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

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company): (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (additional conditions, any of which may be waived if waived in whole or in part writing by the Company):: (a) The representations and warranties of Parent and each Merger Sub contained herein shall be accurate in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as of the Closing Date with the same effect as though made as of the Closing Date except (i) for inaccuracies arising from changes or actions contemplated by this Agreement, (ii) 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 (subject to the qualification set forth in this Agreement clause (except those iii) below) and (iii) where any such failure of the representations and warranties set forth in the proviso below) shall to be true and correct in all respects (without giving effect to any materiality or Parent would not constitute a Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Parent; (b) Parent and the Merger Subs Sub shall have performed or complied with, as applicable, in all material respects the obligations, agreements all obligations and complied in all material respects with all covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and prior to the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Closing Date; (c) Since During the period from the date hereofhereof to the Closing Date, there shall not have occurred been any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and on Parent; (d) The shares of Parent Common Stock issuable in the Merger shall have been approved for listing on the Nasdaq, subject only to official notice of issuance; and (e) Parent shall have delivered to the Company shall have received a certificate validly executed certificate, dated the Closing Date and signed on behalf of Parent by its chief executive officer Chairman of the Board, Chief Executive Officer and chief financial officer President or a Senior Vice President, certifying that this condition has the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company): (a) The representations and warranties of Parent and each the Merger Sub Subs set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), ) and 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The (i) Parent and Sub shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date; (ii) the representations and warranties of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect regard to any materiality or Parent Material Adverse Effect qualifier thereinqualifiers), as in each case when made and, unless a representation speaks of the date of this Agreement a specific date, on and as of the Closing Date with the same force and effect as though if made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except where failures to the extent that breaches thereofbe so true could not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; providedPROVIDED HOWEVER, that such Parent Material Adverse Effect qualification shall be inapplicable with respect to the representations and warranties of Parent contained in Sections 3.2 and the Merger Subs set forth in 3.10 (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 which representations shall be true and correct at the applicable times in all respects (except, with respect to Sections 4.3(amaterial respects) and 4.3(b), to (iii) the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its the chief executive officer and chief financial officer certifying that this condition has been satisfiedof Parent to such effect. (b) Parent The opinion, based on appropriate representations of the Company and Parent, of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, to the effect that (i) the Merger Subs shall have performed or complied withwill be treated for Federal income Tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) Parent, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them Sub and the Company will each be a party to the reorganization under the meaning of Section 368(b) of the Code, dated on or about the date of and referred to in the Proxy Statement as first mailed to stockholders of the Company, which shall not have received a certificate validly executed and signed on behalf been withdrawn or modified in any material respect as of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedthe Closing Date. (c) Since At any time on or after the date hereof, of this Agreement there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance event or occurrence thatwhich could, individually or in the aggregate, has had or would reasonably be expected likely to have cause a Parent Material Adverse Effect Effect. (d) There shall not be pending or threatened by any governmental authority any Action before any United States court or other governmental body of competent jurisdiction, which challenges or seeks to restrain or prohibit the consummation of the Merger. (e) All approvals or consents of any governmental authority (whether domestic, foreign or supranational) in connection with the Merger and the consummation of the other transactions contemplated hereby (including all relevant statutory, regulatory or other governmental waiting period expirations) referred to in Section 2.5(a) of the Company Disclosure Schedule shall have received a certificate validly executed been obtained, have been declared or filed or be deemed to have occurred, as the case may be, and signed on behalf of Parent by its chief executive officer all such approvals or consents shall be in full force and chief financial officer certifying that this condition has been satisfiedeffect.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate the Merger is subject to the satisfaction on at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company): (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except where the failure of such representations and warranties to the extent that breaches thereofbe true and correct, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs Sub set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), ) and 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), ) shall be so true and correct in all material respects and the representations and warranties of the Parent set forth in Section 4.7(b) and 4.23 shall be true and correct in all respects (exceptrespects, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and each case as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief a senior executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs Sub shall have performed or complied with, as applicable, in all material respects the obligations, with all covenants and agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them prior to the Closing, and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief a senior executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations and warranties of Parent and each Merger Sub set forth shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement (except those representations and warranties set forth in the proviso below) shall required to be true and correct in all respects (without giving effect performed or complied with at or prior to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth Sub contained in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 this Agreement qualified as to materiality shall be true and correct in all respects (exceptrespects, with respect to Sections 4.3(a) and 4.3(b)those not so qualified shall be true in all material respects, to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement each case when made and on and as of the Closing Date with the same force and effect as though if made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except as expressly contemplated or otherwise expressly permitted by this Agreement. The Company shall have received a certificate validly executed and signed on behalf of Parent by its the chief executive officer and chief financial officer certifying that this condition has been satisfiedof Parent to such effect. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the The Company shall have received an opinion of Sidley & Austin, in form and substance reasonably satisfactory to the Company, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes: (i) the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and the Company, Sub and Parent will each be a party to such reorganization within the meaning of Section 368(b) of the Code; (ii) no gain or loss will be recognized by Parent, Sub or the Company as a result of the Merger; (iii) no gain or loss will be recognized by the shareholders of the Company upon the exchange of their Company Common Stock solely for shares of Parent Common Stock pursuant to the Merger, except with respect to cash, if any, received in lieu of fractional shares of Parent Common Stock; (iv) the aggregate tax basis of the shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger (including fractional shares of Parent Common Stock for which cash is received) will be the same as the aggregate tax basis of the Company Common Stock exchanged therefor; (v) the holding period for shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger will include the holding period of the Company Common Stock exchanged therefor, provided such Company Common Stock was held as capital assets by the shareholder at the Effective Time; and (vi) a shareholder of the Company who receives cash in lieu of a fractional share of Parent Common Stock will recognize gain or loss equal to the difference, if any, between such shareholders's tax basis in such fractional share (as described in clause (iv) above) and the amount of cash received. In rendering such opinion, Sidley & Austin may receive and rely upon representations contained in a certificate validly executed and signed on behalf of the Company substantially in the form of the Company Tax Certificate attached to the Disclosure Schedule, a certificate of Parent by its chief executive officer substantially in the form of the Parent Tax Certificate attached to the Parent Disclosure Schedule and chief financial officer certifying that this condition has been satisfiedrepresentations contained in other appropriate certificates of the Company, Parent, certain shareholders of the Company, and others. (c) Since the date hereof, there There shall not have occurred be pending or threatened by any eventgovernmental entity any suit, changeaction or proceeding, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would which could reasonably be expected expected, if adversely determined, to have result in criminal or material uninsured and unindemnified or unindemnifiable personal liability on the part of one or more directors of the Company, (i) challenging or seeking to restrain or prohibit the consummation of the Merger or (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, or to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, as a Parent Material Adverse Effect and result of the Company shall have received a certificate validly executed and signed on behalf Merger or any of Parent the other transactions contemplated by its chief executive officer and chief financial officer certifying that this condition has been satisfiedAgreement.