Common use of Conditions to the Obligations of Acquiror Clause in Contracts

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of ----------------------------------------- Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of ----------------------------------------- Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (ci) the Senior Subordinated Notes Proceeds shall have been released to the Acquiror from the escrow account into which they were deposited in connection with the closing of the offering of the Acquiror Senior Subordinated Notes, and (ii) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger Acquisition are subject to the satisfaction of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect Sections 4.01, 4.02 and 4.05 shall be true and correct when made and in all material respects at and as of the Effective Time, Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time) and (B) all the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein, except in the case of the representations and warranties contained in Section 4.11(a), for which such qualifiers shall have been not be disregarded) shall be true and correct in all material respects when made and at and as of the time of the Effective Time, Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except, in the case of this clause (B) only (but not with respect to the representations and warranties contained in Section 4.11(a)), to the extent that the failure of such representations and warranties to be true has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) there shall not be instituted and pending any litigation or proceeding (or any investigation that would reasonably be expected to result in such litigation or proceeding) by any Governmental Authority with respect to the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) Acquisition under the U.S. Antitrust Laws that would render consummation of the Merger illegal or (ii) would reasonably be reasonably likely expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if Effect (disregarding clause (E) of such definition for these purposes) on the failure of this condition is due to willful breach by Holding Company or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the FinancingAcquiror; (c) (i) in the funding contemplated by event that the Commitment Letters Anti-Monopoly Bureau has notified Acquiror in writing that the approval of the Anti-Monopoly Bureau is required under the PRC Anti-Monopoly Law to consummate the Acquisition, such approval shall have been obtained on substantially the terms set forth and (ii) in the Commitment Letters or event that the funding Anti-Monopoly Bureau has notified Acquiror in writing that the Anti-Monopoly Bureau has initiated an investigation under the PRC Anti-Monopoly Law with respect to the Acquisition pursuant to Article 4 of the alternative financing contemplated Regulation on the Reporting Threshold of Business Concentration promulgated by Section 7.7 the PRC State Council on August 3, 2008 (or under any implementing rules or regulations adopted by the Ministry of Commerce of the PRC, including by the Anti-Monopoly Bureau pursuant to the PRC Anti-Monopoly Law) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (disregarding clause (E) of such definition for these purposes) on the Company or Acquiror, such investigation shall have been obtainedno longer be pending; and (d) except (i) as set forth in the consents Company Disclosure Letter (subject to Section 11.05) or (ii) as disclosed in any Company SEC Document filed prior to the date of this Agreement (excluding any disclosures in the holders Company SEC Documents under the headings “Risk Factors” and “Forward-Looking Statements”), since the date of the Notes required by Section 8.10(a) this Agreement, there shall not have been obtainedany event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (ci) the Senior Subordinated Notes Proceeds shall have been released to the Acquiror from the escrow account into which they were deposited in connection with the closing of the offering of the Acquiror Senior Subordinated Notes, and (ii) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are is subject to the satisfaction of each of the following further conditions: (ia) the Company Each of HII and New Spinco shall have performed in all material respects all of its obligations hereunder required to be performed by it under the Transaction Documents at or prior to the Effective Time, and Acquiror shall have received a certificate signed on behalf of HII by an executive officer of HII to such effect; (iib) (A) the The representations and warranties of the Company HII contained in this Agreement that are qualified and in any certificate or other writing delivered by reference to a Company Material Adverse Effect HII pursuant hereto shall be true and correct when made and in all material respects at and as of the Effective Time, Time as if made at and as of such timetime (it being understood that where any such representation or warranty already includes a Material Adverse Effect or materiality exception, no further materiality exception is to be permitted by this Section) and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer an executive officer of the Company HII to the foregoing effect; (bc) The Acquiror Required Consents listed on Schedule 11.03(c), the Company shall failure of which to obtain could reasonably be expected to have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company an Acquiror Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; (d) No event resulting in a Retained Companies Material Adverse Effect shall have occurred; (e) Acquiror shall have obtained the financing contemplated to be provided to Acquiror pursuant to the Commitment Letter previously delivered to HC; (f) There shall not be pending or threatened any litigation, proceeding or claim brought by any Governmental Authority seeking to enjoin the Merger or any transaction contemplated by this Agreement seeking any hold- separate, divestiture or other order relating thereto or to any other business or asset of Acquiror or any Subsidiary thereof or seeking any other relief that Acquiror reasonably determines would be materially adverse; and (dg) the consents Bass International Holdings N.V. shall have entered into a guarantee of the holders indemnity obligations of HC and New Spinco under this Agreement and the Notes required by Section 8.10(a) shall have been obtainedContribution Agreement reasonably satisfactory to Acquiror.

