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 effect the Merger is subject to the fulfillment at or prior to the Closing of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of Parent and 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect 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 a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that 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 effect consummate the Merger is subject to the fulfillment at satisfaction on or prior to the Closing Date of the following additional conditions, any of conditions (which may be waived if waived in writing whole or in part by the Company:): (a) The representations and warranties of Parent and Sub contained herein the Merger Subs set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be accurate true and correct in all respects (but without regard giving effect to any materiality qualifications or references to Parent 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 Agreementqualifier therein), (ii) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date as though made on or some other date will be determined as of such date (subject or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the qualification set forth extent that breaches thereof, individually or in clause (iii) below) the aggregate, have not had and (iii) where any such failure of would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties to of Parent and the Merger Subs set forth in Sections 4.3(a), 4.3(b) and 4.7(b) 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 not constitute 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 Material Adverse Effect particular date, as of such date). The Company shall have received a certificate validly executed and signed on Parent;behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and Sub the Merger Subs shall have performed or complied with, as applicable, in all material respects all obligations the obligations, agreements and complied covenants (in all material respects with all covenants each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them prior to and the Closing Date;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) During the period from Since the date hereof to the Closing Datehereof, there shall not have been 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 Parent; (d) The shares behalf 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 a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer chief executive officer and President or a Senior Vice President, chief financial officer certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect consummate the Merger is subject to the fulfillment at satisfaction on or prior to the Closing Date of the following additional conditions, any of conditions (which may be waived if waived in writing whole or in part by the Company:): (a) The representations and warranties of Parent and each Merger Sub contained herein set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be accurate true and correct in all respects (but without regard giving effect to any materiality qualifications or references to Parent 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 Agreementqualifier therein), (ii) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date as though made on or some other date will be determined as of such date (subject or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the qualification set forth extent that breaches thereof, individually or in clause (iii) below) the aggregate, have not had and (iii) where any such failure of would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties to 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 not constitute 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 Material Adverse Effect particular date, as of such date). The Company shall have received a certificate validly executed and signed on Parent;behalf of Parent by its chief executive officer and chief financial officer certifying that this condition has been satisfied. (b) Parent and Sub the Merger Subs shall have performed or complied with, as applicable, in all material respects all obligations the obligations, agreements and complied covenants (in all material respects with all covenants each case, other than Section 5.6) required by this Agreement to be performed or complied with by each of them prior to and the Closing Date;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) During the period from Since the date hereof to the Closing Datehereof, there shall not have been 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 Parent; (d) The shares behalf 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 a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer chief executive officer and President or a Senior Vice President, chief financial officer certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement qualified as to materiality shall be accurate true in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained respects, and those not so qualified shall be true in any specific representation or warranty) all material respects, in each case when made and on and as of the Closing Date with the same force and effect as though if made on and as of the Closing Date such date, except (i) for inaccuracies arising from changes as expressly contemplated or actions contemplated otherwise expressly permitted by this Agreement, (ii) that . The Company shall have received a certificate signed on behalf of Parent by the accuracy chief executive officer and chief financial officer 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 Parent to such date (subject to the qualification set forth in clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent;effect. (b) Parent and Sub The Company shall have performed received an opinion of Sidley & Austin, in all material respects all obligations form and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior substance reasonably satisfactory to the Closing DateCompany, 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; (cii) During no gain or loss will be recognized by Parent, Sub or the period from Company as a result of the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on ParentMerger; (diii) The 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 issuable 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 shall have been approved (including fractional shares of Parent Common Stock for listing on which cash is received) will be the Nasdaqsame 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, subject only to official notice of issuanceprovided such Company Common Stock was held as capital assets by the shareholder at the Effective Time; and (evi) a shareholder of the Company who receives cash in lieu of a fractional share of Parent shall have delivered Common Stock will recognize gain or loss equal to the Company 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, dated the Closing Date and signed by its Chairman certificate of the BoardCompany substantially in the form of the Company Tax Certificate attached to the Disclosure Schedule, Chief Executive Officer a certificate of Parent substantially in the form of the Parent Tax Certificate attached to the Parent Disclosure Schedule and President representations contained in other appropriate certificates of the Company, Parent, certain shareholders of the Company, and others. (c) 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 (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 Senior Vice President, certifying that result of the conditions Merger or any of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedthe other transactions contemplated by this Agreement.