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company Company, CTOP and Pinecreek OP to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations and warranties of Parent and each Parent, Merger Sub, CTOP Merger Sub set forth and Pinecreek Merger Sub contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect regard to any materiality or Parent Material Adverse Effect qualifier contained therein), on and as of the date of this Agreement hereof and on and as of the Closing Date as though if made on or at and as of such date the Closing Date (or, in the case of except for any representations and warranties that address matters only made as of a particular specified date, which shall be true and correct as of such the specified date), except where the failure of such representations and warranties to the extent that breaches thereofbe true and correct 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 the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a4.3(Capitalization), 4.3(bSection 4.5(Compliance), 4.3(dSection 4.6(SEC Documents), 4.3(eSection 4.7(Absence of Certain Changes), 4.4, 4.5(b)(i4.10(Taxes), 4.7(b4.12(Proxy Statement; Form S-4 Registration Statement; Other Information) and 4.23 shall 4.13 (Authorization for Parent Common Stock) need only be true and correct for purposes of satisfying the condition set forth in all respects (except, with respect to Sections 4.3(athis Section 7.2(a) if Parent has made and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of not revoked a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedStock Election. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) with all obligations required by this Agreement to be performed or complied with by each of them and it at or prior to the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedClosing Date. (c) Since the date hereof, there There shall not have occurred be instituted, pending or threatened any event, change, effect, development, state Action by a Governmental Entity as a result of facts, condition, circumstance this Agreement or occurrence that, individually or in any of the aggregate, has had or transactions contemplated herein which would reasonably be expected (i) to result in a claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, against a director, officer or employee of the Company or (ii) if Parent has made a Stock Election, to have a Parent Material Adverse Effect and (assuming for purposes of this Section 7.2(c) that the Merger shall have occurred); (d) The Company shall have received a certificate validly executed and signed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and (b) of this Section 7.2. (e) if Parent has made a Stock Election, the Company shall have received an opinion of counsel, based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others, dated as of the Closing Date, to the effect that, commencing with its chief executive officer inception Parent was organized in conformity with the requirements for qualification and chief financial officer certifying that taxation as a REIT under the Code, and its method of operation has enabled it to meet, and Parent has met, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code and Parent’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been satisfiedrevoked and only Cash Consideration shall be paid in the Merger.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate effect the Merger is are further subject to the satisfaction on or waiver at or prior to the Closing Date Effective Time of the following conditions (which may be waived in whole or in part by the Company):conditions: (a) There shall not have occurred any change, condition, event or development that has resulted in, or could reasonably be expected to result in, a material adverse effect on Parent; (b) The representations and warranties of Parent and each Merger Acquisition Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) that are qualified by materiality shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date Effective Time; (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the c) The representations and warranties of the Parent and the Merger Subs set forth Acquisition Sub in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 this Agreement that are not qualified by materiality shall be true and correct in all material respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Effective Time; (bd) Parent and the Merger Subs Acquisition Sub shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) all obligations required by this Agreement to be performed or complied with by them under this Agreement; (e) Parent and Acquisition Sub each shall have delivered to the Company a certificate to the effect that each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. conditions specified in Sections 7.03(a), (b), (c) Since and (d) is satisfied in all respects; (f) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which Parent or Acquisition Sub is a party, or by which they are bound, as may be required to be obtained by it in connection with the date hereofperformance of this Agreement, there shall not have occurred any event, change, effect, development, state the failure to obtain which would prevent the consummation of facts, condition, circumstance the Merger or occurrence thathave, individually or in the aggregate, has had a material adverse effect on Parent, Acquisition Sub and the Parent Subsidiaries, taken as a whole, shall have been obtained; (g) No suit, action or would proceeding before any court or any governmental or regulatory authority shall have been commenced and be pending by any person against the Company, Parent, Acquisition Sub or any of their affiliates, associates, officers or directors (i) challenging the Merger, seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or seeking to obtain any substantial damages relating to the consummation of the transactions contemplated by this Agreement, (ii) seeking to prohibit or impose any material limitation on the ownership or operation by Parent (or any of its affiliates or subsidiaries) of all or a material portion of the business or assets or properties of the Company or to compel Parent (or any of its affiliates or subsidiaries) to dispose of or hold separate all or any portion of the business or assets of the Company, (iii) seeking to impose any material limitation upon the ability of Parent (or any of its affiliates) effectively to acquire or hold or to exercise full rights of ownership of the Company, or (iv) which otherwise is reasonably be expected likely to have a Parent Material Adverse Effect material adverse effect on the Parent, Acquisition Sub and the Parent Subsidiaries, taken as a whole; (h) Parent shall have received resignations (effective as of the Effective Time) of those persons listed on Section 7.03(h)(i) of the Disclosure Schedule and those persons listed on Section 7.03(h)(ii) of the Disclosure Schedule shall be appointed to fill the vacancies in the Parent’s board of directors; (i) The Company shall have received an opinion, dated the Effective Time, of Xxxxxxxxx Xxxxxxx, P.A., counsel to Parent, in form reasonably satisfactory to the Company, with respect to the matters set forth in Sections 4.01, 4.02, 4.03, 4.04 and 4.05 hereof; (j) Parent shall have deposited with its transfer agent funds and shares of Parent Common Stock sufficient to pay the Cash Dividend and the Stock Dividend; (k) The Convertible Note shall have been converted into shares of Company Common Stock in accordance with Section 6.09; (l) The Lock-up Agreements required by Section 6.01(b) shall be in full force and effect; (m) Parent shall have terminated the each of the Parent Benefit Plans listed on Section 4.09 of the Disclosure Schedule other than items 3 and 4; (n) Parent shall have paid all outstanding Delaware franchise taxes, including any interest and penalties, and shall have delivered a certificate validly executed and signed on behalf of good standing from the state of Delaware to counsel for the Company; and (o) Parent shall have provided to the Company not less than 24 hours prior to the Effective Time a schedule of liabilities being paid prior to the Effective Time in order to satisfy the condition set forth in Section 5.05(a). In addition, prior to the Effective Time, Parent shall have provided counsel to the Company such documents evidencing satisfaction or release of such obligations as may be reasonably requested by its chief executive officer and chief financial officer certifying that this condition has been satisfiedcounsel for the Company.