Common use of Conditions to Obligation of the Company to Effect the Merger Clause in Contracts

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, the following conditions: (a) (i) The Parent Fundamental Representations shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, 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 date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed by an authorized officer of Parent certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth herein (i) The Parent Fundamental Representations with respect to Section 4.2(a), Section 4.3(a), Section 4.20 and Section 4.21 shall be true and correct in all respects, as of the date of this Agreement both when made and at and as of the Closing Date, as though if made on at and as of such date time (except to the extent any such representation and warranty expressly speaks made as of an earlier date, in which case as of such earlier date); , in all respects (except in the case of Section 3.2(a) for such inaccuracies as are de minimis in the aggregate) and (ii) the with respect to all other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement both when made and at and as of the Closing Date, 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 date), except in the case of clause (ii) where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or “Parent Material Adverse Effect” or similar qualifiers contained in such representations set forth therein) does not have, and warranties)would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Each of Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there A Parent Material Adverse Effect shall not have occurred a Parent Material Adverse Effectsince the date hereof. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued shall have received financing on the terms provided for in the Merger Bank Letter or any Alternate Financing. (f) Parent shall have been approved for listing received the third party consent set forth on Section 6.2(f) of the NYSE, subject to official notice of issuanceCompany Disclosure Schedule.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) (i) The the representations and warranties of Parent Fundamental Representations and Merger Sub set forth in Section 4.1(a), Section 4.1(d), Section 4.1(e), Section 4.2(a) and Section 4.11 shall be true and correct in all material respects, as of the date of this Agreement both when made and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where ) and (ii) the failure of such other representations and warranties of Parent and Merger Sub set forth in Article IV shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except with respect to this clause (ii) where such failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or and similar qualifiers contained in such representations and warranties)) have not and would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.; (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time.; (c) Since September 30, 2013the date of this Agreement, there shall has not been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have occurred a Parent Material Adverse Effect.; (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent Parent’s Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.; (e) The shares Company shall have received a written opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters, including representation letters from each of Parent Common Stock and the Company, in each case, in form and substance satisfactory to be issued in the Merger such counsel; and (f) The Company shall have received a written opinion from KPMG LLP, dated as of the Closing Date and addressed to the Company, in form and substance satisfactory to the Company, that, commencing with Parent’s taxable year ended December 31, 2014, Parent has been approved organized and operated in conformity with the requirements for listing on qualification as a REIT under the NYSECode and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code thereafter, subject as well as copies of all certifications provided by Parent to official notice of issuancesuch firm in connection with its opinion.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver in writing by the Company at or prior to the Effective Time of, Company) of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub contained in Section 4.2(a) (Corporate Authority) shall be true and correct in all respects, respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent and Merger Sub set forth in Article IV this Agreement (other than in clause (i) above) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) at and as of the date of this Agreement and at and as of the Closing Date, Date as if though made at and as of such time (except to the extent expressly made as of an earlier dateClosing Date except, in which the case as of such datethis clause (ii), except where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” or “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations qualification set forth therein) does not have, and warranties)would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, satisfaction or the waiver by the Company in writing at or prior to the Effective Time of, of the following additional conditions: (a) The representations and warranties of Parent and Merger Sub contained in Sections 6.1 and 6.2 that (i) The Parent Fundamental Representations are not made as of a specific date shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier dateClosing Date, in which case as of such earlier date); and (ii) the are made as of a specific date shall be true and correct as of such date. The other representations and warranties of Parent set forth and Merger Sub contained in Article IV this Agreement that (A) are not made as of a specific date shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, as if though made at on and as of such time the Closing Date, and (except to the extent expressly B) are made as of an earlier date, in which case a specific date shall be true and correct as of such date, in each case of sub-clauses (A) and (B), except where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or “Parent Material Adverse Effect” or similar qualifiers contained set forth in such representations and warranties), individually or in the aggregate, have has not had and would not reasonably be expected to have a Parent Material Adverse Effect.; (b) Each of Parent and Merger Sub shall have performed in all material respects all obligations and or complied in all material respects respects, with all its obligations, agreements and covenants required by under this Agreement to be performed or complied with by them it on or prior to the Effective Time.; and (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated as of the Closing Date, signed by an authorized officer of Parent and certifying as to the effect that satisfaction of the conditions set forth specified in Section 6.2(a), Section 6.2(b9.2(a) and Section 6.2(c) have been satisfied9.2(b). (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The this Agreement (other than Sections 4.2(a), 4.10(a)(ii) and 4.10(b)) that are qualified by Parent Fundamental Representations Material Adverse Effect shall be true and correct in all respects, at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the this Agreement (other than Sections 4.2(a), 4.10(a)(ii) and 4.10(b) and those representations and warranties of qualified by Parent set forth in Article IV Material Adverse Effect) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as if made at and as of except for such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties failures to be so true and correct (without regard as are not having or would not reasonably be expected to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (iii) Section 4.2(a) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, (iv) Section 4.10(a)(ii) shall be true and correct at and as of the date of this Agreement and (v) Section 4.10(b) shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) . The shares foregoing conditions are for the sole benefit of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSECompany and may, subject to official notice the terms of issuancethis Agreement, be waived by the Company, in whole or in part at any time and from time to time, in the sole discretion of the Company. The failure by the Company at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time prior to the Effective Time.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub set forth in the first three sentences of Section 4.1(c) shall be true and correct in all respects, respects (except for any de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks made as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent and Merger Sub set forth in Section 4.1, and the representations and warranties of Parent and Merger Sub set forth in Section 4.2(a), shall be true and correct in all material respects, both when made and at and as of the Closing Date, 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 date); and (iii) the other representations of Parent and Merger Sub set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement both when made and at and as of the Closing Date, 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 date), except with respect to this clause (iii) where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions contained as to “materiality,” “in all material respects,” “materiality or Parent Material Adverse Effect” or similar qualifiers Effect contained in such representations and warrantieswarranties except with respect to Section 4.7(b)) have not had and would not have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013the date of this Agreement, there shall has not have occurred been a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent Parent’s Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares Company shall have received a written opinion from Xxxxx Day, counsel to the Company, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Xxxxx Day shall be entitled to rely upon representation letters, including representation letters from each of Parent Common Stock and the Company, in each case, in form and substance satisfactory to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuanceXxxxx Day.