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement shall be accurate true in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained qualifiers), in any each case when made and, unless a representation speaks of a specific representation or warranty) date, on and as of the Closing Date with the same force and effect as though if made on and as of such date, except where failures to be so true could not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect; PROVIDED HOWEVER, such Parent Material Adverse Effect qualification shall be inapplicable with respect to the representations and warranties contained in Sections 3.2 and 3.10 (which representations shall be true and correct at the applicable times in all material respects) and (iii) the Company shall have received a certificate signed on behalf of Parent by the chief executive officer and chief financial officer of Parent to such effect. (b) 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 will be treated for Federal income Tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) Parent, 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 been withdrawn or modified in any material respect as of the Closing Date except Date. (ic) for inaccuracies arising from changes At any time on or actions contemplated by this Agreement, (ii) that the accuracy of representations and warranties that by their terms speak as of after the date of this Agreement or some other date will be determined as of such date (subject to the qualification set forth in clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof to the Closing Date, there shall not have been occurred any condition, event or occurrence which could, individually or in the aggregate, reasonably be likely to cause a Parent Material Adverse Effect on Parent;Effect. (d) The shares There shall not be pending or threatened by any governmental authority any Action before any United States court or other governmental body of Parent Common Stock issuable in competent jurisdiction, which challenges or seeks to restrain or prohibit the Merger shall have been approved for listing on consummation of the Nasdaq, subject only to official notice of issuance; andMerger. (e) Parent 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 delivered to the Company a certificatebeen obtained, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfieddeclared or filed or be deemed to have occurred, as the case may be, and all such approvals or consents shall be in full force and effect.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect the Merger is are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Effective Time of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Buyer. (b) The representations and warranties of Parent Buyer and Acquisition Sub contained herein in this Agreement that are qualified by materiality shall be accurate true and correct 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 and as of such date the Effective Time; (subject to the qualification set forth in clause (iiic) below) and (iii) where any such failure of the The representations and warranties to of Buyer and Acquisition Sub in this Agreement that are not qualified by materiality shall be true and correct in all material respects would not constitute a Material Adverse Effect on Parentas of the date of this Agreement and as of the Effective Time; (bd) Parent Buyer and Acquisition Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Dateunder this Agreement; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect 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 An officer of Buyer and Acquisition Sub shall have delivered to the Company a certificatecertificate to the effect that each of the conditions specified in Sections 7.03(a), (b) and (c) is satisfied in all respects; (f) The Company shall have received an opinion, dated the Closing Date Effective Time, of Goulston & Storrs, P.C., counsel to Buyer, in form reasonably satisfactory to the Company, with respect to the matters set forth in Sections 4.01, 4.02, 4.03 and signed 4.04 (including as to the Buyer Stockholder Approval) hereof; (g) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which any of Buyer or its subsidiaries is a party, or by its Chairman which any of them is bound, as may be required to be obtained by them in connection with the performance of this Agreement, the failure to obtain which would prevent the consummation of the BoardMerger or have, Chief Executive Officer and President individually or in the aggregate, a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) material adverse effect on Buyer shall have been satisfiedobtained; (h) At the mailing date of the Proxy Statement and the date of the Company Stockholders Meeting, the Proxy Statement shall not contain, with respect to the information provided by Buyer and Acquisition Sub, any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading; and (i) No suit, action or proceeding before any court or any governmental or regulatory authority shall have been commenced and be pending by any person (i) against the Company's officers or directors seeking to obtain any substantial damages relating to the consummation of the transactions contemplated by this Agreement from the members of the Company's Board of Directors or officers individually, or (ii) against the Company challenging the Merger which is reasonably likely to have a material adverse effect on the Buyer.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect consummate the Merger is subject to the fulfillment satisfaction at or prior to the Closing of the following additional conditions, any of conditions (which may be waived if waived in writing whole or in part by the Company:): (a) The representations and warranties of Parent and Merger Sub contained herein set forth in this Agreement (except those representations and warranties set forth in the proviso below) shall be accurate in all respects true and correct (but without regard giving effect to any materiality qualifications or references to Parent 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 Agreementqualifier therein), (ii) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date as though made on or some other date will be determined as of such date (subject to or, in the qualification set forth in clause (iii) below) case of representations and (iii) warranties that address matters only as of a particular date, as of such date), except where any such the failure of the such representations and warranties to be true and correct, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect; provided, that the representations and warranties of Parent and Merger Sub set forth in Sections 4.3(a) and 4.3(b) shall be so true and correct in all material respects would not constitute and the representations and warranties of the Parent set forth in Section 4.7(b) shall be true and correct in all respects, in 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 Material Adverse Effect particular date, as of such date). The Company shall have received a certificate signed on Parent;behalf of Parent by a senior executive officer certifying that this condition has been satisfied. (b) Parent and Merger Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by each of them prior to the Closing Date; (c) During Closing, and the period from the date hereof to the Closing Date, there Company shall not have been any Material Adverse Effect received a certificate signed on Parent; (d) The shares behalf 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 by a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, senior executive officer certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have this condition has been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect the Merger is are further subject to the fulfillment satisfaction or waiver at or prior to the Closing of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of Parent and Merger Sub contained herein in this Agreement shall be accurate true and correct in all respects (but without regard to any materiality qualifications or references to Parent Material Adverse Effect contained in any specific representation or warranty) as of the Closing Date with the same effect as though made as date of the Closing Date except (i) for inaccuracies arising from changes or actions contemplated by this Agreement, (ii) that the accuracy of representations Agreement and warranties that by their terms speak as of the date of this Agreement the Closing as though made on and as of the Closing (except for representations or some other date warranties expressly made as of a specific date, the accuracy of which will be determined as of such date (subject to the qualification set forth in clause (iii) below) and (iii) specified date), except where any such failure of the such representations and warranties in the aggregate to be true and correct in all respects would not constitute reasonably be expected to have a Parent Material Adverse Effect on ParentEffect; (b) Parent and Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them under this Agreement at or prior to the Closing DateEffective Time; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent; (d) The shares Each of Parent Common Stock issuable in the and Merger shall have been approved for listing on the Nasdaq, subject only to official notice of issuance; and (e) Parent Sub shall have delivered to the Company a certificatecertificate to the effect that each of the conditions specified in Sections 6.3(a) and (b) above has been satisfied in all respects; and (d) The Company shall have received the opinion of Xxxxxxx Xxxx, in form and substance reasonably satisfactory to the Company, dated the Closing Date Date, rendered on the basis of facts, representations and signed by its Chairman assumptions set forth in such opinion and the 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 BoardEffective Time, Chief Executive Officer and President or a Senior Vice President, certifying to the effect that the conditions Merger will qualify as a "reorganization" within the meaning of Sections 8.2(aSection 368(a) of the Code. In rendering the opinion described in this Section 6.3(d), 8.2(bXxxxxxx Xxxx shall have received and may rely upon the certificates and representations referred to in Section 5.16(b) and 8.2(c) have been satisfiedhereof.