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are is subject to the satisfaction of each of the following further conditions: (ia) the Company Each of HII and New Spinco shall have performed in all material respects all of its obligations hereunder required to be performed by it under the Transaction Documents at or prior to the Effective Time, and Acquiror shall have received a certificate signed on behalf of HII by an executive officer of HII to such effect; (iib) (A) the The representations and warranties of the Company HII contained in this Agreement that are qualified and in any certificate or other writing delivered by reference to a Company Material Adverse Effect HII pursuant hereto shall be true and correct when made and in all material respects at and as of the Effective Time, Time as if made at and as of such timetime (it being understood that where any such representation or warranty already includes a Material Adverse Effect or materiality exception, no further materiality exception is to be permitted by this Section) and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer an executive officer of the Company HII to the foregoing effect; (bc) The Acquiror Required Consents listed on Schedule 11.03(c), the Company shall failure of which to obtain could reasonably be expected to have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company an Acquiror Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; (d) No event resulting in a Retained Companies Material Adverse Effect shall have occurred; (e) Acquiror shall have obtained the financing contemplated to be provided to Acquiror pursuant to the Commitment Letter previously delivered to HC; (f) There shall not be pending or threatened any litigation, proceeding or claim brought by any Governmental Authority seeking to enjoin the Merger or any transaction contemplated by this Agreement seeking any hold-separate, divestiture or other order relating thereto or to any other business or asset of Acquiror or any Subsidiary thereof or seeking any other relief that Acquiror reasonably determines would be materially adverse; and (dg) the consents Bass International Holdings N.V. shall have entered into a guarantee of the holders indemnity obligations of HC and New Spinco under this Agreement and the Notes required by Section 8.10(a) shall have been obtainedContribution Agreement reasonably satisfactory to Acquiror.

Conditions to the Obligations of Acquiror. The obligations of ------------------------------------------ Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Timetime of the filing of the Certificate of Merger, as if made at and as of such time, time and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of filing of the Effective TimeCertificate of Merger, as if made as of such time, except for such inaccuracies which would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect;; and (b) Acquiror shall have received an opinion of Xxxxx Xxxxxxxxxx LLP in form and substance reasonably satisfactory to Acquiror, dated the date of the filing of the Certificate of Merger, and based upon reasonably requested letters from Acquiror and the Company and certain facts and assumptions set forth in the opinion to the effect that, for federal income tax purposes, the Merger will be treated as a 368 Reorganization, and that each of Acquiror and the Company will be a party to the reorganization within the meaning of Section 368 of the Code; (c) The Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) (assuming the Effective Time had occurred) would be reasonably likely to have, individually have an Acquiror Material Adverse Effect or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing;and (cd) the The funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) 7.15 shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of ------------------------------------------ Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such timetime (PROVIDED that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.2 (other than with respect to the non-applicability of any Takeover Statute other than Section 203 of the DGCL), Section 4.5 (other than with respect to any names listed on Section 4.5(c) of the Company Disclosure Schedule), Section 4.6(b), Section 4.12(h), Section 4.12(i) and Section 4.14 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except for de minimis deviations) when made and at and as of the Effective Time, as if made at and as of such time (PROVIDED that representations made as 52 of a specific date shall be required to be true and correct as of such date only), and (BC) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, (including the Company's representations and warranties in Section 4.2 and Section 4.5 to the extent not covered in Section 9.3(a)(ii)(B) above) as if made at and as of such timetime (PROVIDED that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Acquiror Parent shall have received a certificate signed by the Chief Executive Officer or and the Chief Financial Officer of the Company to the foregoing effect; (b) there shall not be pending (i) any action or proceeding by any Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), before any court or Governmental Entity that has a reasonable likelihood of success seeking (x) to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or the other transactions contemplated hereby or by the Ancillary Agreements or seeking to obtain material damages, (y) to restrain or prohibit Parent's (including its Affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or Affiliates, or to compel Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (z) to impose or confirm material limitations on the ability of Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Company Shares, including, without limitation, the right to vote any Company Shares