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations contained herein (other than the representation and warranties set forth in Sections 4.2, 4.3(a), 4.4(b), 4.10 and 4.21) shall be true and correct in all respectsas of the Effective Time with the same effect as though made as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date, as though made on and or some other date will be determined as of such date and not as of the Effective Time and (except to the extent z) where any such representation failure of the representations and warranty expressly speaks as of an earlier date, warranties in which case as of such earlier date)the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on Parent; and (ii) the other representations and warranties of Parent set forth in Article IV Sections 4.2, 4.3(a) and 4.4(b) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiersrespects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date, and (iii) the representations and warranties contained in Sections 4.10 and 4.21 shall have been true and correct in all respects when made and as of the Closing Date, 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 date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.Effective Time; (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time.; and (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or any Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) (i) The Parent Fundamental Representations shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV (i) this Agreement (other than in Section 4.2(a), Section 4.2(b) and Section 4.10(b)) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) at and as of the date of this Agreement Closing Date as though made at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties), individually or in the aggregate, ) have not had and would not reasonably be expected to have have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) Section 4.2(a) and Section 4.2(b) shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date, except for any de minimis inaccuracies, and (iii) Section 4.10(b) shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects (i) performed all obligations and (ii) complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Company shall have received a written opinion from Xxxxx Xxxxx L.L.P., counsel to the Company, or such other reputable law firm of national standing, reasonably acceptable to the Company (or if any such counsel is unable to deliver such opinion, Xxxxxxxx & Xxxxx LLP), dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of Parent Common Stock and the Company and any of their respective affiliates and Representatives, in each case, in form and substance reasonably satisfactory to be issued such counsel, including Tax representation letters in substantially the Merger shall have been approved for listing on forms attached hereto as Exhibits C and D, dated as of the NYSE, subject to official notice date of issuancesuch opinion.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The this Agreement (other than Sections 4.2(a), 4.10(a)(ii) and 4.10(b)) that are qualified by Parent Fundamental Representations Material Adverse Effect shall be true and correct in all respects, at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the this Agreement (other than Sections 4.2(a), 4.10(a)(ii) and 4.10(b) and those representations and warranties of qualified by Parent set forth in Article IV Material Adverse Effect) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as if made at and as of except for such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties failures to be so true and correct (without regard as are not having or would not reasonably be expected to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (iii) Section 4.2(a) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, (iv) Section 4.10(a)(ii) shall be true and correct at and as of the date of this Agreement and (v) Section 4.10(b) shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Company shall have received an opinion from Wachtell, Lipton, Xxxxx & Xxxx, on the basis of Parent Common Stock representations and warranties set forth or referred to be issued in such opinion, dated as of the Closing Date, to the effect that the Merger will be treated as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, such counsel shall have been approved be entitled to receive and rely upon representations, warranties and covenants of officers of Parent, Merger Sub, the Company or others reasonably requested by such counsel. The foregoing conditions are for listing on the NYSEsole benefit of the Company and may, subject to official notice the terms of issuancethis Agreement, be waived by the Company, in whole or in part at any time and from time to time, in the sole discretion of the Company. The failure by the Company at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time prior to the Effective Time.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than Section 4.2, Section 4.3 and Section 4.10(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, Date as if though made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct Closing Date (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “”, Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties), individually or except where such failures to be so true and correct would not, in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) Section 4.3 shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 4.2 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 4.10(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iv), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent its general partner, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The shares Parent shall have received from Parent’s Counsel, the following written opinions dated as of the Closing Date and upon which the Company shall be expressly entitled to rely: (i) an opinion from Xxxxxxx XxXxxxxxx LLP to the effect that for U.S. federal income tax purposes, Parent should not be treated as an investment company for purposes of section 721(b) of the Code and (ii) an opinion from Xxxxxx & Xxxxxxx LLP to the effect that for U.S. federal income tax purposes, 90% of the current gross income of Parent constitutes qualifying income within the meaning of Section 7704(d) of the Code and Parent will be treated as a partnership for federal income tax purposes pursuant to Section 7704(c) of the Code. In rendering such opinion, Parent’s Counsel shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 5.16. (f) The Company shall have received from the Company’s counsel a written opinion dated as of the Closing Date to the effect that for U.S. federal income tax purposes the Merger should qualify under Section 721(a) of the Code with respect to holders of Company Common Stock to the extent they receive Common Units as Merger Consideration; provided however, this result may not apply to the extent such holders receive money or other property, other than an operating cash flow distribution (as such term is defined in Treasury regulation section 1.707-4), from Parent on any date through and including the second anniversary of the Closing. In rendering such opinion, the Company’s Counsel shall be issued entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Merger shall have been approved for listing Tax Representation Letters described in Section 5.16 and on the NYSE, subject to official notice opinions of issuanceParent’s Counsel described in Section 6.2(e).

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than Section 4.2, Section 4.3 and Section 4.10(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, Date as if though made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct Closing Date (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “”, Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties), individually or except where such failures to be so true and correct would not, in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) Section 4.3 shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 4.2 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 4.10(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iv), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent its general partner, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The shares Parent shall have received from Parent’s Counsel, the following written opinions dated as of the Closing Date and upon which the Company shall be expressly entitled to rely: (i) an opinion from Xxxxxxx XxXxxxxxx LLP to the effect that for U.S. federal income tax purposes, Parent should not be treated as an investment company for purposes of section 721(b) of the Code and (ii) an opinion from Xxxxxx & Xxxxxxx LLP to the effect that for U.S. federal income tax purposes, 90% of the current gross income of Parent constitutes qualifying income within the meaning of Section 7704(d) of the Code and Parent will be treated as a partnership for federal income tax purposes pursuant to Section 7704(c) of the Code. In rendering such opinion, Parent’s Counsel shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 5.16. (f) The Company shall have received from the Company’s counsel a written opinion dated as of the Closing Date to the effect that for U.S. federal income tax purposes the Merger should qualify under Section 721(a) of the Code with respect to holders of Company Common Stock to the extent they receive Common Units as Merger Consideration; provided however, this result may not apply to the extent such holders receive money or other property, other than an operating cash flow distribution (as such term is defined in Treasury regulation section 1.707-4), from Parent on any date through and including the second anniversary of the Closing. In rendering such opinion, the Company’s Counsel shall be issued entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Merger shall have been approved for listing Tax Representation Letters described in Section 5.16 and on the NYSE, subject to official notice opinions of issuanceParent’s Counsel described in Section 6.2(e).