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement shall be accurate true and correct in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) on and as of the Closing Date with the same force and effect as though if 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 on 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 except to the qualification set forth in clause (iii) below) and (iii) where any extent such failure of the representations and warranties speak as of an earlier date), except where the failure to be true and correct in all respects would shall not constitute a Material Adverse Effect on Parent;Parent and its subsidiaries, taken as a whole. The Company shall have received a certificate signed on behalf of Parent by the chief executive officer and chief financial officer of Parent and Sub to such effect. (b) Parent and Sub On the date of the Proxy Statement, the Company shall have performed received from Salomon Brothers Inc a letter, dated such date, confirming the opinion referred to in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date;Section 2.16. (c) During the period from the date hereof The Company shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Closing DateCompany, there shall not have been any Material Adverse Effect on dated as of the Effective Time, to the effect that the Merger will constitute a 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 rely upon representations contained in the certificates of officers of Parent; (d) The , Sub, the Company and others, as well as certificates of shareholders who beneficially own five percent or more of the outstanding shares of Parent the Company Common Stock issuable in the Merger shall have been approved if Xxxxxxx Xxxxxxx & Xxxxxxxx determines that such certificates are necessary for listing on the Nasdaq, subject only to official notice purposes of issuance; and (e) Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedrendering such opinion.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement qualified as to materiality shall be accurate true in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained respects, and those not so qualified shall be true in any specific representation or warranty) all material respects, in each case when made and on and as of the Closing Date with the same force and effect as though if made on and as of such date, except as expressly contemplated or otherwise expressly permitted by this Agreement. The Company shall have received a certificate signed on behalf of Parent by the Closing Date except chief executive officer and chief financial officer of Parent to such effect. (b) 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 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 been withdrawn or modified in any material respect. (c) 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) for inaccuracies arising from changes challenging or actions 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, (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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent;. (d) The shares To the extent required hereunder, each of Parent Common Stock issuable and the Escrow Agent shall have executed and delivered the Escrow Agreement in the Merger form of Exhibit B hereto and Parent shall have been approved for listing on deposited the Nasdaq, subject only to official notice of issuance; andEscrowed Shares with the Escrow Agent. (e) Parent shall have executed and delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedRegistration Rights Agreement.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to effect the Merger is shall also be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of Parent and 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub AGE shall have performed in all material respects all obligations its agreements contained in this Agreement required to be performed on or prior to the Closing Date and complied the representations and warranties of AGE contained in this Agreement shall be true and correct in all material respects on and as of (i) the date made and (ii) the Closing Date (except in the case of representations and warranties expressly made solely with all covenants required by this Agreement reference to a particular date); and the Company shall have received a certificate of the President of AGE to that effect; (b) The Company shall have received an opinion from Sonnenschein, dated the Closing Date, in a form to be performed or complied with by them mutually agreed upon prior to the Closing DateClosing; (c) During the period from Since the date hereof to the Closing Date, of this Agreement there shall not have been any Material Adverse Effect on Parentwith respect to AGE, the likelihood of which was not previously disclosed to the Company by AGE; (d) The shares of Parent Common Stock issuable in the Merger AGE shall have been approved for listing on furnished to the NasdaqCompany such additional certificates, subject only opinions and other documents as the Company may have reasonably requested as to official notice any of issuance; andthe conditions set forth in this Section 8.2; (e) Parent At the Effective Time, AGE, after giving effect to its receipt of the proceeds of the sale of its Common Stock contemplated by Section 8.1(c), will 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, which may include, 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, 209,541 shares, and AGE's counsel shall have turned over to the Surviving Corporation's counsel the certificates representing such shares to be held in escrow by the Company's counsel pending exercise of said options. (g) Each current director of AGE-Del and the AGE Acquisition Sub, other than Xxxxxx Xxxxxx, shall have resigned and 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 a certificate, dated by or on behalf of AGE pursuant to this Agreement shall be reasonably satisfactory to the Closing Date Company and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(bcounsel. (i) and 8.2(c) The Reincorporation shall have been satisfiedconsummated.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is subject to the fulfillment at satisfaction on or prior to the Closing Date of the following additional conditions, any of conditions (which may be waived if waived in writing whole or in part by the Company:): (a) The representations and warranties of Parent and Merger Sub contained herein set forth in this Agreement that are qualified by materiality shall be accurate true and correct 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 respects, and 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 of Parent and Merger Sub set forth in this Agreement that by their terms speak 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 some other date will be determined as of such date (subject to or, in the qualification set forth in clause (iii) below) and (iii) where any such failure case of the representations and warranties that address matters only as of a particular date, as of such date), and the Company shall have received a certificate to be true and correct in all respects would not constitute a Material Adverse Effect such effect signed on behalf of Parent by an officer of Parent;. (b) Parent and Merger Sub shall have performed in or complied with, as applicable, all material respects all obligations obligations, agreements and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior each of them, and the Company shall have received a certificate to the Closing Date;such effect signed on behalf of Parent by an officer of Parent. (c) During The Company shall have received the period from opinion of Cravath, Swaine and Xxxxx LLP, counsel to the date hereof Company, or the opinion of other tax counsel of a prominent law firm designated by Parent and reasonably acceptable to the Company, dated the Closing Date, there shall not have been any Material Adverse Effect based on Parent; (d) The shares appropriate representations of the Company, its affiliates, and Parent Common Stock issuable in 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 the Merger shall have been approved for listing on will qualify as a reorganization within the Nasdaqmeaning of Section 368 of the Code and that each of Parent, subject only to official notice the direct owner of issuance; and (e) Parent shall have delivered Merger Sub and the Company will be a party to the Company a certificate, dated reorganization within the Closing Date and signed by its Chairman meaning of Section 368(b) of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedCode.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is subject to the fulfillment at satisfaction on or prior to the Closing Date of the following additional conditions, any of conditions (which may be waived if waived in writing whole or in part by the Company:): (a) The representations and warranties of Parent and Merger Sub contained herein set forth in this Agreement shall be accurate in all respects true and correct at and as of the Closing (but without regard to any qualification as to materiality qualifications or references to Parent Material Adverse Effect contained in any specific representation or warrantyEffect) as of the Closing Date with the same effect as though made at and as of such time (or, in the Closing Date except (i) for inaccuracies arising from changes or actions contemplated by this Agreement, (ii) that the accuracy case of representations and warranties that by their terms speak address matters only as of the date of this Agreement or some other date will be determined a particular date, as of such date (subject to the qualification set forth in clause (iii) below) and (iii) where any date), except for such failure of the representations and warranties failures to be true and correct in all respects as would not constitute reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect Effect, and the Company shall have received a certificate to such effect signed on behalf of Parent by an officer of Parent;. (b) Parent and Merger Sub shall have performed in or complied with, as applicable, all material respects all obligations obligations, agreements and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior each of them, and the Company shall have received a certificate to the Closing Date;such effect signed on behalf of Parent by an officer of Parent. (c) During The Company shall have received the period from opinion of Xxxxxx, Xxxxxx & Xxxxx LLP or, if such firm is unable to render such opinion, the date hereof to opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the Closing Date, there shall not have been any Material Adverse Effect based on Parent; 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 (d1) The shares the Merger will qualify as a reorganization within the meaning of Section 368 of the Code; (2) each of Parent Common Stock issuable in and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and (3) the Merger shall have been approved for listing on the Nasdaq, subject only to official notice will qualify as a complete liquidation of issuance; and (e) Parent shall have delivered to the Company a certificate, dated within the Closing Date and signed by its Chairman meaning of Section 332 of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedCode.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations Each representation and warranties warranty of Parent and Sub HCPI contained herein in this Agreement that is qualified by materiality 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) true and correct at and as of the Closing Date with the same effect Effective Time as though if made at and as of the Closing Date except (i) for inaccuracies arising from changes or actions contemplated by this Agreement, (ii) Effective Time and each representation and warranty of HCPI 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to is not so qualified shall be true and correct in all material respects would not constitute a Material Adverse Effect on Parentat and as of the Effective Time as if made as of the Effective Time, in each case, except (i) as contemplated or permitted by this Agreement and (ii) to the extent that any such representation or warranty shall have been expressly made as of an earlier date, in which case such representation and warranty shall have been true and correct, or true and correct in all material respects, as the case may be, as of such earlier date; (b) Parent and Sub HCPI shall have performed in all material respects all obligations and or complied in all material respects with all covenants obligations required by this Agreement to be performed or complied with by them it at or prior to the Closing Date; (c) During The Company shall have received a certificate executed on behalf of HCPI by the period from the date hereof Chief Executive Officer or Chief Financial Officer of HCPI to the Closing Date, there shall not have been any Material Adverse Effect on Parenteffect set forth in clauses (a) and (b) of this Section 7.2; (d) The shares Company shall have received an opinion of Parent Common Stock issuable 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 "reorganization" within the meaning of Section 368(a) of the Code, and (ii) Company and HCPI will each be a party to that reorganization within the meaning of 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 Merger shall have been approved 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 taxable year ended December 31, 1985, HCPI was organized in conformity with the requirements for listing on qualification and taxation as a REIT under the NasdaqCode, subject only and (ii) its method of operation has enabled it and its proposed method of operation will enable it to official notice of issuancecontinue to meet the requirements for qualification and taxation as a REIT under the Code; and (ef) Parent Xxxxxx Xxxxxxxx, LLP shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chairman letter described in clause (a) of Section 6.14 at the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions time provided in clause (a) of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedSection 6.14.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived by the Company, the obligation of the Company to effect the Merger is shall also be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations Each of HDG and warranties of Parent and 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and HDG Sub shall have performed in all material respects all obligations its covenants and complied agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of HDG and HDG Sub contained in this Agreement shall be true and correct in all material respects on and as of (i) the date made and (ii) the Closing Date (except in the case of representations and warranties expressly made solely with all covenants required by this Agreement reference to be performed or complied with by them prior a particular date), and the Company shall have received a certificate of the President of HDG and HDG Sub to that effect in substantially the form of EXHIBIT XV hereto; (b) The Company shall have received an opinion from Christensen, Miller, Fink, Jacobs, Xxxxxx, Xxxx and 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) During the period The Company shall have received "comfort" letters from Xxxxxxx X. Xxxxxx & Company, LLP, independent public accountants for HDG, dated the date hereof 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 Closing DateCompany) 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 of this Agreement there shall not have been any Material Adverse Effect on Parentwith respect to HDG or HDG Sub; (df) The shares Company shall have received from HDG and HDG Sub an executed original of Parent 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 issuable 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 Merger case of each Escrow Share, and (ii) at 125% of the Transaction Price in the case of each Escrow Option; (n) HDG shall have been approved for listing on collected all of the Nasdaqcertificates 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 only to official notice a contract to sell or an option to purchase, pledged, transferred, made subject to an open "put equivalent position" within the meaning of issuance; and (eRule 16a-1(a) Parent 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, dated letter from AST certifying that it holds the Closing Date Escrow Shares and signed by its Chairman Escrow Options pursuant to the terms and conditions of the Board, Chief Executive Officer and President Escrow Agreement; (p) HDG's stockholders (pre-Effective Time) shall have approved the appointment of the following persons (or a Senior Vice President, certifying that other persons as may be substituted by the conditions Company prior to the filing of Sections 8.2(a), 8.2(bthe Proxy Statement/Prospectus) and 8.2(c) have been satisfied.