acquired or owned by Parent or any of its Affiliates on all matters properly presented to the Company Stockholders, and no Governmental Entity or arbitrator shall have issued any judgment, order, decree or injunction, and there shall not be any Law, that, in the sole judgment of Parent is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (x) through (z); PROVIDED, HOWEVER, that Parent shall use its reasonable best efforts to have any such judgment, order, decree or injunction vacated; (c) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to haveidentified on Schedule 9.3(c); PROVIDED, individually or in the aggregate, a Company Material Adverse Effect; provided, howeverHOWEVER, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding Parent or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained its material covenants in any of the agreements related to the Financingthis Agreement; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents aggregate number of Company Shares at the Effective Time, the holders of which have demanded purchase of their shares from the Notes required by Company in accordance with the provisions of Section 8.10(a262 of the DGCL, shall not equal fifteen percent (15%) or more of the Company Shares outstanding as of the record date for the Company Stockholder Meeting; (e) since the date of this Agreement, there shall not have been obtained.occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; (f) the Employment Agreements between the Acquiror and Jeffrey Webb and John Nichols, respectively, shall be in full force and xxxxxx and xxxxxxx Xxxxrey Webb nor John Nichols shall be unable or unwilling, absent x Xxxxxxx xy Parxxx xx Xxxxxror of the applicable Employment Agreement, to provide his services in accordance with the terms and conditions of his Employment Agreement;

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are Transfer of the Assets and the assumption of the Assumed Contracts is subject to the satisfaction (or written waiver by Acquiror) of each of the following further conditions: (ia) the Company Seller shall have performed in and complied within all material respects all of its obligations hereunder and covenants required to be performed or complied with by it under this Agreement at or prior to the Effective Time, (ii) (A) the representations Closing Date and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer an executive officer of the Company General Partner on behalf of Seller to the foregoing effect; (b) The representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant to this Agreement shall be true in all material respects at and as of the Company Closing Date as if made at and as of such time (other than inaccuracies that in the aggregate would not have a Material Adverse Effect and other than representations and warranties made as of a specific time or date which shall have been true at and as of such time or date) and Acquiror shall have received a certificate signed by an executive officer of Seller on behalf of Seller to the foregoing effect; and (c) All relevant Government Entities shall have approved the transfer of all the Permits from Seller to Acquiror or, in lieu thereof, issued new Permits upon substantially the same terms and conditions to Acquiror; (d) The Illiopolis Plant shall be in substantially the same condition that it is in as of the date hereof, reasonable wear and tear excepted; (e) Acquiror shall have obtained or made all consentsa title commitment reasonably acceptable to Acquiror covering the Real Estate with no Liens other than Permitted Liens and subject to Acquiror's reasonable satisfaction that the Liens listed on Schedule 4.4 do not materially adversely affect the operation of the Illiopolis Plant; (f) The Motion of Congoleum requesting authority to cancel with Seller filed in the Bankruptcy Cases on January 28, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made 2002 is either: (i) would render consummation of the Merger illegal denied with prejudice and such contract has not otherwise terminated; or (ii) would granted in which case the Purchase Price shall be reasonably likely reduced by Three Million Dollars ($3,000,000.00), and all material contracts listed on Schedule 6.9 are assignable to haveAcquiror or BCP has obtained the third party consent to such assignment or the Bankruptcy Court has ordered such assignment; (g) Acquiror shall be satisfied in its discretion, individually or in which shall not be arbitrary and capricious, with the aggregate, a Company Material Adverse Effect; provided, however, that this results of the Environmental Assessment and the safety and health compliance audit of the Illiopolis Plant conducted by Acquiror pursuant to Section 6.6 hereof. This condition shall be deemed satisfied if unless Acquiror notifies Seller, in writing, that it is not satisfied with the failure results of this condition is due to willful breach by Holding such Environmental Assessment or Acquiror of any covenant or willful failure to perform any agreement or safety and health compliance audit and provides Seller with a willful breach by Holding or Acquiror of any representation or warranty contained in any copy of the agreements related Environmental Assessment and safety and health compliance audit no later than March 31, 2002; provided, that if Acquiror decides, and Seller agrees, that initial or additional Phase II assessment is required to identify environmental issues at the Financingsite then the above date shall be postponed until April 30, 2002. If Acquiror notifies Seller by the date set forth herein, then, unless both Seller and Acquiror have agreed in writing to a mutually acceptable solution, this Agreement shall terminate, the Xxxxxxx Money Deposit and accrued interest thereon will be returned to Acquiror, and neither party will have any further