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations Each representation and warranties warranty of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (Agreement, without giving effect to any materiality qualifications or Parent Material Adverse Effect qualifier references to materiality therein), as of the date of this Agreement shall be true and correct at and as of the Closing Date as though if made on or at and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date)Closing Date, except (i) as contemplated or permitted by this Agreement, (ii) to the extent that breaches thereofany such representation or warranty shall have been expressly made as of an earlier date, individually in which case such representation and warranty, without giving effect to any materiality qualifications or references to materiality therein, shall have been true and correct as of such earlier date, and (iii) to the extent that any and all failures of such representations and warranties to be true and correct, shall not result in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.; (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) with all obligations required by this Agreement to be performed or complied with by each of them and it at or prior to the Closing Date; (c) The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and chief financial officer certifying that (b) of this condition has been satisfied.Section 7.2; (cd) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes the Merger will constitute a certificate validly executed “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and signed on behalf rely upon representations including those contained in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (e) The Company shall have received the opinion of Xxxxxx & Xxxxxxx in form and substance reasonably satisfactory to the Company (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, (i) commencing with its taxable year ended December 31, 1997, Parent was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and (ii) its method of operation has enabled it 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; and (f) the average closing price of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedCommon Stock on the NYSE for the period of ten trading days prior to the Closing Date shall not be less than $25.00 per share.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate effect the Merger is are further subject to the satisfaction on or waiver at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):conditions: (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (but without giving effect regard to any materiality qualifications or references to Parent Material Adverse Effect qualifier therein), contained in any specific representation or warranty) as of the date of this Agreement and as of the date of the Closing Date as though made on or and as of such date the Closing (or, in the case of except for representations and or warranties that address matters only expressly made as of a particular specific date, the accuracy of which will be determined as of such the specified date), except to the extent that breaches thereof, individually or where any failure of such representations and warranties in the aggregate, have not had aggregate to be true and correct in all respects would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.; (b) Parent and the Merger Subs Sub shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) all obligations required by this Agreement to be performed by them under this Agreement at or complied with by prior to the Effective Time; (c) Each of Parent and Merger Sub shall have delivered to the Company a certificate to the effect that each of them the conditions specified in Sections 6.3(a) and the (b) above has been satisfied in all respects; and (d) The Company shall have received a certificate validly executed the opinion of Xxxxxxx Xxxx, in form and signed substance reasonably satisfactory to the Company, dated the Closing Date, rendered on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state basis of facts, condition, circumstance or occurrence that, individually or representations and assumptions set forth in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect such opinion and the Company certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that the Merger will qualify as a "reorganization" within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 6.3(d), Xxxxxxx Xxxx shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer may rely upon the certificates and chief financial officer certifying that this condition has been satisfiedrepresentations referred to in Section 5.16(b) hereof.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate effect the Merger is shall be subject to the satisfaction on at or prior to the Closing Date Effective Time of the following conditions (which may be additional conditions, unless waived in whole or in part by the Company):: (a) The representations and warranties of Parent and each Merger Sub and the Parent set forth in Article 5 of this Agreement and in any certificate delivered by Merger Sub or the Parent pursuant to this Agreement (except those representations disregarding all qualifications and warranties set forth in the proviso below) exceptions contained therein regarding materiality or a Parent Material Adverse Effect or any similar standard or qualification), shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date Effective Time as though if made on or at and as of such date that time (or, in the case of except for representations and warranties that address matters made only as of a particular specified date, which shall be true and correct as of such the specified date), except to the extent that breaches thereofall failures of such representations and warranties to be so true and correct (disregarding all qualifications and exceptions contained therein regarding materiality or a Parent Material Adverse Effect or any similar standard or qualification), individually or in the aggregate, have not had had, and would not reasonably be expected to have have, a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed from each of Merger Sub and the Parent signed on behalf by its respective President, in its capacity as an officer of Parent by or Merger Sub, as applicable, and not in its chief executive officer and chief financial officer certifying individual capacity, to that this condition has been satisfied.effect; and (b) Parent Merger Sub and the Merger Subs Parent shall have performed or complied with, as applicable, in all material respects the obligations, agreements all obligations and complied in all material respects with all covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with hereunder by each of them it at or prior to the Effective Time and the Company Parent shall have received a certificate validly executed from each of Merger Sub and the Parent signed on behalf by its respective President, in its capacity as an officer of Parent by or Merger Sub, as applicable, and not in its chief executive officer and chief financial officer certifying individual capacity, to that this condition has been satisfiedeffect. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to consummate effect the Merger is shall also be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The AGE shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and each Merger Sub set forth AGE contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all material respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement on and as of (i) the date made and (ii) the Closing Date as though made on or as of such date (or, except in the case of representations and warranties that address matters only as of expressly made solely with reference to a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying the President of AGE to that this condition has been satisfied.effect; (b) The Company shall have received an opinion from Sonnenschein, dated the Closing Date, in a form to be mutually agreed upon prior to the Closing; (c) Since the date hereof, of this Agreement there shall not have occurred been any eventMaterial Adverse Effect with respect to AGE, changethe likelihood of which was not previously disclosed to the Company by AGE; (d) AGE shall have furnished to the Company such additional certificates, effectopinions and other documents as the Company may have reasonably requested as to any of the conditions set forth in this Section 8.2; (e) At the Effective Time, developmentAGE, state after giving effect to its receipt of factsthe proceeds of the sale of its Common Stock contemplated by Section 8.1(c), conditionwill have at least $1,675,000 in cash or cash equivalents before giving effect to the payment or accrual on or prior to the Effective Time of up to $70,000 of expenses incurred by AGE, circumstance or occurrence thatwhich may include, individually or but not be limited to, the fees and expenses of AGE's attorneys and accountants, in connection with the transactions contemplated by this Agreement). (f) Each of the Affiliated Stockholders shall have delivered to AGE option agreements, substantially in the form set forth in Exhibit III hereto, granting the designees of Colebrooke Capital, Inc. the option for a period of 150 days from the Closing to purchase 50% of his beneficially owned shares of AGE-Del Common Stock at a price of $2.75 per share, representing in the aggregate, has had or would reasonably 209,541 shares, and AGE's counsel shall have turned over to the Surviving Corporation's counsel the certificates representing such shares to be expected to have a Parent Material Adverse Effect held in escrow by the Company's counsel pending exercise of said options. (g) Each current director of AGE-Del and the Company AGE Acquisition Sub, other than Xxxxxx Xxxxxx, shall have received a certificate validly executed resigned and signed each current officer of AGE-Del and AGE Acquisition Sub shall have resigned. The vacancies on AGE-Del's and AGE Acquisition Sub's Boards of Directors shall have been filled with the individuals listed in Section 1.5(b) hereof. (h) All proceedings in connection with the Merger and the other transactions contemplated by this Agreement and all agreements, instruments, certificates, and other documents delivered to the Company by or on behalf of Parent by AGE pursuant to this Agreement shall be reasonably satisfactory to the Company and its chief executive officer and chief financial officer certifying that this condition has counsel. (i) The Reincorporation shall have been satisfiedconsummated.