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 of the Company to effect the Merger is shall be subject to the fulfillment or waiver at or prior to the Closing Effective Time of the additional following additional conditions, any of which may be waived if waived in writing by the Company: (a) 6.2.1. The representations and warranties of Parent and 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub Acquiror shall have performed in all material respects all obligations its covenants contained in this Agreement required to be performed at or prior to the Effective Time. 6.2.2. The representations and complied warranties of the Acquiror contained in this Agreement shall be true in all material respects with (other than representations and warranties of the Acquiror contained in this Agreement which are qualified as to materiality, which shall be true in all covenants required 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 performed 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 complied with by them prior to the Closing Date;times. (c) 6.2.3. During the period from the date hereof to 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 on Parent;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. (d) 6.2.4. 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 Acquiror shall have delivered to the Company a certificate, dated the Closing Date and date of the Closing, signed by its Chairman the President or Vice President and by the Chief Financial Officer of the BoardAcquiror that, Chief Executive Officer to the best of their knowledge and President or a Senior Vice Presidentbelief after due inquiry, certifying that the conditions of set forth in Sections 8.2(a)6.2.1, 8.2(b) 6.2.2 and 8.2(c) 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 or any document related hereto and 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 form and substance reasonably satisfactory to such Board, dated as of the date of the Joint Proxy Statement/Prospectus, that the Merger is fair to the stockholders of the Company from a financial point of view.

Conditions to Obligations of the Company to Effect the Merger. The Unless waived in writing by the Company, the obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub the Subsidiary contained herein shall be accurate in all respects this Agreement (but without regard to any materiality qualifications exceptions or references to Material Adverse Effect contained in any specific representation or warrantyprovisions therein) 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to shall be true and correct in all respects would on and as of (i) the date made and (ii) the Closing Date (except for those variations, changes and inaccuracies which, taken as a whole, do not constitute result in a Material Adverse Effect on with respect to Parent); and the Company shall have received a certificate of the Chairman of the Board and the President or a Vice President of Parent to that effect; (b) The Company shall have received an opinion from Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel to Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to Subsidiary, dated the Closing Date, substantially in the form set forth in Exhibit V hereto; (c) During All of the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent; (d) The shares of Parent Common Stock issuable 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 approved authorized for listing on the Nasdaq, subject only to NASDAQ National Market upon official notice of issuance; and (d) The Company shall have received an opinion of Xxxxx & Xxxxxx, 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) Parent The Company shall have received from Parent an executed original of the Parent Tax Matters Certificate; (f) If required by the Company, 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 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 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 a certificate, dated the Closing Date and signed by its Chairman or on behalf of the Board, Chief Executive Officer Parent pursuant to this Agreement shall be reasonably satisfactory to the Company and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedits counsel.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at satisfaction (or waiver by the Company) on or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of each of Parent and 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 Merger Subsidiary (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 clause (iii) below) and (iii) where any such failure of the representations and warranties to Section 5.07 shall be true and correct in all material respects would not constitute a 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 limitation as to “materiality” or “Material Adverse Effect on Parent;Effect” 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 Sub shall Merger Subsidiary will have performed in all material respects all obligations of the obligations, and complied in all material respects with all covenants the agreements and covenants, required by this Agreement to be performed or complied with by them under this Agreement at or prior to the Closing Date;. (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect 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 a certificate, dated as of the Closing Date and signed on behalf of Parent by its Chairman a duly authorized officer of the Board, Chief Executive Officer and President or a Senior Vice PresidentParent, certifying to the effect that the conditions of set forth in Sections 8.2(a), 8.2(b8.03(a) and 8.2(c8.03(b) have been satisfied.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement qualified as to materiality shall be accurate true and correct in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained respects, and those not so qualified shall be true and correct in any specific representation or warranty) all material respects, in each case when made and on and as of the Closing Date with the same force and effect as though if made on and as of the Closing Date such date, except (i) for inaccuracies arising from changes as expressly contemplated or actions contemplated otherwise expressly permitted 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof The Company shall have received a certificate signed on behalf of Parent by two executive officers of Parent to the Closing Date, there shall not effect that the conditions set forth in clauses (a) and (b) above have been any Material Adverse Effect on Parentsatisfied; (d) The shares Company and the Sellers shall have received an opinion of Parent Common Stock issuable 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 "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 approved for listing on paid in full by Parenx xx accordance with the Nasdaq, subject only to official notice of issuanceterms hereof; and (ef) Parent The Registration Rights Agreement shall have been duly executed and delivered to the Company a certificate, dated the Closing Date by Parent and signed by its Chairman shall be in full force and effect as of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedEffective Time.