Conditions to Obligation of the Company to Effect the Merger. The obligation Only if the Acceptance Time shall not have occurred, the obligations of the Company to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by the Company Company, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The Parent Fundamental Representations shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV V (other than Section 5.1, Section 5.2, Section 5.3(a) and Section 5.5) shall be true and correct (without giving effect regard to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiersqualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Merger Closing Date, as if though made at and as of such time (times, except for such failures to the extent expressly made be true and correct as of an earlier datewould not have, in which case as of such date)the aggregate, except where a Material Adverse Effect on Parent, and (ii) the failure of such representations and warranties to set forth in Section 5.1, Section 5.2, Section 5.3(a) and Section 5.5 shall be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) in all material respects at and as of the date of this Agreement and at and as of the Merger Closing as though made at and as of such times; provided, individually however, that with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the aggregatemanner set forth in clauses (i) and (ii) above, have not had and would not reasonably be expected to have a Parent Material Adverse Effectas applicable) only as of such date or period. (b) Each of Parent and Merger Sub shall have performed in all material respects all their obligations and agreements and shall have complied in all material respects with all the covenants required by this Agreement to be performed or and complied with by them it under this Agreement at or prior to the Effective TimeMerger Closing. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to furnished the Company with a certificate executed dated the Closing Date signed on its behalf by an authorized executive officer of Parent certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b7.2(a) and Section 6.2(c7.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, satisfaction (or the waiver by the Company Company) at or prior to the Effective Time of, of the following additional conditions: (a) Each of the representations and warranties of Parent and Merger Sub contained in (i) The Parent Fundamental Representations Sections 3.1, 3.2, 3.3(a)(i), 3.12 and 3.13 of this Agreement shall be true and correct in all respects, as of the date of this Agreement material respects at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, Effective Time as if made at and as of such time (except to the extent expressly made other than representations and warranties that by their terms address matters only as of an earlier dateanother specified date or time, which shall be true and correct in which case all material respects only as of such date), except where the failure date or time) and (ii) this Agreement other than those Sections specifically identified in clause (i) of such representations and warranties to be so true and correct this Section 5.3(a) (without regard to any qualifications or exceptions as to disregarding all “materiality,” “in all material respects,” or “Parent Material Adverse Effect” or similar qualifiers qualifications contained in therein), shall be true and correct at and as of the Effective Time as if made at and as of such time (other than representations and warrantieswarranties that by their terms address matters only as of another specified date or time, which shall be true and correct, disregarding all materiality and "Parent Material Adverse Effect" qualifications contained therein, only as of such date or time), with only such exceptions, in the case of this clause (ii) only, as have not had and would not have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Each of Parent and Merger Sub shall have performed or complied with, in all material respects respects, all obligations of the obligations, agreements and complied in all material respects with all covenants required by under this Agreement to be performed or complied with by them it on or prior to the Effective Time.; and (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated as of the Closing Date, signed by an authorized officer of Parent and certifying as to the effect that satisfaction of the conditions set forth specified in Section 6.2(a), Section 6.2(b5.2(a) and Section 6.2(c) have been satisfied5.2(b). (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than in Section 4.2(a), Section 4.2(g), Section 4.10(b) and Section 4.10(c)) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect., (ii) Section 4.2(a) and Section 4.2(g) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for any immaterial inaccuracies, and (iii) Section 4.10(b) and Section 4.10(c) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) or (iii), as applicable) only as of such date or period; (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time.; (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent GP, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied.; and (ed) The shares of Parent Common Stock Units to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation obligations of the Company to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by the Company Company, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The Parent Fundamental Representations shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV (other than Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.5(a), Section 4.6, Section 4.14 and Section 4.15) shall be true and correct (without giving effect regard to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiersqualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Closing Date, as if though made at and as of such time (times, except for such failures to the extent expressly made be true and correct as of an earlier datewould not have, in which case as of such date)the aggregate, except where a Material Adverse Effect on Parent, (ii) the failure of such representations and warranties to set forth in Section 4.4(a) shall be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties), individually except for any de minimis inaccuracies and other than with respect to any issuances permitted pursuant to this Agreement at and as of the date of this Agreement and at and as of the Closing as though made at and as of such times, (iii) the representations and warranties set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.5(a), Section 4.14 and Section 4.15 shall be true and correct (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representations and warranties) in all material respects at and as of the date of this Agreement and at and as of the Closing as though made at and as of such times and (iv) the representations set forth in Section 4.4(b) and Section 4.6 shall be true and correct at and as of the Closing as if made at and as of such time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the aggregatemanner set forth in clause (i), have not had and would not reasonably be expected to have a Parent Material Adverse Effect(ii), (iii) or (iv) above, as applicable) only as of such date or period. (b) Each of Parent and Merger Sub shall have performed in all material respects all their obligations and agreements and shall have complied in all material respects with all the covenants required by this Agreement to be performed or and complied with by them it under this Agreement at or prior to the Effective TimeClosing. (c) Since September 30, 2013the date of this Agreement, there shall not have occurred any Events that have had or would have a Parent Material Adverse EffectEffect on Parent. (d) There shall have been no adoption, implementation, promulgation, repeal, modification, amendment or change of any applicable Law following the date of this Agreement and prior to the Closing Date, the effect of which would be to treat Parent as a “domestic corporation” within the meaning of the Code as of or after the Closing Date. (e) Parent shall have delivered to furnished the Company with a certificate executed dated the Closing Date signed on its behalf by an authorized officer the Chief Financial Officer of Parent certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (ef) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on furnished the NYSECompany with resolutions of the Parent Board effecting, subject only to official notice consummation of issuancethe Merger, the matters contemplated by Section 5.15.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The this Agreement (other than Sections 4.2 and 4.10) that are qualified by Parent Fundamental Representations Material Adverse Effect shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, as though made on at and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier dateClosing Date, in which case as of such earlier date); and (ii) the this Agreement (other than Sections 4.2 and 4.10 and those representations and warranties of qualified by Parent set forth in Article IV Material Adverse Effect) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (iii) Section 4.2 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 4.10 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Company shall have received from the Company’s Counsel, a written opinion dated as of Parent Common Stock the Closing Date to the effect that for U.S. federal income tax purposes the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, the Company’s Counsel shall be issued entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuanceTax Representation Letters described in Section 5.17.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than in Sections 4.1(b), 4.1(c) and 4.7(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Company Material Adverse Effect, (ii) Sections 4.1(b) and 4.1(c) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for any de minimis inaccuracies, and (iii) Section 4.7(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period need be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent its general partner, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Company shall have received a written opinion from Xxxxxx & Xxxxxxx LLP, counsel to the Company, or another firm of national reputation, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters from each of Parent Common Stock and the Company, in each case, in form and substance reasonably satisfactory to such counsel. Each such representation letter shall be dated as of the date of such opinion. The condition set forth in this Section 6.2(d) shall not be waivable after receipt of the Company Stockholder Approval if such waiver would require further stockholder approval to be issued in the Merger shall have been approved for listing on the NYSEobtained, subject to official notice of issuanceunless further stockholder approval is obtained with appropriate disclosure.