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The Parent and Sub shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date and the representations and warranties of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement on and as of the Closing Date with the same force and effect as though if made on or and as of such date (or, in except to the case of extent such representations and warranties that address matters only speak as of a particular date, as of such an earlier date), except where the failure to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (exceptshall not constitute a Material Adverse Effect on Parent and its subsidiaries, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) taken as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date)whole. The Company shall have received a certificate validly executed and signed on behalf of Parent by its the chief executive officer and chief financial officer certifying that this condition has been satisfiedof Parent and Sub to such effect. (b) Parent and On the Merger Subs shall have performed or complied withdate of the Proxy Statement, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received from Salomon Brothers Inc a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedletter, dated such date, confirming the opinion referred to in Section 2.16. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Company, dated as of the Effective Time, to the effect that the Merger will constitute a certificate validly executed reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may require and signed on behalf rely upon representations contained in the certificates of Parent by its chief executive officer officers of Parent, Sub, the Company and chief financial officer certifying others, as well as certificates of shareholders who beneficially own five percent or more of the outstanding shares of the Company Common Stock if Xxxxxxx Xxxxxxx & Xxxxxxxx determines that this condition has been satisfiedsuch certificates are necessary for purposes of rendering such opinion.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations Each representation and warranties warranty of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (Agreement, without giving effect to any materiality qualifications or Parent Material Adverse Effect qualifier references to materiality therein), as of the date of this Agreement shall be true and correct at and as of the Closing Date as though if made on or at and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date)Closing Date, except (i) as contemplated or permitted by this Agreement, (ii) to the extent that breaches thereofany such representation or warranty shall have been expressly made as of an earlier date, individually in which case such representation and warranty, without giving effect to any materiality qualifications or references to materiality therein, shall have been true and correct as of such earlier date, and (iii) to the extent that any and all failures of such representations and warranties to be true and correct, shall not result in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.; (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) with all obligations required by this Agreement to be performed or complied with by each of them and it at or prior to the Closing Date; (c) The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and chief financial officer certifying that (b) of this condition has been satisfied.Section 7.2; (cd) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the Closing Date, in form and substance xxxxxxxbly xxxisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes the Merger will constitute a certificate validly executed "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP may receive and signed on behalf rely upon representations including txxxx xxntaxxxx in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (e) The Company shall have received the opinion of Latham & Watkins in form and substance reasonably satisfactory to the Coxxxxx (baxxx xxxn customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, (i) commencing with its taxable year ended December 31, 1997, Parent was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and (ii) its method of operation has enabled it 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; and (f) the average closing price of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedCommon Stock on the NYSE for the period of ten trading days prior to the Closing Date shall not be less than $25.00 per share.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company): (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) that are qualified by materiality shall be true and correct in all respects (without giving effect to any materiality or respects, and the representations and warranties of Parent Material Adverse Effect qualifier therein)and Merger Sub set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and to such effect signed on behalf of Parent by its chief executive an officer and chief financial officer certifying that this condition has been satisfiedof Parent. (b) Parent and the Merger Subs Sub shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them them, and the Company shall have received a certificate validly executed and to such effect signed on behalf of Parent by its chief executive an officer and chief financial officer certifying that this condition has been satisfiedof Parent. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received the opinion of Cravath, Swaine and Xxxxx LLP, counsel to the Company, or the opinion of other tax counsel of a certificate validly executed prominent law firm designated by Parent and signed reasonably acceptable to the Company, dated the Closing Date, based on behalf appropriate representations of the Company, its affiliates, and Parent by its chief executive officer and chief financial officer certifying such other facts, representations, assumptions, and agreements as counsel may reasonably deem relevant, to the effect that this condition has been satisfiedfor United States Federal income tax purposes the Merger will qualify as a reorganization within the meaning of Section 368 of the Code and that each of Parent, the direct owner of Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction on fulfillment at or prior to the Closing Date Effective Time of each of the following conditions (further conditions, any or all of which may be waived in whole or in part by the Company):, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true correct and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and accurate as of the Closing Date as though made on or as of such date (or, in the case of except for those representations and warranties that address matters only as of a particular date, date or only with respect to a specific period of time which need only be correct and accurate as of such datedate or with respect to such period), except where the failure of such representations and warranties to be correct and accurate (without giving effect to any limitation as to "materiality" or "Parent Material Adverse Effect" set forth therein) would not have a Parent Material Adverse Effect; PROVIDED, HOWEVER, that the representations and warranties in Section 4.2 (Capitalization), Section 4.5 (Reports; Financial Statements), 4.6 (Undisclosed Liabilities), Section 4.7 (Absence of Changes), Section 4.9 (Compliance with Applicable Law), Section 4.10 (Taxes), 4.11 (Brokers) and 4.13 (Authorization for Parent Common Shares), 4.18 (Properties) need only be true and correct for purposes of satisfying the condition set forth in this Section 7.3(a) if Parent has made and not revoked a Stock Election; and the Company shall have received a certificate, dated the Closing Date, signed on behalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and Merger Sub shall each have performed or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with on or prior to the extent Effective Time; and the Company shall have received a certificate, dated the Closing Date, signed on behalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; and (c) from the date of this Agreement through the Effective Time, there shall not have occurred an event that breaches thereof, individually or in the aggregate, have not had and would not be reasonably be expected likely to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) Parent and Sub shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date; (b) The representations and warranties of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) qualified as to materiality shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1respects, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 those not so qualified shall be true and correct in all respects (exceptmaterial respects, with respect to Sections 4.3(a) in each case when made and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement on and as of the Closing Date with the same force and effect as though if made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). , except as expressly contemplated or otherwise expressly permitted by this Agreement; (c) The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief two executive officer officers of Parent to the effect that the conditions set forth in clauses (a) and chief financial officer certifying that this condition has been satisfied. (b) Parent above have been satisfied; (d) The Company and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company Sellers shall have received an opinion of Conner & Winters, A Professional Corporation, datxx xxx Efxxxxxxx Time, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, the Merger will constitute a certificate validly "reorganization" within the meaning of Section 368(a) of the Code, and the Company, Sub and Parent will each be a party to such reorganization within the meaning of Section 368(b) of the Code; and in rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of the Company, Parent and others; (e) All amounts outstanding under the Notes and the Collins Debenture shall have been paid in full by Parenx xx accordance with the terms hereof; and (f) The Registration Rights Agreement shall have been duly executed and signed on behalf delivered by Parent and shall be in full force and effect as of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedthe Effective Time. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment or waiver at or prior to the Closing Date Effective Time of the additional following conditions (which may conditions: 6.2.1. The Acquiror shall have performed in all material respects its covenants contained in this Agreement required to be waived in whole performed at or in part by prior to the Company):Effective Time. (a) 6.2.2. The representations and warranties of Parent the Acquiror contained in this Agreement shall be true in all material respects (other than representations and each Merger Sub warranties of the Acquiror contained in this Agreement which are qualified as to materiality, which shall be true in all respects) when made and as of the Effective Time as if made at and as of such time, except as expressly contemplated or permitted by this Agreement and except for representations and warranties relating to a time or times other than the Effective Time which were or shall be true in all material respects (other than representations and warranties which are qualified as to materiality, which shall be true in all respects) at such time or times. 6.2.3. During the period from October 1, 1998 through the Closing Date, there shall not have been any event, act or omission (individually or in the aggregate) which shall have had a Material Adverse Effect upon the Acquiror and the Acquiror Subsidiaries, taken as a whole, nor any loss or damage to the assets of the Acquiror and the Acquiror Subsidiaries, whether or not insured, which materially affects the ability of the Acquiror and the Acquiror Subsidiaries to conduct their business. 6.2.4. The Acquiror shall have delivered to the Company a certificate, dated the date of the Closing, signed by the President or Vice President and by the Chief Financial Officer of the Acquiror that, to the best of their knowledge and belief after due inquiry, the conditions set forth in Sections 6.2.1, 6.2.2 and 6.2.3 have been satisfied. 6.2.5. Prior to or at the Closing, the Acquiror shall have delivered such other closing documents as shall be reasonably requested by the Company in form and substance acceptable to the Company's counsel (which acceptance shall not be unreasonably withheld), including a certificate of the Secretary or Assistant Secretary of the Acquiror, dated the Closing Date, as to the incumbency of any officer of the Acquiror executing this Agreement (except those representations or any document related hereto and warranties set forth covering such other matters as the Company may reasonably request. 6.2.6. The Board of Directors of the Company shall have received an opinion of Capital Consultants of Princeton, Inc., in the proviso below) shall be true form and correct in all respects (without giving effect substance reasonably satisfactory to any materiality or Parent Material Adverse Effect qualifier therein)such Board, dated as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; providedJoint Proxy Statement/Prospectus, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), is fair to the extent that such inaccuracies would be de minimis in the aggregate) as stockholders of the date Company from a financial point of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedview. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations and warranties of Parent and each Merger Sub set forth shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement (except those representations and warranties set forth in the proviso below) shall required to be true and correct in all respects (without giving effect performed or complied with at or prior to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth Sub contained in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 this Agreement qualified as to materiality shall be true and correct in all respects (exceptrespects, with respect to Sections 4.3(a) and 4.3(b)those not so qualified shall be true in all material respects, to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement each case when made and on and as of the Closing Date with the same force and effect as though if made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except as expressly contemplated or otherwise expressly permitted by this Agreement. The Company shall have received a certificate validly executed and signed on behalf of Parent by its the chief executive officer and chief financial officer certifying that this condition has been satisfiedof Parent to such effect. (b) Parent The opinion, based on appropriate representations of Parent, the Company, and certain stockholders of the Merger Subs Company, of Latham & Watkins, counsel to the Company, to the effect that xxx Xergxx xxxx be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, dated on or about the date of and referred to in the Proxy Statement as first mailed to stockholders of the Company, shall not have performed been withdrawn or complied with, as applicable, modified in all any material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedrespect. (c) Since the date hereof, there There shall not be pending or threatened by any governmental entity any suit, action or proceeding, which could reasonably be expected, if adversely determined, to result in criminal or material uninsured and unindemnified or unindemnifiable personal liability on the part of one or more directors of the Company, (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, or to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement. (d) To the extent required hereunder, each of Parent and the Escrow Agent shall have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or executed and delivered the Escrow Agreement in the aggregate, has had or would reasonably be expected to have a form of Exhibit B hereto and Parent Material Adverse Effect and the Company shall have received a certificate validly deposited the Escrowed Shares with the Escrow Agent. (e) Parent shall have executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfieddelivered the Registration Rights Agreement.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company): (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects at and as of the Closing (without giving effect regard to any qualification as to materiality or Parent Material Adverse Effect qualifier therein), Effect) as of the date of this Agreement though made at and as of the Closing Date as though made on or as of such date time (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except for such failures to the extent that breaches thereofbe true and correct as 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, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and to such effect signed on behalf of Parent by its chief executive an officer and chief financial officer certifying that this condition has been satisfiedof Parent. (b) Parent and the Merger Subs Sub shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them them, and the Company shall have received a certificate validly executed and to such effect signed on behalf of Parent by its chief executive an officer and chief financial officer certifying that this condition has been satisfiedof Parent. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received the opinion of Xxxxxx, Xxxxxx & Xxxxx LLP or, if such firm is unable to render such opinion, the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the Closing Date, based on appropriate representations of the Company, its affiliates, and Parent and such other facts, representations, assumptions, and agreements as counsel may reasonably deem relevant, to the effect that for United States Federal income tax purposes (1) the Merger will qualify as a certificate validly executed and signed on behalf reorganization within the meaning of Section 368 of the Code; (2) each of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedthe Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and (3) the Merger will qualify as a complete liquidation of the Company within the meaning of Section 332 of the Code.