rights or obligations hereunder in accordance with Section 9.3; (ch) the funding contemplated by the Commitment Letters Acquiror shall have been obtained commitments from third parties to supply, on substantially the terms set forth in the Commitment Letters or the funding commercially reasonable terms, all raw materials necessary to continue operation of the alternative financing contemplated by Section 7.7 shall have been obtainedIlliopolis Plant after Closing at the same production volumes as currently operated; and (di) the consents of Bid Procedures Order and the holders of the Notes required by Section 8.10(a) Sale Order shall have been obtainedtimely entered by the Bankruptcy Court as provided in Section 7 and such orders shall contain the provisions set forth under the respective definition of each such order pursuant to this Agreement and shall otherwise be in form and substance reasonably satisfactory to Acquiror. Any motion for rehearing or reconsideration of the Bid Procedures Order or the Sale Order shall have been denied or withdrawn, and the time allowed for appeals of the Bid Procedures Order or the Sale Order shall have expired without any appeal having been taken or, if the Bid Procedures Order or the Sale Order shall have been appealed, no stay shall be in effect.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger Reorganization, or to permit the consummation of the Reorganization, are subject to the satisfaction or, if permitted by applicable Law, waiver of the following further conditions: (ia) the Company shall have performed in all material respects all each of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are is qualified by reference to a Company Material Adverse Effect materiality shall be true true, complete and correct when made and at on and as of the Effective Time, Closing Date as if made at and as of such time, and the Closing Date (B) all other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct as of such certain date) and each of the Company representations and warranties that is not so qualified shall have been true be true, complete and correct in all material respects when made and at on and as of the time of the Effective Time, Closing Date as if made on and as of such timedate (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct in all material respects as of such certain date), in each case except as contemplated or permitted by this Agreement, and (iii) Acquiror shall have received a certificate signed by of the Chief Executive Officer or Chief Financial Officer President and Treasurer of the Company to the foregoing such effect; (b) the Company shall have obtained performed or made complied in all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements material respects with all agreements and filings contemplated covenants required by Section 4.3 which if not obtained this Agreement to be performed or made (i) would render consummation complied with by it on or prior to the Closing Date and Acquiror shall have received a certificate of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any President and Treasurer of the agreements related Company to the Financingthat effect; (c) the funding contemplated by the Commitment Letters no Company Material Adverse Effect shall have been obtained on substantially occurred since the terms set forth in the Commitment Letters or the funding date of the alternative financing contemplated by Section 7.7 shall have been obtained; andthis Agreement; (d) the consents Escrow Agent and the Shareholders' Agent shall have executed and delivered the Escrow Agreement; (e) there shall not be pending any action, proceeding, claim or counterclaim which seeks to or would, or any order, decree or injunction (whether preliminary, final or appealable) which would, require Acquiror to hold separate or dispose of any of the holders stock or assets of the Notes required by Section 8.10(aCompany or impose material limitations on the ability of Acquiror to control in any material respect the business, assets or operations of either Acquiror or the Company; (f) Acquiror shall have been obtainedreceived a legal opinion from Xxxxxxxx, Xxxxxxx & Xxxxxxx, A Professional Corporation, legal counsel to the Company, in substantially the form attached hereto as Exhibit J; (g) Acquiror and the Company shall have received, each in form and substance reasonably satisfactory to Acquiror, all authorizations, consents, orders and approvals of all Governmental Entities and officials and all third party consents set forth on SCHEDULE 5 hereto; (h) all of the employees of the Company set forth on SCHEDULE 6 hereto shall be employed by the Company and shall not have given any notice that they will not continue to be employed by Acquiror following the Closing Date; (i) Acquiror and each of Xxxxx Xxxxx, Xxx Xxxxxxxx and Xxxxx Xxxxxxx shall have entered into a Retention Agreement, and Acquiror and Xxxx Xxxxxxxx shall have entered into a Consulting Services Agreement; (j) each shareholder of the Company shall have executed and delivered a Shareholder Agreement; (k) each shareholder of the Company shall have executed and delivered an Irrevocable Proxy to Acquiror within five (5) business days of the date of this Agreement; (l) The Company shall have delivered copies of the executed Master Agreement and runtime License Agreement it has entered into with Oracle; and (m) The Company shall have delivered (i) a written waiver of Xxxxx Xxxxxxxx waiving his right to options to purchase 20,000 shares of Company Common Stock and confirming that the total number of shares of Company Common Stock with respect to which he holds options is 51,250, and (ii) a certified copy of resolutions of the Company's Board of Directors confirming Xxxxx Xxxxxxxx'x option(s) to purchase a maximum of 51,250 shares of Company Common Stock.