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than in Sections 4.1(c), 4.1(d) and 4.7(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) Sections 4.1(c) and 4.1(d) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for any de minimis inaccuracies, and (iii) Section 4.7(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period need be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Each of Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent the Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, Closing Date of the following conditionsconditions that: (a) (i) The Parent Fundamental Representations Parent, Holdings and Merger Sub shall have performed, in all material respects, their covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date, (ii) (A) the representations and warranties of Parent, Holdings and Merger Sub set forth in ‎Section 4.1 shall be true and correct in all respectsrespects (except, as of in each such case, for any inaccuracies that are de minimis in the date of this Agreement aggregate) at and as of the Closing Date, as though if made on at and as of such date time (except to the extent any such representation and warranty expressly speaks made as of an earlier date, in which case as of such earlier date); ) and (iiB) the other representations and warranties of Parent Parent, Holdings and Merger Sub set forth in Article IV ‎Section 4.2 and ‎Section 4.3 shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiersrespects (except, in each such case, for any inaccuracies that are de minimis in the aggregate) both at and as of the date of this Agreement and as of the Closing Date, 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 date), (iii) the representations and warranties of each of Parent, Holdings and Merger Sub set forth in this Agreement (other than the representations and warranties set forth in ‎Section 4.1, ‎Section 4.2 and ‎Section 4.3) shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) as of the Closing Date, 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 date), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or, other than with respect to ‎Section 4.9(a), “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warrantiesset forth therein), individually or in the aggregate, have has not had had, and would not be reasonably be expected likely to have or result in, a Parent Material Adverse Effect, and (iv) the Company shall have received a certificate of each of Parent, Holdings and Merger Sub, executed on its behalf by its President or one of its Vice Presidents, dated the Closing Date, certifying the satisfaction of the conditions set out in clauses (i), (ii) and (iii) hereof. (b) Parent and Merger Sub shall have performed received the opinion of Xxxxx Xxxxx L.L.P., counsel to Parent, or another nationally-recognized law firm experienced in all material respects all obligations and complied such matters, in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to substantially the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed by an authorized officer of Parent certifying to the effect that the conditions form set forth in Section 6.2(a)6.2(b)(i) of the Parent Disclosure Letter and dated the Closing Date, to the effect that, on the basis of certain facts, representations and assumptions set forth in such opinion and subject to the qualifications and limitations as may be set forth therein, for United States federal income tax purposes, the Merger will be treated as a reorganization qualifying under Section 6.2(b368(a) of the Code. In rendering such opinion, such counsel shall be entitled to receive and Section 6.2(c) have been satisfied. (e) The shares rely upon representations of Parent Common Stock to be issued officers of the Company and Parent, substantially in the Merger shall have been approved for listing on form set forth in ‎Section 6.2(b)(ii) of the NYSECompany Disclosure Letter and the Parent Disclosure Letter, subject to official notice respectively, dated as of issuancethe Closing Date.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company, to the extent permitted under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Sodium, Sodium US and Merger Sub set forth in (i) The Parent Fundamental Representations Article IV and Article V of this Agreement (other than in Section 4.2(a), Section 4.7, Section 5.2(a) and Section 5.10) shall be true and correct in all respects, both as of the date of this Agreement and as of the Closing Date, Date as though made on and as of the Closing Date, except where such date failures to be so true and correct (except without regard to the extent any “materiality,” Sodium Material Adverse Effect and similar qualifiers contained in such representation representations and warranty expressly speaks as of an earlier datewarranties) would not, in which case as of such earlier date); and the aggregate, reasonably be expected to have a Sodium Material Adverse Effect, (ii) the other representations Section 4.2(a) and warranties of Parent set forth in Article IV Section 5.2(a) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) both as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date, except for any immaterial inaccuracies, and (iii) Section 4.7 and Section 5.10 shall be true and correct both as if made at of the date of this Agreement and as of such time (except to the extent expressly Closing Date as though made as of an earlier datethe Closing Date; provided, in which case as of such date)however, except where the failure of such that representations and warranties to that are made as of a particular date or period shall be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained the manner set forth in such representations and warrantiesclauses (i), individually (ii) or in the aggregate(iii), have not had and would not reasonably be expected to have a Parent Material Adverse Effectas applicable) only as of such date or period. (b) Parent Sodium, Sodium US and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by each of them prior to the Effective Time. (c) Since September 30Sodium, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent Sodium US and Merger Sub shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent Sodium, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b7.2(a) and Section 6.2(c7.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth herein (i) The Parent Fundamental Representations with respect to Section 4.2(a), Section 4.3(a) and Section 4.17 shall be true and correct in all respects, as of the date of this Agreement both when made and at and as of the Closing Date, as though if made on at and as of such date time (except to the extent any such representation and warranty expressly speaks made as of an earlier date, in which case as of such earlier date); , in all respects (except in the case of Section 4.2(a) for such inaccuracies as are de minimis in the aggregate) and (ii) the with respect to all other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement both when made and at and as of the Closing Date, 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 date), except in the case of clause (ii) where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or “Parent Material Adverse Effect” or similar qualifiers contained in such representations set forth therein) does not have, and warranties)would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Each of Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there There shall not have occurred any event, change, effect, development, state of facts, circumstance, condition or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The shares of Parent Common Stock Company shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, a written tax opinion, in form and substance reasonably satisfactory to be issued in the Company, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code (the “Company Tax Opinion”); it being understood that in rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall be entitled to rely upon customary representations provided by the relevant parties. (f) The Company shall have received a copy of the Parent Tax Opinion. (g) (i) the Company Approvals and the Parent Approvals shall have been approved obtained (including, in each case, the expiration or termination of the waiting periods (and any extensions thereof) under the HSR Act applicable to the Merger and the Transactions) at or prior to the Effective Time, and such approvals shall have become Final Orders, and (ii) such Final Orders of the FERC, the FTC or the DOJ shall not impose terms or conditions that (a) individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect (without giving effect to the Merger) or (b) individually or in the aggregate (giving effect to any such actions required by the Applicable PSCs) would reasonably be expected to have a Parent Material Adverse Effect (determined after giving effect to the Merger), and such Final Orders of the Applicable PSCs shall not impose terms or conditions that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (provided that for listing on these purposes, Parent and its Subsidiaries, taken as a whole, shall be deemed to be a consolidated group of entities of the NYSEsize and scale of the Company and its Subsidiaries, subject taken as a whole). “Final Order” means action by the relevant Governmental Entity that has not been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to official notice which any waiting period prescribed by Law before the Transactions may be consummated has expired (a “Final Order Waiting Period”) and as to which all conditions to the consummation of issuancethe Transactions prescribed by Law, regulation or order required to be satisfied at or prior to the Effective Time have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than Section 4.2, Section 4.3 and Section 4.10(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, Date as if though made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct Closing Date (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “”, Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties), individually or except where such failures to be so true and correct would not, in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) Section 4.3 shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 4.2 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 4.10(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iv), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent its general partner, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The shares Parent shall have received from Parent’s Counsel, the following written opinions dated as of the Closing Date and upon which the Company shall be expressly entitled to rely: (i) an opinion from Xxxxxxx XxXxxxxxx LLP to the effect that for U.S. federal income tax purposes, Parent should not be treated as an investment company for purposes of section 721(b) of the Code and (ii) an opinion from Xxxxxx & Xxxxxxx LLP to the effect that for U.S. federal income tax purposes, 90% of the current gross income of Parent Common Stock constitutes qualifying income within the meaning of Section 7704(d) of the Code and Parent will be treated as a partnership for federal income tax purposes pursuant to Section 7704(c) of the Code. In rendering such opinion, Parent’s Counsel shall be issued entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Merger Tax Representation Letters described in Section 5.16. (f) The Company shall have been approved received from the Company’s Counsel, a written opinion dated as of the Closing Date to the effect that for listing U.S. federal income tax purposes the Merger should qualify under Section 721(a) of the Code, except to the extent that a holder of Series B Units receives money or other property, other than Common Units and other than a reasonable guaranteed payment, a reasonable preferred return, or an operating cash flow distribution (as each such term is defined in Treasury Regulation section 1.707-4), from Parent on any date through and including the second anniversary of the Closing. In rendering such opinion, the Company’s Counsel shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 5.16 and on the NYSE, subject to official notice opinions of issuanceParent’s Counsel described in Section 6.2(e).