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to consummate effect the Merger is shall also be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The Each of HDG and HDG Sub shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent HDG and each Merger HDG Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all material respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement on and as of (i) the date made and (ii) the Closing Date as though made on or as of such date (or, except in the case of representations and warranties that address matters only as of expressly made solely with reference to a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed of the President of HDG and signed on behalf HDG Sub to that effect in substantially the form of Parent by its chief executive officer EXHIBIT XV hereto; (b) The Company shall have received an opinion from Christensen, Miller, Fink, Jacobs, Xxxxxx, Xxxx and chief financial officer certifying that this condition has been satisfied.Xxxxxxx, LLP ("Xxxxxxxxxxx, Xxxxxx"), counsel to HDG and HDG Sub, dated the Closing Date, substantially in the form set forth in EXHIBIT III hereto and subject to customary exceptions and qualifications; (c) The Company shall have received "comfort" letters from Xxxxxxx X. Xxxxxx & Company, LLP, independent public accountants for HDG, dated the date of the Proxy Statement/Prospectus, the effective dates of the Registration Statement and the J&L Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and the J&L Registration Statement in customary form; (d) The Company shall have received tax opinions, based on representations of the Company and HDG and their affiliates (substantially in the forms set forth in EXHIBIT IX hereto, or in such other form or as to such other matters as shall be required by opining counsel in such counsel's sole discretion), of Xxxxxxxx & Xxxxxxxx LLP, United States counsel to the Company, and Xxxxxx, Fox & Xxxxxx, as Israeli tax advisor to the Company, respectively, substantially in the forms set forth in EXHIBIT IV.A. and EXHIBIT IV.C. hereto and subject to customary exceptions and qualifications; (e) Since the date hereof, of this Agreement there shall not have occurred been any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect with respect to HDG or HDG Sub; (f) The Company shall have received from HDG and HDG Sub an executed original of an officer's certificate substantially in the form of the attached EXHIBIT V.A.; (g) The Company shall have received from HDG and HDG Sub such additional certificates, opinions and other documents as the Company may have reasonably requested as to the satisfaction of any of the conditions set forth in this Section 8.2; (h) At the Effective Time, HDG shall have a Cash Value of at least $2,500,000; (i) Immediately prior to the Effective Time, the HDG Common Stock shall be publicly traded on the NASDAQ under the trading symbol "IFIT," and HDG (pre-Effective Time) shall be in full compliance with all NASDAQ continued listing requirements then in effect; (j) [Intentionally omitted]; (k) The average share price of the HDG Common Stock, as calculated by the closing bid prices of the HDG Common Stock trading on NASDAQ under the trading symbol "IFIT" for the 20 consecutive trading days ending 2 trading days prior to the Effective Time shall be at, or above, the Transaction Price per HDG Common Stock share; (l) Each and every HDG and HDG Sub director, officer and employee shall tender their resignation to HDG and HDG Sub, respectively, effective at the Effective Time; (m) The holders of a minimum of 75% of the aggregate of all Escrow Shares and all Escrow Options shall sign letter agreements, in substantially the form set forth in EXHIBIT VI hereto, to convert such number of Escrow Shares and Escrow Options into 3 year warrants which may be exercised 6 months after issuance, with each Warrant having the right to purchase 1 share of HDG Common Stock (i) at the Transaction Price in the case of each Escrow Share, and (ii) at 125% of the Transaction Price in the case of each Escrow Option; (n) HDG shall have collected all of the certificates evidencing HDG securities from all such persons entering into letter agreements with the Company and HDG to lock-up their HDG securities, which person shall include, Nautilus Group Japan, Ltd., the Xxxxxxx Family Trust and Xxxxxxx X. Xxxx, and replaced same with identical securities bearing a legend substantially as follows: "The securities represented by this certificate may not be offered, sold, made subject to a contract to sell or an option to purchase, pledged, transferred, made subject to an open "put equivalent position" within the meaning of Rule 16a-1(a) under the Securities Exchange Act of 1934 or otherwise disposed of except in accordance with the conditions specified in that certain letter agreement executed by the holder of this certificate, a copy of which may be inspected by the holder of this certificate at the offices of HDG, or furnished by HDG to the holder of this certificate upon written request and without charge." and shall have delivered copies of all such legended securities to the Company; (o) The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer letter from AST certifying that this condition has been satisfied.it holds the Escrow Shares and Escrow Options pursuant to the terms and conditions of the Escrow Agreement; (p) HDG's stockholders (pre-Effective Time) shall have approved the appointment of the following persons (or other persons as may be substituted by the Company prior to the filing of the Proxy Statement/Prospectus) to the Board of Directors of HDG effective as of the Effective Time: Avi Xxxxxxxxx Xxxxx Simon Xxxxx Xxx

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate effect the Merger is are further subject to the satisfaction on or waiver at or prior to the Closing Date Effective Time of the following conditions (which may be waived in whole or in part by the Company):conditions: (a) The representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) that are qualified by materiality shall be true and correct in all respects (without giving effect to any materiality when made or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement at and as of the Closing Date as though made on or as of such date Effective Time (or, in the case of other than representations and warranties that address matters only speak as of a particular date, specific time or date which shall have been true as of such the specified date), except in any case where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Parent; (b) The representations and warranties of the Parent and Sub in this Agreement that are not qualified by materiality shall be true and correct in all material respects when made or at and as of the Effective Time (other than representations and warranties that speak as of a specific time or date which shall have been true as of the specified date), except in any case where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Parent; (c) Parent and Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement; (d) Parent and Sub shall have delivered to the extent Company a certificate of an officer of each of Parent and Sub, respectively, to the effect that breaches thereofeach of the conditions specified in Sections 8.03(a), (b) and (c) is satisfied in all respects; (e) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which any of Parent or its subsidiaries is a party, or by which any of them is bound, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse EffectEffect on the Parent, shall have been obtained; (f) Parent shall have executed and delivered to Company the Escrow Agreement; (g) Parent shall have executed and delivered to the Company the Registration Rights Agreement; provided, that and (h) Parent shall have delivered the representations and warranties of Parent Cash Consideration and the Merger Subs Stock Consideration as set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedArticle II. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction on fulfillment at or prior to the Closing Date Effective Time of each of the following conditions (further conditions, any or all of which may be waived in whole or in part by the Company):, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true correct and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and accurate as of the Closing Date as though made on or as of such date (or, in the case of except for those representations and warranties that address matters only as of a particular date, date or only with respect to a specific period of time which need only be correct and accurate as of such datedate or with respect to such period), except where the failure of such representations and warranties to be correct and accurate (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) would not have a Parent Material Adverse Effect; PROVIDED, HOWEVER, that the representations and warranties in Section 4.2 (Capitalization), Section 4.5 (Reports; Financial Statements), 4.6 (Undisclosed Liabilities), Section 4.7 (Absence of Changes), Section 4.9 (Compliance with Applicable Law), Section 4.10 (Taxes), 4.11 (Brokers) and 4.13 (Authorization for Parent Common Shares), 4.18 (Properties) need only be true and correct for purposes of satisfying the condition set forth in this Section 7.3(a) if Parent has made and not revoked a Stock Election; and the Company shall have received a certificate, dated the Closing Date, signed on behalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and Merger Sub shall each have performed or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with on or prior to the extent Effective Time; and the Company shall have received a certificate, dated the Closing Date, signed on behalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; and (c) from the date of this Agreement through the Effective Time, there shall not have occurred an event that breaches thereof, individually or in the aggregate, have not had and would not be reasonably be expected likely to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction on fulfillment at or prior to the Closing Date Effective Time of each of the following conditions (further conditions, any or all of which may be waived in whole or in part by the Company):, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true correct and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and accurate as of the Closing Date as though made on or as of such date (or, in the case of except for those representations and warranties that address matters only as of a particular date, date or only with respect to a specific period of time which need only be correct and accurate as of such datedate or with respect to such period), except where the failure of such representations and warranties to the extent that breaches