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect consummate the Merger is are subject to the fulfillment at or prior to the Closing Effective Time of each of the following additional further conditions, any or all of which may be waived if waived in writing whole or in part by the Company, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and Merger Sub contained herein shall be correct and 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 on 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 except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be correct and accurate as of such date or with respect to such period), except where the qualification set forth in clause (iii) below) and (iii) where any such failure of the 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 all respects would this Section 7.3(a) if Parent has made and not constitute revoked a Material Adverse Effect Stock Election; and the Company shall have received a certificate, dated the Closing Date, signed on Parentbehalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and Merger Sub shall each have performed in all material respects all obligations and or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with by them on or prior to the Closing Date; (c) During Effective Time; and the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent; (d) The shares of Parent Common Stock issuable in the Merger Company 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 received a certificate, dated the Closing Date and Date, signed on behalf of Parent by its Chairman of the Board, Chief Executive Officer and President 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 would be reasonably likely to have a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedParent Material Adverse Effect.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Sub contained herein in this Agreement qualified as to materiality shall be accurate true in all respects (but without regard to any materiality qualifications or references to Material Adverse Effect contained respects, and those not so qualified shall be true in any specific representation or warranty) all material respects, in each case when made and on and as of the Closing Date with the same force and effect as though if made on and as of such date, except as expressly contemplated or otherwise expressly permitted by this Agreement. The Company shall have received a certificate signed on behalf of Parent by the Closing Date except chief executive officer and chief financial officer of Parent to such effect. (b) The opinion, based on appropriate representations of Parent, the Company, and certain stockholders of the 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 been withdrawn or modified in any material respect. (c) 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) for inaccuracies arising from changes challenging or actions 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, (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 clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute a Material Adverse Effect on Parent; (b) Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent;. (d) The shares To the extent required hereunder, each of Parent Common Stock issuable and the Escrow Agent shall have executed and delivered the Escrow Agreement in the Merger form of Exhibit B hereto and Parent shall have been approved for listing on deposited the Nasdaq, subject only to official notice of issuance; andEscrowed Shares with the Escrow Agent. (e) Parent shall have executed and delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedRegistration Rights Agreement.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations Each representation and warranties warranty of Parent and Merger Sub contained herein shall be accurate in all respects (but this Agreement, without regard giving effect to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) materiality therein, shall be true and correct at and as of the Closing Date with the same effect as though if made at and as of the Closing Date Date, except (i) for inaccuracies arising from changes as contemplated or actions contemplated permitted by this Agreement, (ii) to the extent that the accuracy of representations and warranties that by their terms speak any such representation or warranty shall have been expressly made as of the date of this Agreement an earlier date, in which case such representation and warranty, without giving effect to any materiality qualifications or some other date will be determined references to materiality therein, shall have been true and correct as of such date (subject to the qualification set forth in clause (iii) below) earlier date, and (iii) where to the extent that any and all failures of such failure of the representations and warranties to be true and correct correct, shall not result in all respects would not constitute a Parent Material Adverse Effect on ParentEffect; (b) Parent and Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants obligations required by this Agreement to be performed or complied with by them it at or prior to the Closing Date; (c) During The Company shall have received a certificate executed on behalf of Parent by the period from the date hereof Chief Executive Officer or Chief Financial Officer of Parent to the Closing Date, there shall not have been any Material Adverse Effect on Parenteffect set forth in clauses (a) and (b) of this Section 7.2; (d) The shares 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 "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP may receive and 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 Common Stock issuable in the Merger shall have been approved for listing on the Nasdaq, subject only NYSE for the period of ten trading days prior to official notice of issuance; and (e) Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedshall 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 effect the Merger is are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Effective Time of the following additional conditions, any of which may be waived if waived in writing by the Company: (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 Acquisition Sub contained herein in this Agreement that are qualified by materiality shall be accurate true and correct 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 and as of such date the Effective Time; (subject to the qualification set forth in clause (iiic) below) and (iii) where any such failure of the The representations and warranties to of the Parent and the Acquisition Sub in this Agreement that are not qualified by materiality shall be true and correct in all material respects would not constitute a Material Adverse Effect on Parentas of the date of this Agreement and as of the Effective Time; (bd) Parent and Acquisition Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Dateunder this Agreement; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect 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 and Acquisition Sub each shall have delivered to the Company a certificatecertificate to the effect that each of the conditions specified in Sections 7.03(a), (b), (c) 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 performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, 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 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 likely to have a 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 Closing Date 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 signed 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 its Chairman Section 6.01(b) shall be in full force and effect; (m) Parent shall have terminated the each of the BoardParent 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, Chief Executive Officer including any interest and President penalties, and shall have delivered a certificate 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 a Senior Vice President, certifying that release of such obligations as may be reasonably requested by counsel for the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedCompany.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect consummate the Merger is are subject to the fulfillment at or prior to the Closing Effective Time of each of the following additional further conditions, any or all of which may be waived if waived in writing whole or in part by the Company, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and Merger Sub contained herein shall be correct and 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 on 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 except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be correct and accurate as of such date or with respect to such period), except where the qualification set forth in clause (iii) below) and (iii) where any such failure of the such representations and warranties to be true correct and correct in all respects accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein) would not constitute have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on the Parent, 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 in all material respects all obligations and or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with by them on or prior to the 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; (c) During the period from the date hereof to Company shall have received an opinion of Baker & Hostetler LLP, counsel for Parent, dated as of the Closing Date, there shall not 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 any Material Adverse Effect on Parentorganized 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 shares the Company shall have received an opinion of Parent Common Stock issuable 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 shall have been approved for listing on is a "reorganization" within the Nasdaq, subject only to official notice meaning of issuanceSection 368(a)(1)(A) and (a)(2)(E) of the Code; and (e) Parent from the date of this Agreement through the Effective Time, there shall not have delivered occurred an event that would be reasonably likely to the Company have a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedMaterial Adverse Effect on Parent.