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are Transfer of the Assets and the assumption of the Assumed Contracts is subject to the satisfaction (or written waiver by Acquiror) of each of the following further conditions: (ia) the Company Seller shall have performed and complied with in all material respects all of its obligations hereunder and covenants required to be performed or complied with by it under this Agreement at or prior to the Effective Time, (ii) (A) the representations Closing Date and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer an executive officer of the Company General Partner on behalf of Seller to the foregoing effect; (b) the Company representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant to this Agreement shall be true in all material respects at and as of the Closing Date as if made at and as of such time (other than inaccuracies that in the aggregate would not have a Material Adverse Effect and other than representations and warranties made as of a specific time or date which shall have obtained been true at and as of such time or made date) and Acquiror shall have received a certificate signed by an executive officer of Seller on behalf of Seller to the foregoing effect; and (c) Any waiting period pursuant to the HSR Act shall have expired or been waived; (d) The LDEQ and/or EPA shall have approved the transfer of all consentsthe Permits from Seller to Acquiror or, approvalsin lieu thereof, actions, orders, authorizations, registrations, declarations, announcements issued new Permits upon substantially the same terms and filings contemplated by Section 4.3 which if not obtained or made conditions to Acquiror; (ie) would render consummation The Addis Plant shall be in substantially the same condition that it is in as of the Merger illegal or date hereof, reasonable wear and tear expected; and (iif) would Acquiror shall be reasonably likely satisfied, in its reasonable discretion, with the results of the Environmental Assessment of the Addis Plant conducted by Acquiror pursuant to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this Section 6.6 hereof. This condition shall be deemed satisfied if unless Acquiror notifies Seller, in writing, that it is not satisfied with the failure results of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or such Environmental Assessment and provide Seller with a willful breach by Holding or Acquiror of any representation or warranty contained in any copy of the agreements related to the Financing; (c) the funding contemplated Environmental Assessment no later than December 14, 2001. If Acquiror notifies Seller by the Commitment Letters shall have been obtained on substantially the terms date set forth herein, then, unless both Seller and Acquiror have agreed in writing to a mutually acceptable solution, this Agreement shall terminate, the Commitment Letters or the funding Xxxxxxx Money Deposit will be returned to Acquiror, and neither party will have any further rights of the alternative financing contemplated by obligations hereunder in accordance with Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained9.2.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) (i) the Senior Subordinated Notes Proceeds shall have been released to the Acquiror from the escrow account into which they were deposited in connection with the closing of the offering of the Acquiror Senior Subordinated Notes, and (ii) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.. ARTICLE 10

Conditions to the Obligations of Acquiror. The obligations of Parent and Acquiror to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.2, Section 4.5, Section 4.6(b) and Section 4.15 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except, with respect to Section 4.5, for de minimus deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), and (BC) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Acquiror Parent shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company there shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made be pending (i) would render any action or proceeding by any Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), before any court or Governmental Entity that has a reasonable probability of success seeking (x) to make illegal or to restrain or prohibit the consummation of the Merger illegal or the other transactions contemplated hereby or by the Ancillary Agreements or seeking to obtain material damages, (y) to restrain or prohibit Parent's (including its Affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries, or to compel Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (iiz) would be reasonably likely to haveimpose or confirm material limitations on the ability of Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Company Shares; (c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents Employment Agreement between the Acquiror and Xxxx X. Xxxxxxx shall be in full force and effect, and Xxxx X. Xxxxxxx shall be ready, willing and able, absent a Default by Parent or Acquiror of the holders Employment Agreement, to perform and provide his services in accordance with the terms and conditions of the Notes required by Section 8.10(a) shall have been obtained.his Employment Agreement;

Conditions to the Obligations of Acquiror. The obligations of Acquiror ----------------------------------------- to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of Parent and Acquiror to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.2, Section 4.5, Section 4.6(b) and Section 4.15 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except, with respect to Section 4.5, for de minimus deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), and (BC) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Acquiror Parent shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company there shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made be pending (i) would render any action or proceeding by any Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), before any court or Governmental Entity that has a reasonable probability of success seeking (x) to make illegal or to restrain or prohibit the consummation of the Merger illegal or the other transactions contemplated hereby or seeking to obtain material damages, (y) to restrain or prohibit Parent’s (including its Affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (iiz) would to impose or confirm material limitations on the ability of Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Company Shares; provided, however, that any such action or proceeding shall not be reasonably likely the basis for the failure of the condition set forth in this Section 9.3(b) to havebe satisfied if: (a) the parties to such action or proceeding have entered into a memorandum of understanding or other agreement (approved by Parent and the Company, which approvals shall not be unreasonably withheld) with respect to the settlement of such action or proceeding, (b) the final date by which the court requires that the members of the class or putative class of shareholders that is covered by the memorandum of understanding or other agreement (the “Class Shareholders”) complete their election to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding has passed, (c) the number of Company Shares beneficially owned by the Class Shareholders who have been permitted by the court to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding does not exceed the number equal to 10% of the number of Company Shares outstanding on the date hereof and (d) final approval by the court under Rule 23 of the Federal Rules of Civil Procedure (or, in the case of a state court, equivalent state rule) has been received; and (c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents financings and related transactions (including the sources and uses of funds) contemplated by the Bank Commitment Letter (or in any Substitute Financing, if applicable), including the repayment of the holders Company’s and its Subsidiaries’ indebtedness as contemplated therein, and the release of the Notes required by Section 8.10(a) any related liens shall have been obtainedconsummated on terms reasonably acceptable to Acquiror; provided, however, that the terms of the Bank Commitment Letter are hereby deemed to be acceptable to Acquiror.