thereofbe correct and accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein) would not have or would not reasonably be likely to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; providedEffect on the Parent, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and certificate, dated the Closing Date, signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and the Merger Subs Sub shall each have performed or complied with, as applicable, in all material respects the with all obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed by it or complied with by each of them on or prior to the Effective Time, and the Company shall have received a certificate validly executed and certificate, dated the Closing Date, signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Chief Executive Officer or Chief Financial Officer to such effect; (c) Since the Company shall have received an opinion of Baker & Hostetler LLP, counsel for Parent, dated as of the Closing Date, xxxxtanxxxxxx xx the form of EXHIBIT 7.3(C) attached hereto, that, commencing with Parent's taxable year ended December 31, 1993, Parent have been organized and have operated in conformity with the requirements for qualification as a REIT within the meaning of the Code (such opinion shall be subject to customary assumptions, qualifications and representations); (d) the Company shall have received an opinion of King & Spalding, counsel for the Company, dated the Closing Date and in customary form (subject to customary assumptions, qualifications and representations), to the effect that the Merger is a "reorganization" within the meaning of Section 368(a)(1)(A) and (a)(2)(E) of the Code; and (e) from the date hereofof this Agreement through the Effective Time, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or an event that would be reasonably be expected likely to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedParent.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction (or waiver by the Company) on or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations and warranties of each of Parent and each Merger Sub Subsidiary (i) set forth in this Agreement (except those representations and warranties set forth in the proviso below) Section 5.07 shall be true and correct in all material respects as of the date hereof and as of the Effective Time as if made at and as of the Effective Time (except to the extent any such representations and warranties speak as of another time, in which case such representations and warranties will be true and correct as of such other time) and (ii) set forth in this Agreement, other than those described in clause (i) above (made without giving effect to any materiality limitation as to “materiality” or Parent “Material Adverse Effect qualifier thereinEffect” contained herein), will be true and correct as of the date hereof and as of the Effective Time as if made at and as of the Effective Time (except to the extent any such representations and warranties speak as of another time, in which case such representations and warranties will be true and correct as of such other time), except in the case of this clause (ii) where the failure of such representations and warranties to be so true and correct does not materially and adversely affect the ability of Parent or Merger Subsidiary to consummate the Merger and the other transactions contemplated by this Agreement. (b) Parent and Merger Subsidiary will have performed in all material respects all of the obligations, and complied in all material respects with the agreements and covenants, required to be performed by them under this Agreement and at or prior to the Closing Date. (c) Parent shall have delivered to the Company a certificate, dated as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive a duly authorized officer of Parent, certifying to the effect that the conditions set forth in Sections 8.03(a) and chief financial officer certifying that this condition has 8.03(b) have been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (c) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations Each representation and warranties warranty of Parent and each Merger Sub set forth contained in this Agreement (except those representations and warranties set forth in the proviso below) shall be true and correct in all respects (Agreement, without giving effect to any materiality qualifications or Parent Material Adverse Effect qualifier references to materiality therein), as of the date of this Agreement shall be true and correct at and as of the Closing Date as though if made on or at and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date)Closing Date, except (i) as contemplated or permitted by this Agreement, (ii) to the extent that breaches thereofany such representation or warranty shall have been expressly made as of an earlier date, individually in which case such representation and warranty, without giving effect to any materiality qualifications or references to materiality therein, shall have been true and correct as of such earlier date, and (iii) to the extent that any and all failures of such representations and warranties to be true and correct, shall not result in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.62 (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) with all obligations required by this Agreement to be performed or complied with by each of them and it at or prior to the Closing Date; (c) The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and chief financial officer certifying that (b) of this condition has been satisfied.Section 7.2; (cd) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes the Merger will constitute a certificate validly executed "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and signed on behalf rely upon representations including those contained in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (e) The Company shall have received the opinion of Xxxxxx & Xxxxxxx in form and substance reasonably satisfactory to the Company (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, (i) commencing with its taxable year ended December 31, 1997, Parent was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and (ii) its method of operation has enabled it 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; and (f) the average closing price of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedCommon Stock on the NYSE for the period of ten trading days prior to the Closing Date shall not be less than $25.00 per share.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations and warranties of Parent and each Merger Sub set forth shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement (except those representations and warranties set forth in the proviso below) shall required to be true and correct in all respects (without giving effect performed or complied with at or prior to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth Sub contained in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 this Agreement qualified as to materiality shall be true and correct in all respects (exceptrespects, with respect to Sections 4.3(a) and 4.3(b)those not so qualified shall be true in all material respects, to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement each case when made and on and as of the Closing Date with the same force and effect as though if made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except as expressly contemplated or otherwise expressly permitted by this Agreement. The Company shall have received a certificate validly executed and signed on behalf of Parent by its the chief executive officer and chief financial officer certifying that this condition has been satisfiedof Parent to such effect. (b) Parent The opinion, based on appropriate representations of Parent, the Company, and certain stockholders of the Company, of Lathxx & Watkxxx, xxunsel to the Company, to the effect that the Merger Subs will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, dated on or about the date of and referred to in the Proxy Statement as first mailed to stockholders of the Company, shall not have performed been withdrawn or complied with, as applicable, modified in all any material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedrespect. (c) Since the date hereof, there There shall not be pending or threatened by any governmental entity any suit, action or proceeding, which could reasonably be expected, if adversely determined, to result in criminal or material uninsured and unindemnified or unindemnifiable personal liability on the part of one or more directors of the Company, (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, or to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement. (d) To the extent required hereunder, each of Parent and the Escrow Agent shall have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or executed and delivered the Escrow Agreement in the aggregate, has had or would reasonably be expected to have a form of Exhibit B hereto and Parent Material Adverse Effect and the Company shall have received a certificate validly deposited the Escrowed Shares with the Escrow Agent. (e) Parent shall have executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfieddelivered the Registration Rights Agreement.