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect consummate the Merger is are subject to the fulfillment at or prior to the Closing Effective Time of each of the following additional further conditions, any or all of which may be waived if waived in writing whole or in part by the Company, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and Merger Sub contained herein shall be correct and 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 on 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 except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be correct and accurate as of such date or with respect to such period), except where the qualification set forth in clause (iii) below) and (iii) where any such failure of the 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 all respects would this Section 7.3(a) if Parent has made and not constitute revoked a Material Adverse Effect Stock Election; and the Company shall have received a certificate, dated the Closing Date, signed on Parentbehalf of Parent by its Chief Executive Officer or Chief Financial Officer to such effect; (b) Parent and Merger Sub shall each have performed in all material respects all obligations and or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with by them on or prior to the Closing Date; (c) During Effective Time; and the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parent; (d) The shares of Parent Common Stock issuable in the Merger Company 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 received a certificate, dated the Closing Date and Date, signed on behalf of Parent by its Chairman of the Board, Chief Executive Officer and President 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 would be reasonably likely to have a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedParent Material Adverse Effect.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations Each representation and warranties warranty of Parent and Merger Sub contained herein shall be accurate in all respects (but this Agreement, without regard giving effect to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) materiality therein, shall be true and correct at and as of the Closing Date with the same effect as though if made at and as of the Closing Date Date, except (i) for inaccuracies arising from changes as contemplated or actions contemplated permitted by this Agreement, (ii) to the extent that the accuracy of representations and warranties that by their terms speak any such representation or warranty shall have been expressly made as of the date of this Agreement an earlier date, in which case such representation and warranty, without giving effect to any materiality qualifications or some other date will be determined references to materiality therein, shall have been true and correct as of such date (subject to the qualification set forth in clause (iii) below) earlier date, and (iii) where to the extent that any and all failures of such failure of the representations and warranties to be true and correct correct, shall not result in all respects would not constitute a Parent Material Adverse Effect on Parent;Effect; 62 (b) Parent and Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants obligations required by this Agreement to be performed or complied with by them it at or prior to the Closing Date; (c) During The Company shall have received a certificate executed on behalf of Parent by the period from the date hereof Chief Executive Officer or Chief Financial Officer of Parent to the Closing Date, there shall not have been any Material Adverse Effect on Parenteffect set forth in clauses (a) and (b) of this Section 7.2; (d) The shares 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 "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and 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 Common Stock issuable in the Merger shall have been approved for listing on the Nasdaq, subject only NYSE for the period of ten trading days prior to official notice of issuance; and (e) Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedshall 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 effect the Merger is shall be subject to the fulfillment satisfaction at or prior to the Closing Effective Time of the following additional conditions, any of which may be unless waived if waived in writing by the Company: (a) The representations and warranties of 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 (disregarding all qualifications and exceptions contained herein shall be accurate in all respects (but without regard to any therein regarding materiality qualifications or references to a Parent Material Adverse Effect contained in or any specific representation similar standard 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 Agreementqualification), (ii) that the accuracy of representations shall be true and warranties that by their terms speak correct as of the date of this Agreement or some other date will be determined and as of such date the Effective Time as if made at and as of that time (subject except for representations and warranties made only as of a specified date, which shall be true and correct as of the specified date), except to the qualification set forth in clause (iii) below) and (iii) where any extent that all failures of such failure of the representations and warranties to be so true and correct in (disregarding all respects would not constitute qualifications and exceptions contained therein regarding materiality or a Parent Material Adverse Effect on Parent;or any similar standard or qualification), individually or in the aggregate, have not had, and would not reasonably be expected to have, a Parent Material Adverse Effect, and the Company shall have received a certificate from each of Merger Sub and the Parent signed by its respective President, in its capacity as an officer of Parent or Merger Sub, as applicable, and not in its individual capacity, to that effect; and (b) Merger Sub and the Parent and Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with hereunder by them it at or prior to the Closing Date; (c) During Effective Time and the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect 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 received a certificate from each of Merger Sub and the Company a certificate, dated the Closing Date and Parent signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice respective President, certifying in its capacity as an officer of Parent or Merger Sub, as applicable, and not in its individual capacity, to that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedeffect.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company Company, CTOP and Pinecreek OP to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of Parent Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub contained herein in this Agreement shall be accurate in all respects true and correct (but without regard to any materiality qualifications or references to Parent Material Adverse Effect qualifier contained in any specific representation or warranty) therein), on and as of the date hereof and on and as of the Closing Date with the same effect as though if made at and as of the Closing Date (except (i) for inaccuracies arising from changes or actions contemplated by this Agreement, (ii) that the accuracy of any representations and warranties that by their terms speak made as of a specified date, which shall be true and correct as of the date of this Agreement or some other date will be determined as specified date), except where the failure of such date (subject to the qualification set forth in clause (iii) below) and (iii) where any such failure of the representations and warranties to be true and correct in all respects would not constitute reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on Parent;Effect; provided, however, that the representations set forth in Section 4.3(Capitalization), Section 4.5(Compliance), Section 4.6(SEC Documents), Section 4.7(Absence of Certain Changes), 4.10(Taxes), 4.12(Proxy Statement; Form S-4 Registration Statement; Other Information) and 4.13 (Authorization for Parent Common Stock) need only be true and correct for purposes of satisfying the condition set forth in this Section 7.2(a) if Parent has made and not revoked a Stock Election. (b) Parent and Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants obligations required by this Agreement to be performed or complied with by them it at or prior to the Closing Date;. (c) During the period from the date hereof to the Closing Date, there There shall not be instituted, pending or threatened any Action by a Governmental Entity as a result of this Agreement or any of the 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 been any a Parent Material Adverse Effect on Parent(assuming for purposes of this Section 7.2(c) that the Merger shall have occurred); (d) The shares Company shall have received a certificate executed on behalf of Parent Common Stock issuable by the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in the Merger shall have been approved for listing on the Nasdaq, subject only to official notice clauses (a) and (b) of issuance; andthis Section 7.2. (e) if Parent has made a Stock Election, the Company shall have delivered 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 Company effect that, commencing with its inception Parent was organized in conformity with the requirements for qualification and taxation as a certificateREIT under the Code, dated 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 signed by its Chairman of the BoardParent has made a Stock Election, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) 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 effect the Merger is are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Effective Time of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations and warranties of Parent and 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 clause (iii) below) and (iii) where any such failure of the representations and warranties to that are qualified by materiality shall be true and correct in all 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 constitute 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 and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing Date; (c) During the period from the date hereof to the Closing Date, there shall not have been any Material Adverse Effect on Parentunder this Agreement; (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 and Sub shall have delivered to the Company a certificatecertificate of an officer of each of Parent and Sub, dated respectively, to the Closing Date and signed by its Chairman effect that each of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of specified in Sections 8.2(a8.03(a), 8.2(b(b) and 8.2(c(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, a Material Adverse Effect on the Parent, shall have been satisfiedobtained; (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; and (h) Parent shall have delivered the Cash Consideration and the Stock Consideration as set forth in Article II.

Conditions to Obligations of the Company to Effect the Merger. The obligation obligations of the Company to effect consummate the Merger is are subject to the fulfillment at or prior to the Closing Effective Time of each of the following additional further conditions, any or all of which may be waived if waived in writing whole or in part by the Company, to the extent permitted by applicable Law: (a) The the representations and warranties of Parent and Merger Sub contained herein shall be correct and 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 on 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 except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be correct and accurate as of such date or with respect to such period), except where the qualification set forth in clause (iii) below) and (iii) where any such failure of the such representations and warranties to be true correct and correct in all respects accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein) would not constitute have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on the Parent, 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 in all material respects all obligations and or complied in all material respects with all obligations, agreements and covenants required by this Agreement to be performed by it or complied with by them on or prior to the 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; (c) During the period from the date hereof to Company shall have received an opinion of Baker & Hostetler LLP, counsel for Parent, dated as of the Closing DateDatx, there shall not 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 any Material Adverse Effect on Parentorganized 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 shares the Company shall have received an opinion of Parent Common Stock issuable 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 shall have been approved for listing on is a "reorganization" within the Nasdaq, subject only to official notice meaning of issuanceSection 368(a)(1)(A) and (a)(2)(E) of the Code; and (e) Parent from the date of this Agreement through the Effective Time, there shall not have delivered occurred an event that would be reasonably likely to the Company have a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedMaterial Adverse Effect on Parent.

Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger is shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived if waived in writing by the Company: (a) The representations Each representation and warranties warranty of Parent and Merger Sub contained herein shall be accurate in all respects (but this Agreement, without regard giving effect to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) materiality therein, shall be true and correct at and as of the Closing Date with the same effect as though if made at and as of the Closing Date Date, except (i) for inaccuracies arising from changes as contemplated or actions contemplated permitted by this Agreement, (ii) to the extent that the accuracy of representations and warranties that by their terms speak any such representation or warranty shall have been expressly made as of the date of this Agreement an earlier date, in which case such representation and warranty, without giving effect to any materiality qualifications or some other date will be determined references to materiality therein, shall have been true and correct as of such date (subject to the qualification set forth in clause (iii) below) earlier date, and (iii) where to the extent that any and all failures of such failure of the representations and warranties to be true and correct correct, shall not result in all respects would not constitute a Parent Material Adverse Effect on ParentEffect; (b) Parent and Sub shall have performed in all material respects all obligations and or complied in all material respects with all covenants obligations required by this Agreement to be performed or complied with by them it at or prior to the Closing Date; (c) During The Company shall have received a certificate executed on behalf of Parent by the period from the date hereof Chief Executive Officer or Chief Financial Officer of Parent to the Closing Date, there shall not have been any Material Adverse Effect on Parenteffect set forth in clauses (a) and (b) of this Section 7.2; (d) The shares 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 “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and 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 Common Stock issuable in the Merger shall have been approved for listing on the Nasdaq, subject only NYSE for the period of ten trading days prior to official notice of issuance; and (e) Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by its Chairman of the Board, Chief Executive Officer and President or a Senior Vice President, certifying that the conditions of Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfiedshall not be less than $25.00 per share.