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of ETP and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than in Sections 4.2(a), 4.2(g), 4.10(b) and 4.10(c)) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent ETP Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent an ETP Material Adverse Effect, (ii) Sections 4.2(a) and 4.2(g) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for any immaterial inaccuracies, and (iii) Sections 4.10(b) and 4.10(c) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) or (iii), as applicable) only as of such date or period. (b) Parent and Merger Sub ETP shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent ETP shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized the Chief Executive Officer or another senior officer of Parent its general partner, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares of Parent Common Stock Units to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance. (e) ETP shall have received the following written opinions, on the basis of assumptions, representations and warranties set forth or referred to in such opinions, dated as of the Closing Date, and upon which the Company and its counsel shall expressly be entitled to rely: (i) an opinion from Xxxxxxx XxXxxxxxx LLP to the effect that, for U.S. federal income tax purposes, ETP should not be treated as an investment company for purposes of Section 721(b) of the Code, and (ii) an opinion from Xxxxxx & Xxxxxxx LLP to the effect that for U.S. federal income tax purposes, 90% of the current gross income of ETP constitutes qualifying income within the meaning of Section 7704(d) of the Code and ETP is treated as a partnership for federal income tax purposes pursuant to Section 7704(c) of the Code. In rendering such opinions, such counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of ETP, Merger Sub or others reasonably requested by such counsel. (f) The Company shall have received a written opinion from Wachtell, Lipton, Xxxxx & Xxxx, on the basis of assumptions, representations and warranties set forth or referred to in such opinion, dated as of the Closing Date, to the effect that for U.S. federal income tax purposes the exchange of Company Common Stock for Common Units pursuant to the Merger should qualify as an exchange to which Section 721(a) of the Code applies. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of ETP, Merger Sub, the Company or others reasonably requested by such counsel and on the opinions described in Section 6.2(e). (g) Parent shall have executed and delivered to the Company the Partnership Agreement Amendment substantially in the form set forth in Annex A to this Agreement (the “Partnership Agreement Amendment”), with such Partnership Agreement Amendment to be effective as of the Effective Time.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger and the other transactions contemplated by this Agreement is further subject to the fulfillment of, satisfaction or (to the extent permitted by Law) waiver by the Company at or prior to the Effective Time of, Closing of the following additional conditions: (a) the representations and warranties of Parent and Merger Sub (i) The Parent Fundamental Representations contained in Section 4.2(a) shall be true and correct in all respects, respects (other than de minimis inaccuracies) both as of the date of this Agreement and as of the Closing Date, Date as though made on and as of such date the Closing Date (except to the extent any such representation representations and warranty warranties are expressly speaks made as of an earlier a specific date, in which case such representations and warranties shall be so true and correct as of such earlier specific date); and , (ii) contained in Sections 4.2(b), 4.2(c), 4.3, 4.4 and 4.19 (together with Section 4.2(a), the other representations and warranties of “Parent set forth in Article IV Fundamental Representations”) shall be true and correct (in all material respects, without giving effect to any “materiality,” “in all material respects,” materiality or “Parent Material Adverse Effect” or similar qualifiers) qualifications therein, both as of the date of this Agreement and as of the Closing Date, Date as if though made at on and as of such time the Closing Date (except to the extent such representations and warranties are expressly made as of an earlier a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) and (iii) contained in this Agreement (other than the Parent Fundamental Representations) shall be true and correct, without giving effect to any materiality or “Parent Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)correct, individually or in the aggregate, have has not had had, and would not reasonably be expected to have have, a Parent Material Adverse Effect.; (b) Parent and Merger Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants each of their respective obligations required by under this Agreement to be performed or complied with by them on or prior to the Effective Time.Closing; (c) Since September 30, 2013since the date of this Agreement, there shall not have occurred been any event, circumstance, occurrence, effect, fact, development or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a Parent Material Adverse Effect.; and (d) Parent the Company shall have delivered to the Company received a certificate executed signed by an authorized executive officer of Parent certifying as to the effect that the conditions matters set forth in Section 6.2(a6.3(a), Section 6.2(b6.3(b) and Section 6.2(c) have been satisfied6.3(c). (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger and the other transactions contemplated by this Agreement is further subject to the fulfillment of, satisfaction or (to the extent permitted by Law) waiver by the Company at or prior to the Effective Time of, Closing of the following additional conditions: (a) the representations and warranties of Parent and Merger Sub (i) The contained in Section 4.2 and Section 4.7, (the “Parent Fundamental Representations Representations”) shall be true and correct in all material respects, without giving effect to any materiality or “Parent Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date, Date as though made on and as of such date the Closing Date (except to the extent any such representation representations and warranty warranties are expressly speaks made as of an earlier a specific date, in which case such representations and warranties shall be so true and correct as of such earlier specific date); ) and (ii) contained in this Agreement (other than the other representations and warranties of Parent set forth in Article IV Fundamental Representations) shall be true and correct (correct, without giving effect to any “materiality,” “in all material respects,” materiality or “Parent Material Adverse Effect” or similar qualifiers) qualifications therein, both as of the date of this Agreement and as of the Closing Date, Date as if though made at on and as of such time the Closing Date (except to the extent such representations and warranties are expressly made as of an earlier a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)correct, individually or in the aggregate, have has not had had, and would not reasonably be expected to have have, a Parent Material Adverse Effect.; (b) Parent and Merger Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants each of their respective obligations required by under this Agreement to be performed or complied with by them on or prior to the Effective Time.Closing; (c) Since September 30, 2013since the date of this Agreement, there shall not have occurred been any event, circumstance, occurrence, effect, fact, development or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a Parent Material Adverse Effect.; and (d) Parent the Company shall have delivered to the Company received a certificate executed signed by an authorized executive officer of Parent certifying as to the effect that the conditions matters set forth in Section 6.2(a6.3(a), Section 6.2(b6.3(b) and Section 6.2(c) have been satisfied6.3(c). (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect consummate the Merger is further shall be subject to the fulfillment ofsatisfaction of the following additional conditions, or the waiver unless waived (if permissible) by the Company at Company: (a) Parent and Sub shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time ofTime, and except as contemplated or permitted by this Agreement, the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations shall be true and correct Sub contained in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation representations and warranty expressly speaks warranties speak as of an earlier date, date in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement when made and on and as of the Closing Date, Effective Time as if made at on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.; (b) Parent and Merger Sub The Company shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to received a certificate, dated the Effective Time., signed by the President or Chief Executive Officer or a Senior Vice President of Parent and Sub, certifying that the conditions specified in Section 6.2(a) have been fulfilled; (c) Since September 30The Company shall have received a letter from Deloitte & Touche LLP, 2013Parent's independent auditors, there dated a date within two business days before the date on which the Registration Statement shall not have occurred become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Registration Statement (including, among other things, that the Merger will be treated as a Parent Material Adverse Effect.pooling of interests under Accounting Principles Board Opinion No. 16; (d) Parent The Company shall have delivered received an opinion from Gibsxx, Xxnn & Crutxxxx XXX, the Company's legal counsel, that the Merger will be treated for federal income tax 40 purposes as a reorganization within the meaning of Section 368(a)(1)(A) and Section 368(a)(2)(E) of the Code; and (e) On or prior to the mailing date of the Proxy Statement/Prospectus referred to in Section 5.14, the Company a certificate executed by shall have received an authorized officer of Parent certifying updated opinion addressed to it from Montxxxxxx Xxxurities to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) Exchange Rate is fair from a financial point of view to the Company and Section 6.2(c) have been satisfiedits stockholders. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, satisfaction or the waiver by the Company in writing at or prior to the Effective Time of, of the following additional conditions: : (a) The representations and warranties of Parent and Merger Sub contained in Sections 6.1 and 6.2 that (i) The Parent Fundamental Representations are not made as of a specific date shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier dateClosing Date, in which case as of such earlier date); and (ii) the are made as of a specific date shall be true and correct as of such date. The other representations and warranties of Parent set forth and Merger Sub contained in Article IV this Agreement that (A) are not made as of a specific date shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, as if though made at on and as of such time the Closing Date, and (except to the extent expressly B) are made as of an earlier date, in which case a specific date shall be true and correct as of such date, in each case of sub-clauses (A) and (B), except where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or “Parent Material Adverse Effect” or similar qualifiers contained set forth in such representations and warranties), individually or in the aggregate, have has not had and would not reasonably be expected to have a Parent Material Adverse Effect. ; (b) Each of Parent and Merger Sub shall have performed in all material respects all obligations and or complied in all material respects respects, with all its obligations, agreements and covenants required by under this Agreement to be performed or complied with by them it on or prior to the Effective Time. ; and (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated as of the Closing Date, signed by an authorized officer of Parent and certifying as to the effect that satisfaction of the conditions specified in Section 9.2(a) and Section 9.2(b). Section 9.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver by Parent in writing at or prior to the Effective Time of the following additional conditions: (a) The representations and warranties of the Company contained in Sections 5.1, Section 5.2(b), 5.3, 5.4, 5.9(a), 5.20, 5.21, 5.22 and 5.23 of this Agreement that (i) are not made as of a specific date shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, and (ii) are made as of a specific date shall be true and correct in all respects as of such date, except for any inaccuracy in the representations of the Company in Section 5.3 that results in de minimis liability, cost or expense to Parent or Merger Sub. The other representations and warranties of the Company contained in this Agreement that (A) are not made as of a specific date shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, and (B) are made as of a specific date shall be true and correct as of such date, in each case of sub-clauses (A) and (B), except where the failure of such representations and warranties to be true and correct (without 61 giving effect to any limitation as to “materiality” or “ Company Material Adverse Effect” set forth in such representations and warranties (other than the representation in Section 6.2(a5.9(a))), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (b) The Company shall have performed or complied, in all material respects, with its obligations, agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated as of the Closing Date, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Section 6.2(b9.3(a) and Section 6.2(c) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.9.3(b). ARTICLE X

Conditions to Obligation of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, Closing Date of the following additional conditions: (a) (i) The Parent Fundamental Representations and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all respects, material respects on and as of the date of this Agreement made and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement on and as of the Closing Date, Date as if made at and as of such time (except date, and the Company shall have received a certificate of the Chief Executive Officer, the President or a Vice President of Parent and of the Chief Executive Officer, the President or a Vice President of Subsidiary, in form and substance reasonably satisfactory to the extent expressly made as of Company, to that effect; (b) the Company shall have received an earlier dateopinion from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx LLP, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company setting forth the matters set forth in Exhibit 8.2(b); -------------- (c) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which case as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications have resulted in or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have constitute a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect.; (d) Parent no governmental authority shall have delivered promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to the Company a certificate executed by an authorized officer of Parent certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.Merger; and (e) The shares Parent and Subsidiary shall have signed a certificate in substantially the form attached hereto as Exhibit 8.2(e) concerning certain -------------- factual matters relating to the qualification of Parent Common Stock to be issued in the Merger shall have been approved for listing on as a tax deferred reorganization under the NYSE, subject to official notice provisions of issuanceSection 368 of the Code.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver in writing by the Company Company, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Section 4.1 (Organization) and Section 4.2(a) (Corporate Authority Relative to this Agreement) (collectively, the “Parent Fundamental Representations Representations”) to the extent qualified by materiality, “Parent Material Adverse Effect” or other qualifications based on the word “material” or similar phrases therein ” shall be true and correct in all respects, respects at and as of the date of this Agreement hereof and the Effective Time as if made at and as of the Closing Date, as though made on Effective Time and as all of such date (except the Parent Fundamental Representations to the extent any such representation and warranty expressly speaks as of an earlier datenot qualified by materiality, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or other qualifications based on the word “material” or similar qualifiers) phrases therein shall be true and correct in all material respects at and as of the date of this Agreement hereof and as of the Closing Date, Effective Time as if made at and as of such time the Effective Time and (except to ii) Article IV (other than the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct Parent Fundamental Representations) (without regard giving effect to any qualifications or exceptions as to “materiality,” “in all material respects,” , “Parent Material Adverse Effect” or other qualifications based on the word “material” or similar qualifiers contained phrases therein), shall be true and correct as of immediately prior to the Effective Time as if made at and as of the date hereof and the Effective Time except, in each case, (x) for such representations and warranties)warranties that relate to a specific date or time (which need only be true and correct as of such date or time) and (y) for such failures to be true and correct, individually or in the aggregate, as have not had and or would not reasonably be expected likely to have a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all each of its covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent The Company shall have delivered to received certificates of the Company a certificate executed by an authorized Chief Executive Officer or other senior executive officer of Parent, dated as of the Closing Date, certifying for and on behalf of Parent certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Parent shall, immediately prior to the Effective Time, pay the Payoff Amount in accordance with terms of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuancePayoff Letters.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, satisfaction or the waiver by the Company at or prior to the Effective Time of, of the following additional conditions: (a) (i) The Each of Parent Fundamental Representations and Merger Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time; provided, however, that if any breach in the performance of any such obligation shall occur and such breach is capable of being cured, and so long as the Parent is diligently attempting to effect such cure, the Parent shall have five (5) Business Days from the date it has knowledge of such breach to cure such breach; and (ii) the representations and warranties of Parent and Merger Sub contained in this Agreement shall be (A) true and correct in all material respects (unless qualified as to materiality or a Parent Material Adverse Effect, all of which such representations and warranties shall be true and correct in all respects) as of the date of this Agreement (except to the extent such representations and warranties speak as of a specified date, in which case such representations and warranties qualified as to materiality or a Parent Material Adverse Effect shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV those not so qualified shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers, as of such specified date), and (B) true and correct in all respects as of the date of this Agreement and as of the Closing Date, Effective Time as if made at and as of such time (except to the extent expressly made such representations and warranties speak as of an earlier a specified date, they need only be true and correct in which case all respects as of such specified date), except except, in the case of this clause (B), where the failure of all such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)correct, individually or in the aggregate, have has not had and had, or would not reasonably be expected to have a Parent Material Adverse Effect.; (b) Parent and Merger Sub The Company shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company received a certificate executed by of an authorized executive officer of Parent certifying as to the effect that satisfaction of the conditions set forth in Section 6.2(a5.2(a); and (c) Consistent with Section 1.8(a), Section 6.2(b) and Section 6.2(c) Parent shall have been satisfied. (e) The shares caused to be deposited with the Paying Agent cash in an aggregate amount sufficient to pay the Merger Consideration in respect of Parent all Company Common Stock plus cash to be issued in pay for the Merger shall have been approved for listing on the NYSE, subject Company Stock Options and Company Warrants pursuant to official notice of issuanceSection 4.7.