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction on fulfillment at or prior to the Closing Date Effective Time of each of the following conditions (further conditions, any or all of which may be waived in whole or in part by the Company):, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and each Merger Sub set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be true correct and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement and accurate as of the Closing Date as though made on or as of such date (or, in the case of except for those representations and warranties that address matters only as of a particular date, date or only with respect to a specific period of time which need only be correct and accurate as of such datedate or with respect to such period), except where the failure of such representations and warranties to the extent that breaches thereofbe correct and accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein) would not have or would not reasonably be likely to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; providedEffect on the Parent, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (except, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and certificate, dated the Closing Date, signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and the Merger Subs Sub shall each have performed or complied with, as applicable, in all material respects the with all obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed by it or complied with by each of them on or prior to the Effective Time, and the Company shall have received a certificate validly executed and certificate, dated the Closing Date, signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.Chief Executive Officer or Chief Financial Officer to such effect; (c) Since the Company shall have received an opinion of Baker & Hostetler LLP, counsel for Parent, dated as of the Closing Datx, xxbstxxxxxxxx in the form of EXHIBIT 7.3(C) attached hereto, that, commencing with Parent's taxable year ended December 31, 1993, Parent have been organized and have operated in conformity with the requirements for qualification as a REIT within the meaning of the Code (such opinion shall be subject to customary assumptions, qualifications and representations); (d) the Company shall have received an opinion of King & Spalding, counsel for the Company, dated the Closing Date and in customary form (subject to customary assumptions, qualifications and representations), to the effect that the Merger is a "reorganization" within the meaning of Section 368(a)(1)(A) and (a)(2)(E) of the Code; and (e) from the date hereofof this Agreement through the Effective Time, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or an event that would be reasonably be expected likely to have a Parent Material Adverse Effect and the Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfiedParent.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived in writing by the Company, the obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The Parent and the 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 each Merger Sub set forth the Subsidiary contained in this Agreement (except those representations and warranties set forth in the proviso belowwithout regard to any materiality exceptions or provisions therein) shall be true and correct in all respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement on and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, date made and (ii) Sections 4.3(a)the Closing Date (except for those variations, 4.3(b)changes and inaccuracies which, 4.3(d)taken as a whole, 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct do not result in all respects (except, a Material Adverse Effect with respect to Sections 4.3(a) and 4.3(bParent), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and the Merger Subs shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them ; and the Company shall have received a certificate validly executed of the Chairman of the Board and signed on behalf the President or a Vice President of Parent by its chief executive officer to that effect; (b) The Company shall have received an opinion from Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel to Parent and chief financial officer certifying that this condition has been satisfied.Subsidiary, dated the Closing Date, substantially in the form set forth in Exhibit V hereto; (c) Since All of the date hereofshares of Parent Common Stock to be issued to the Company's stockholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NASDAQ National Market upon official notice of issuance; and (d) The Company shall have received an opinion of Xxxxx & Xxxxxx, there dated the Effective Time, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) each of Parent, Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, (iii) no gain or loss will be recognized by the Company as a result of the Merger, and (iv) no gain or loss will be recognized by a stockholder of the Company as a result of the Merger with respect to Company Common Stock converted solely into Parent Common Stock. In rendering such opinion, Xxxxx & Xxxxxx may receive and rely upon representations contained in certificates of Parent, Subsidiary and the Company, including the Company Tax Matters Certificate and the Parent Tax Matters Certificate. (e) The Company shall not have occurred any eventreceived from Parent an executed original of the Parent Tax Matters Certificate; (f) If required by the Company, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the Company shall have received an opinion of Xxxxx Xxxxxx, or another nationally recognized investment banking firm, that the Exchange Ratio is fair, from a certificate validly executed financial point of view, to the Company's stockholders; and (g) The Company shall have received an opinion from Deloitte & Touche LLP, independent public accountants for Parent, dated the Closing Date, addressed to the Company, and signed supported by a customary letter by Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, each in form and substance reasonably satisfactory to the Company, stating that the Merger will qualify as a "pooling of interests" transaction under GAAP; (h) All proceedings in connection with the Merger and the other transactions contemplated by this Agreement and all agreements, instruments, certificates and other documents delivered to the Company by or on behalf of the Parent by pursuant to this Agreement shall be reasonably satisfactory to the Company and its chief executive officer and chief financial officer certifying that this condition has been satisfiedcounsel.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate effect the Merger is shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the following conditions (which may be waived in whole or in part by the Company):additional conditions: (a) The representations Each representation and warranties warranty of Parent and each Merger Sub set forth HCPI contained in this Agreement (except those representations that is qualified by materiality shall be true and warranties set forth in correct at and as of the proviso below) Effective Time as if made at and as of the Effective Time and each representation and warranty of HCPI that is not so qualified shall be true and correct in all material respects (without giving effect to any materiality or Parent Material Adverse Effect qualifier therein), as of the date of this Agreement at and as of the Closing Date Effective Time as though if made on or as of such date (orthe Effective Time, in the case of representations and warranties that address matters only as of a particular date, as of such date)each case, except (i) as contemplated or permitted by this Agreement and (ii) to the extent that breaches thereofany such representation or warranty shall have been expressly made as of an earlier date, individually in which case such representation and warranty shall have been true and correct, or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and the Merger Subs set forth in (i) the first two sentences of Section 4.1, and (ii) Sections 4.3(a), 4.3(b), 4.3(d), 4.3(e), 4.4, 4.5(b)(i), 4.7(b) and 4.23 shall be true and correct in all respects (exceptmaterial respects, with respect to Sections 4.3(a) and 4.3(b), to the extent that such inaccuracies would be de minimis in the aggregate) as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular datemay be, as of such earlier date). The Company shall have received a certificate validly executed and signed on behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied.; (b) Parent and the Merger Subs HCPI shall have performed or complied with, as applicable, in all material respects the obligations, agreements and covenants (in each case, other than Section 5.6) with all obligations required by this Agreement to be performed or complied with by each of them and it at or prior to the Closing Date; (c) The Company shall have received a certificate validly executed and signed on behalf of Parent HCPI by its chief executive officer the Chief Executive Officer or Chief Financial Officer of HCPI to the effect set forth in clauses (a) and chief financial officer certifying that (b) of this condition has been satisfied.Section 7.2; (cd) Since the date hereof, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect and the The Company shall have received an opinion of Xxxxxxxx & Xxxxxxxx, dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes, (i) the Merger will constitute a certificate validly executed "reorganization" within the meaning of Section 368(a) of the Code, and signed on behalf (ii) Company and HCPI will each be a party to that reorganization within the meaning of Parent by Section 368(b) of the Code. In rendering such opinion, Xxxxxxxx & Xxxxxxxx may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Parties and others; (e) The Company shall have received the opinion of Xxxxxx & Xxxxxxx in the form attached as Exhibit C hereto (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated the Closing Date, to the effect that, (i) commencing with its chief executive officer taxable year ended December 31, 1985, HCPI was organized in conformity with the requirements for qualification and chief financial officer certifying that this condition taxation as a REIT under the Code, and (ii) its method of operation has been satisfiedenabled it 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; and (f) Xxxxxx Xxxxxxxx, LLP shall have delivered to the Company the letter described in clause (a) of Section 6.14 at the time provided in clause (a) of Section 6.14.