillary Agreement. 7.2.3. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent inunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of any of the transactions contemplated hereby or by the Ancillary Agreements or having any of the other consequences described in Section 7.2.2 shall be in effect. 7.2.4. The Offer shall have expired and Investor shall have purchased or accepted for payment and purchase any Class B Stock which it will acquire pursuant to the Offer. 7.2.5. Investor shall have furnished to the Company an opinion of Franx X. Xxxxx, Xxsistant General Counsel of Investor, in the form attached hereto as Exhibit D.