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than those representations and warranties set forth in clause 6.2(a)(ii) below) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect on Parent and similar qualifiers contained in such representations and warranties)) has not had, and would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse EffectEffect on Parent, and (ii) Section 4.1(a) (Qualification, Organization, Subsidiaries, etc.), Section 4.2(a) and Section 4.2(b) (Authorization) and Section 4.5 (Finders or Brokers) (A) that are qualified by “materiality” or Material Adverse Effect on Parent shall be true and correct in all respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (B) that are not qualified by “materiality” or Material Adverse Effect on Parent shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in the above clauses (i) and (ii), as applicable) only as of such date or period; (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time.; and (c) Since September 30, 2013, there shall not have occurred a Each of Parent Material Adverse Effect. (d) Parent and Mxxxxx Sub shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent its President or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations this Agreement (other than in Section 4.1(c), Section 4.1(d) and Section 4.7(b)) shall be true and correct in all respects, both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement at and as of the Closing Date, 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 date), except where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or Effect and similar qualifiers contained in such representations and warranties)) would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) Section 4.1(c) and Section 4.1(d) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for any de minimis inaccuracies, and (iii) Section 4.7(b) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a particular date or period need be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) Each of Parent and Merger Sub shall have performed have, in all material respects respects, performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent the Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at Company, to the extent permitted by applicable Law, on or prior to the Effective Time of, the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub set forth in Section 5.1, Section 5.2, Section 5.3, and Section 5.10(b) shall be true and correct in all respects, respects both at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on at and as of such date the Closing Date (except to the extent any such representation for representations and warranty warranties that expressly speaks speak only as of an earlier datea specific date or time other than the Closing Date, in which case need only be true and correct as of such earlier dateother date or time); , except for de minimis inaccuracies with respect to the representations and warranties in Section 5.2 and Section 5.3, and (ii) the other representations and warranties of Parent and Merger Sub set forth in Article IV V other than those referenced in clause (i) of this Section 7.2(a) shall be true and correct (without giving effect disregarding any qualifications with respect to any “materiality,” “in all material respects,” materiality or “Parent Material Adverse Effect” or similar qualifierscontained therein) both at and as of the date of this Agreement and at and as of the Closing Date, Date as if though made at and as of such time the Closing Date (except to the extent for representations and warranties that expressly made speak only as of an earlier datea specific date or time other than the Closing Date, in which case need only be true and correct as of such dateother date or time), except except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have has not had and would not reasonably be expected to have have, individually or in the aggregate, a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013the date of this Agreement, there shall not have occurred any event, change, effect, development, condition, state of facts or occurrence that, individually or in the aggregate, has had or would be reasonably be expected to have a Parent Material Adverse Effect. (d) Parent shall have executed and delivered the employment agreement with Xxxxxxx Xxxxx in the form attached hereto as Exhibit D. (e) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized executive officer of Parent Parent, certifying to the effect that the conditions set forth in Section 6.2(aSections 7.2(a), Section 6.2(b7.2(b) and Section 6.2(c7.2(c) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in (i) The Parent Fundamental Representations Sections 4.1 and 4.2 shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) respects as of the date of this Agreement and as of the Closing Date, as if made at as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) this Agreement (other than the representations and warranties in Sections 4.1 and 4.2) shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time date (except to the extent expressly made as of an earlier date, in which case as of such date), except (in the case of this clause (B)) where the failure of such representations and warranties to be so true and correct (without regard giving effect to any qualifications or exceptions limitation as to “materiality,” “in all material respects,” or “Parent Material Adverse Effect” set forth in any individual such representation or similar qualifiers contained in such representations and warranties)warranty) would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on delivered the NYSE, subject to official notice of issuancePayoff Funds in accordance with the Payoff Letter and Section 5.17.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, (or the waiver by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) (i) The Parent Fundamental Representations the representations and warranties of IAC, NewCo and Merger Sub set forth in Section 4.2(a) shall be true and correct in all respects, respects (except for only de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, as though made on and as of such date the Closing Date (except to the extent any such representation and warranty expressly speaks made as of an earlier date, in which case as of such earlier date); and , (ii) the other representations and warranties of Parent IAC, NewCo and Merger Sub set forth in Article IV Section 4.2 (other than Section 4.2(a) which is addressed in the preceding clause (i)), Section 4.3(a), Section 4.10(b) and Section 4.16 shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement , both when made and at and as of the Closing Date, 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 date) and (iii) the other representations and warranties of IAC, NewCo and Merger Sub set forth in Article IV shall be true and correct both at and as of the date of this Agreement and 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 as of such date), except with respect to this clause (iii) where the failure of such representations and warranties failures to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or and similar qualifiers contained in such representations and warranties)) have not and would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent HomeAdvisor Material Adverse Effect.; (b) Parent IAC, NewCo and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time.; (c) Since September 30, 2013the date of this Agreement, there shall not have occurred been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent HomeAdvisor Material Adverse Effect.; (d) Parent IAC shall have delivered to the Company a certificate executed certificate, dated the Closing Date and signed by an authorized officer of Parent IAC’s Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) with respect to the representation, warranties and obligations of IAC have been satisfied.; (e) The shares A certificate of Parent Common Stock to be issued in NewCo and of Merger Sub, dated the Merger Closing Date and signed by duly authorized officers thereof, shall have been approved for listing delivered to the Company certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) with respect to the representations, warranties and obligations of NewCo or Merger Sub, as applicable, have been satisfied; (f) The Company shall have received a written opinion from Sidley Austin LLP, in form and substance reasonably acceptable to the Company, dated as of the Closing Date, and based on the NYSEfacts, subject representations, assumptions and exclusions set forth or referred to official notice in such opinion, to the effect that either (A) the Merger (or, the Merger and a subsequent forward merger described in Section 5.13(d), taken together) will qualify as a “reorganization” within the meaning of issuanceSection 368(a) of the Code or (B) the Merger, when combined with the Contribution and the IAC Share Issuance, will qualify as an exchange described in Section 351(a) of the Code. Such counsel shall be entitled to rely upon representation letters from each of NewCo, Merger Sub and the Company (and, in the case of the opinion described in clause (B), IAC) in form and substance satisfactory to such counsel; (g) IAC shall deliver each duly executed Ancillary Agreement to the Company and each Ancillary Agreement shall be, or will automatically be at the Effective Time, in full force and effect; and (h) the Contribution and the IAC Share Issuance shall have been completed in accordance with the Contribution Agreement.