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are Transfer of the Stock is subject to the satisfaction (or written waiver by Acquiror) of each of the following further conditions: (ia) the Company Seller shall have performed and complied with in all material respects all of its obligations hereunder and covenants, required to be performed or complied with by it under this Agreement at or prior to the Effective Time, (ii) (A) the representations Closing Date and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made as of such time, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer an executive officer of the Company Seller on behalf of Seller to the foregoing effect; (b) the Company representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto shall be true in all material respects at and as of the Closing Date as if made at and as of such time (other than inaccuracies that in the aggregate would not have a Closing Condition Material Adverse Effect and other than representations and warranties made as of a specific time or date which shall have obtained been true at and as of such time or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financingdate); (c) Each of the funding contemplated by the Commitment Letters following shall have been obtained delivered to Acquiror at the Closing: (i) the Noncompetition Agreement dated the Closing Date and duly executed by an authorized officer of Seller; (ii) copies of resolutions of the Board of Directors of Seller authorizing the sale of the Stock pursuant to this Agreement and copies of all resolutions of Seller's Board of Directors authorizing this Agreement, the transactions contemplated hereby or otherwise relating to this Agreement and the transactions contemplated hereby, certified by the Secretary (or an Assistant Secretary) of Seller as being in full force and effect on substantially the terms set forth Closing Date; (iii) stock certificates representing all of the outstanding capital stock of FCE Ltd., registered in the Commitment Letters or the funding name of the alternative financing contemplated by Section 7.7 shall have been obtainedFCE, with each certificate being free and clear of any Liens; and (iv) an opinion, dated the Closing Date, of Jonex, Day, Reavxx & Xogux, xx customary form and with customary assumptions and qualifications, to the effect that (i) the execution, delivery and performance by Seller of this Agreement has been duly authorized, (ii) this Agreement has been duly executed and delivered by Seller and (iii) this Agreement would constitute a valid and binding obligation of Seller enforceable against Seller in accordance with its terms if this Agreement were governed by the internal substantive laws of the State of Texas (without application of the Texas rules and principles of conflicts of laws). (d) the consents of the holders of the Notes required by Section 8.10(a) Seller shall have been obtaineddelivered to Acquiror at Closing the Stock free and clear of all Liens and encumbrances with the certificate or certificates evidencing the Stock duly endorsed; and (e) Seller shall have delivered to Acquiror a title insurance commitment with respect to each parcel of Owned Real Property.

Conditions to the Obligations of Acquiror. The obligations of the Acquiror to consummate effect the Merger are transactions contemplated hereby shall be subject to the satisfaction of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at satisfaction, on or prior to before the Effective Time, of each and every one of the following conditions, unless waived, in whole or in part, by Acquiror for purposes of consummating such transaction. (iia) (A) the The representations and warranties of the Company contained in this Agreement that are qualified by reference to a and the Company Material Adverse Effect Shareholders set forth herein shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when on the Effective Time with the same force and effect as if they had been made on the Effective Time; (b) The Company shall have performed and at complied with all agreements, obligations, covenants and conditions required by this Agreement to be performed or complied with by the Company on or prior to the Effective Time; (c) The Acquiror shall have received a certificate, dated the Effective Time and signed by the president of the Company to the effect set forth in Section 6.2(a) and 6.2(b) for the purpose of verifying the accuracy of such representations and warranties as of the time of Effective Time and the Effective Time, as if made as performance and satisfaction of such time, covenants and conditions (iiithe "Company Bring Down Certificate"); (d) Acquiror shall have received a certificate signed by of the Chief Executive Officer or Chief Financial Officer Secretary of State of California as to the existence and good standing of the Company dated within 30 days of the Effective Time and certificates of the appropriate governmental authorities of each state in which the Company is qualified or authorized to transact business as to the foregoing effect;good standing and qualification or authorization of the Company each dated within 30 days of the Effective Time (collectively, the "Company Good Standing Certificates"). (be) the Company shall have obtained No action, suit or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated proceeding by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal before any court or (ii) would be reasonably likely to have, individually any governmental or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters regulatory authority shall have been obtained on substantially the terms set forth in the Commitment Letters commenced and no investigation by any governmental or the funding of the alternative financing contemplated by Section 7.7 regulatory authority shall have been obtained; and (d) commenced seeking to restrain, prevent or challenge the consents of transactions contemplated hereby or seeking judgments against the holders of the Notes required by Section 8.10(a) shall have been obtainedCompany.