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger and the other transactions contemplated hereby is further subject to the fulfillment of, (or the waiver in writing by the Company Company) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub contained in Article IV (except for the representations and warranties contained in Section 4.1, the first two sentences of Section 4.2(a), Section 4.3 and Section 4.7 and disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct in all respects, as of the date of this Agreement both when made and at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, Date 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 date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)would not reasonably be expected to, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) the representation and warranty of Parent and Merger Sub contained in Section 4.3 shall be true and correct in all respects both when made and at and as of the Closing Date and (iii) the representations and warranties of Parent and Merger Sub contained in Section 4.1, the first two sentences of Section 4.2(a) and Section 4.7 shall be true and correct in all material respects both when made and at and as of the Closing Date 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 date). (b) Parent and Merger Sub shall have performed and complied with, in all material respects respects, all material obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated as of the Closing Date and signed by an authorized officer of Parent its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub contained in Section 4.1 (Qualification, Organization) and Section 4.2(a) (Corporate Authority) shall be true and correct in all respectsrespects (except, in the case of Section 4.1 (a) for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date, Date as though made on at and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); Closing Date and (ii) the other representations and warranties of Parent and Merger Sub set forth in Article IV this Agreement (other than in clause (i) above) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “respects (disregarding any materiality or Parent Material Adverse Effect” or similar qualifiersEffect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, 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 date), except where the failure of such representations and or warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties)would not have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to effect consummate the Merger is further shall be subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following additional conditions: (a) (i) The Parent Fundamental Representations the representations and warranties of CytRx and Merger Subsidiary set forth in Sections 4.03(a) — (c) (Authority; Non-Contravention) shall be true and correct in all respects, respects as of the date of this Agreement hereof and as of the Closing Date, Effective Time as though if made on and as of such date the Effective Time (except to the extent any such representation and warranty expressly speaks or, if given as of an earlier a specific date, in which case at and as of such earlier date); ) and (ii) the other representations and warranties of Parent set forth CytRx and Merger Subsidiary contained in Article IV this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or CytRx Material Adverse Effect, shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) respects as of the date of this Agreement hereof and as of the Closing Date, Effective Time as if made at on and as of such time the Effective Time (except to the extent expressly made or, if given as of an earlier a specific date, in which case at and as of such date), except in the case of this clause (ii) (x) for changes expressly permitted by this Agreement or (y) where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent CytRx Material Adverse Effect.. The Company shall have received a certificate of the chief executive officer or the chief financial officer of the CytRx to that effect; and (b) Parent each of CytRx and Merger Sub Subsidiary shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed by it under this Agreement on or complied with by them prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent and the Company shall have delivered to the Company received a certificate executed by an authorized of the chief executive officer or the chief financial officer of Parent certifying CytRx to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfiedeffect. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations and Merger Sub contained in Section 4.1 (Qualification, Organization) and Section 4.2(a) (Corporate Authority) shall be true and correct in all respectsrespects (except, in the case of Section 4.1(a) for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent and Merger Sub set forth in Article IV shall be true and correct this Agreement (without giving effect to any “materiality,” “other than in all material respects,” clause (i) above) which are qualified by a “Parent Material Adverse Effect” or similar qualifiers) “materiality” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date, Date as if though made at and as of such time the Closing Date and (except to iii) the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true of Parent and correct Merger Sub set forth in this Agreement (without regard to any qualifications or exceptions as to “materiality,” “other than in all material respects,” clause (i) above) which are not qualified by a “Parent Material Adverse Effect” or similar qualifiers contained “materiality” qualification shall be true and correct in such all material respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that, with respect to clauses (i), (ii) or (iii) hereof, representations and warrantieswarranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), individually (ii) or in the aggregate(iii), have not had and would not reasonably be expected to have a Parent Material Adverse Effectas applicable) only as of such date or period. (b) Parent and Merger Sub shall have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time. (c) Since September 30, 2013, there shall not have occurred a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c6.2(b) have been satisfied. (ed) The shares Each of Parent Common Stock to be issued in the Merger approvals listed on Section 6.2(d) of the Company Disclosure Letter shall have been approved for listing on the NYSE, subject to official notice of issuanceobtained.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver by the Company at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of Parent Fundamental Representations contained herein (other than the representation and warranties set forth in Section 4.2(a), the first sentence of Section 4.2(c) and Section 4.3(a)) shall be true and correct in all respects, as of the Effective Time with the same effect as though made as of the Effective Time except (x) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date, as though made on and or some other date will be determined as of such date and not as of the Effective Time and (except to the extent y) where any such representation failure of the representations and warranty expressly speaks as of an earlier datewarranties in the aggregate to be true and correct would not reasonably be expected to have, individually or in which case as of such earlier datethe aggregate, a Material Adverse Effect on Parent (without giving effect to any “materiality” or “Material Adverse Effect” qualifications contained therein); and (ii) the other representations and warranties of Parent set forth in Article IV Section 4.2(a), the first sentence of Section 4.2(c) and Section 4.3(a) shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) respects both when made and at and as of the Effective Time except that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Closing Date, 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 date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.Effective Time; (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them it prior to the Effective Time.; (c) Since September 30, 2013the date of this Agreement, there shall not have occurred been no event, occurrence, development or state of circumstances or facts that has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.Effect on Parent; and (d) Parent shall have delivered to the Company a certificate executed certificate, dated the Effective Time and signed by an authorized officer of Parent its Chief Executive Officer or any Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.2(a), Section 6.2(b) and Section 6.2(c(b) have been satisfied. (e) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment of, satisfaction or the waiver by the Company at or prior to the Effective Time of, of the following additional conditions: (a) (i) The Parent Fundamental Representations shall be true and correct in all respects, as Each of the date of this Agreement and as of the Closing Date, as though made on and as of such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of Parent set forth in Article IV shall be true and correct (without giving effect to any “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and as of the Closing Date, 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 date), except where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “in all material respects,” “Parent Material Adverse Effect” or similar qualifiers contained in such representations and warranties), individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Parent AFI and Merger Sub shall have performed in all material respects all its obligations and complied in all material respects with all covenants required by under this Agreement required to be performed by it at or complied with by them prior to the Effective Time. ; and the representations and warranties of AFI and Merger Sub contained in this Agreement shall be true and correct in all respects when made and as of the Effective Time as if made at such time (c) Since September 30except to the extent such representations and warranties speak as of a specified date, 2013they need only be true and correct in all respects as of such specified date), there shall not have occurred a Parent interpreted without giving effect to the words “materially” or “material” or to any qualifications based on such terms or based on the defined term AFI Material Adverse Effect., except where the failure of all such representations and warranties to be true and correct, in the aggregate, has not had, or would not reasonably be expected to have a AFI Material Adverse Effect. Without limiting the foregoing, the representations and warranties of AFI and Merger Sub contained in the first sentence of Sections 5.2.1, 5.2.2 and 5.2.3 shall be true and correct in all respects with regard to any such representations or warranties containing the qualifications “materially” or “material” or any other qualification based on such terms or the defined term AFI Material Adverse Effect, and shall be true and correct in all material respects, both individually and in the aggregate, with regard to any such representation and warranty not so qualified, in each case as of the Effective Time (or to the extent such representations or warranties speak as of an earlier date, they shall be true and correct in all material respects or all respects, as applicable, as of such earlier date); (db) Parent The Company shall have delivered received a certificate of an executive officer of AFI as to the Company a certificate executed by an authorized officer satisfaction of Parent certifying to the effect that the conditions set forth in Section 6.2(a8.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.; and (ec) The shares Company received written approval of Parent Common Stock the Thrift Merger from the OTS, to be issued in the Merger shall have been approved for listing on extent the NYSE, subject to official notice of issuancesame is required by Applicable Law.