Conditions to the Obligations of Acquiror. The obligations of Parent and Acquiror to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.2, Section 4.5, Section 4.6(b) and Section 4.15 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except, with respect to Section 4.5, for de minimus deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), and (BC) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Acquiror Parent shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company there shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made be pending (i) would render any action or proceeding by any Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), before any court or Governmental Entity that has a reasonable probability of success seeking (x) to make illegal or to restrain or prohibit the consummation of the Merger illegal or the other transactions contemplated hereby or seeking to obtain material damages, (y) to restrain or prohibit Parent’s (including its Affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries, or to compel Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (iiz) would to impose or confirm material limitations on the ability of Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Company Shares; provided, however, that any such action or proceeding shall not be reasonably likely the basis for the failure of the condition set forth in this Section 9.3(b) to havebe satisfied if: (a) the parties to such action or proceeding have entered into a memorandum of understanding or other agreement (approved by Parent and the Company, which approvals shall not be unreasonably withheld) with respect to the settlement of such action or proceeding, (b) the final date by which the court requires that the members of the class or putative class of shareholders that is covered by the memorandum of understanding or other agreement (the “Class Shareholders”) complete their election to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding has passed, (c) the number of Company Shares beneficially owned by the Class Shareholders who have been permitted by the court to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding does not exceed the number equal to 10% of the number of Company Shares outstanding on the date hereof and (d) final approval by the court under Rule 23 of the Federal Rules of Civil Procedure (or, in the case of a state court, equivalent state rule) has been received; and (c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents financings and related transactions (including the sources and uses of funds) contemplated by the Bank Commitment Letter (or in any Substitute Financing, if applicable), including the repayment of the holders Company’s and its Subsidiaries’ indebtedness as contemplated therein, and the release of the Notes required by Section 8.10(a) any related liens shall have been obtainedconsummated on terms reasonably acceptable to Acquiror; provided, however, that the terms of the Bank Commitment Letter are hereby deemed to be acceptable to Acquiror.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger are subject to the satisfaction of the following further conditions: (i) the The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Timetime of the filing of the Certificate of Merger, as if made at and as of such time, time and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of filing of the Effective TimeCertificate of Merger, as if made as of such time, except for such inaccuracies which would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, and (iii) Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect;; and (b) Acquiror shall have received an opinion of Dewex Xxxxxxxxxx XXX in form and substance reasonably satisfactory to Acquiror, dated the date of the filing of the Certificate of Merger, and based upon reasonably requested letters from Acquiror and the Company and certain facts and assumptions set forth in the opinion to the effect that, for federal income tax purposes, the Merger will be treated as a 368 Reorganization, and that each of Acquiror and the Company will be a party to the reorganization within the meaning of Section 368 of the Code; (c) The Company shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) (assuming the Effective Time had occurred) would be reasonably likely to have, individually have an Acquiror Material Adverse Effect or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing;and (cd) the The funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) 7.15 shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of Closing Date with the Effective Time, same force and effect as if made on the Closing Date (provided that any such representation and warranty made as of a specific date shall be true and correct as of such timespecific date), and (iii) the Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer chief executive officer of the Company to the foregoing effect; and (b) there shall not be pending any suit, proceeding, or investigation (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated herein, (ii) relating to the Merger and seeking to obtain from the Acquiror or Merger Sub any damages that may be material to Acquiror, or (iii) seeking to prohibit or limit in any material respect Acquiror’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; (bc) the Company shall have obtained or made received all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements waivers and filings contemplated by Section 4.3 which if not obtained or made (i) would render approvals required in connection with the consummation of the Merger illegal transactions contemplated hereby in connection with the agreements, contracts, licenses and leases set forth as requiring consent in the Company Letter, except those consents, waivers, or (ii) approvals the failure to obtain of which would be reasonably likely to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if Effect on the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the FinancingCompany; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents of the holders of the Notes required by Section 8.10(a) shall have been obtained.

Conditions to the Obligations of Acquiror. The obligations of Acquiror to consummate the Merger Merger, or to permit the consummation of the Merger, are subject to the satisfaction or, if permitted by applicable Law, waiver of the following further conditions: (ia) the Company shall have performed in all material respects all each of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are is qualified by reference to a Company Material Adverse Effect materiality shall be true true, complete and correct when made and at on and as of the Effective Time, Time as if made at and as of such time, and the Effective Time (B) all other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct as of such certain date) and each of the Company representations and warranties that is not so qualified shall have been true be true, complete and correct in all material respects when made and at on and as of the time of the Effective Time, Time as if made on and as of such timedate (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct in all material respects as of such certain date), in each case except as contemplated or permitted by this Agreement, and (iii) Acquiror shall have received a certificate signed by of the Chief Executive Officer Chairman or President and Chief Financial Officer of the Company to the foregoing such effect; (b) the Company shall have obtained performed or made complied in all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements material respects with all agreements and filings contemplated covenants required by Section 4.3 which if not obtained this Agreement to be performed or made (i) would render consummation complied with by it on or prior to the Effective Time and Acquiror shall have received a certificate of the Merger illegal Chairman or (ii) would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any President and Chief Financial Officer of the agreements related Company to the Financing;that effect; 42 (c) the funding contemplated by the Commitment Letters no Company Material Adverse Effect shall have been obtained on substantially occurred since the terms set forth in the Commitment Letters or the funding date of the alternative financing contemplated by Section 7.7 shall have been obtained; andthis Agreement; (d) the consents Escrow Agent and the Shareholders' Agent shall have executed and delivered the Escrow Agreement; (e) there shall not be pending any action, proceeding, claim or counterclaim which seeks to or would, or any order, decree or injunction (whether preliminary, final or appealable) which would, require Acquiror to hold separate or dispose of any of the holders stock or assets of the Notes required by Section 8.10(aCompany or impose material limitations on the ability of Acquiror to control in any material respect the business, assets or operations of either Acquiror or the Company; (f) Acquiror shall have been obtainedreceived a legal opinion from Xxxxxx & Xxxxx LLP, legal counsel to the Company, in substantially the form attached hereto as Exhibit J; (g) Acquiror and the Company shall have received, each in form and substance reasonably satisfactory to Acquiror, all authorizations, consents, orders and approvals of all Governmental Entities and officials and all third party consents set forth on Schedule 6 hereto; (h) all of the employees of the Company set forth under Section A on Schedule 7 hereto and 80% of the employees of the Company set forth under Section B on Schedule 7 hereto shall be employed by the Company and shall not have given any notice that they will not continue to be employed by Acquiror following the Effective Time; (i) Acquiror and Xxxxx Xxxxxxxx shall have executed and delivered the Consulting Agreement; (j) Acquiror and each of Xxxx Xxxxx Xxxxx, Xxxxxxxx Xxxxxx and Xxxxx Xxxxxxxxxxx shall have entered into a Retention Agreement; and (k) each shareholder of the Company shall have executed and delivered either a Shareholder Agreement or a Shareholder Representation Agreement.

Conditions to the Obligations of Acquiror. The obligations of Parent and Acquiror to consummate the Merger are subject to the satisfaction or waiver of the following further conditions:conditions (provided that the parties hereto agree that any events that are known to Parent or Acquiror as of the date hereof, including without limitation anything disclosed in the Company Disclosure Schedule, and which have caused any of the representations and warranties of the Company to not be true and correct as of the date hereof, if any, shall be disregarded in determining the satisfaction of any conditions set forth in this Section 9.3 that relate to such representations and warranties): (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.2, Section 4.5, Section 4.6(b) and Section 4.15 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except, with respect to Section 4.5, for de minimus deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), and (BC) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of the Effective Time, as if made at and as of such timetime (provided that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Acquiror Parent shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company to the foregoing effect; (b) the Company there shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Section 4.3 which if not obtained or made be pending (i) would render any action or proceeding by any Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), before any court or Governmental Entity that has a reasonable probability of success seeking (x) to make illegal or to restrain or prohibit the consummation of the Merger illegal or the other transactions contemplated hereby or by the Ancillary Agreements or seeking to obtain material damages, (y) to restrain or prohibit Parent's (including its Affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries, or to compel Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (iiz) would to impose or confirm material limitations on the ability of Parent or any of its Affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Company Shares; provided, however, that any such action or proceeding shall not be reasonably likely the basis for the failure of the condition set forth in this Section 9.3(b) to havebe satisfied if: (a) the parties to such action or proceeding have entered into a memorandum of understanding (approved by Parent and the Company, which approvals shall not be unreasonably withheld) with respect to the settlement of such action or proceeding, (b) the final date by which the court requires that the members of the class or putative class of shareholders that is covered by the memorandum of understanding (the "Class Shareholders") complete their election to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding has passed and (c) the number of Company Shares beneficially owned by the Class Shareholders who have been permitted by the court to opt out of any settlement of such action or proceeding that is the subject of the memorandum of understanding does not exceed the number equal to 10% of the number of Company Shares outstanding on the date hereof; (c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the Financing; (c) the funding contemplated by the Commitment Letters shall have been obtained on substantially the terms set forth in the Commitment Letters or the funding of the alternative financing contemplated by Section 7.7 shall have been obtained; and (d) the consents Employment Agreement between the Acquiror and Xxxx X. Xxxxxxx shall be in full force and effect, and Xxxx X. Xxxxxxx shall be ready, willing and able, absent a Default by Parent or Acquiror of the holders Employment Agreement, to perform and provide his services in accordance with the terms and conditions of the Notes required by Section 8.10(a) shall have been obtained.his Employment Agreement;

Conditions to the Obligations of Acquiror. The obligations obligation of Acquiror to consummate the Merger are is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to a Company Material Adverse Effect shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time, and (B) all other representations and warranties of the Company shall have been true and correct in all material respects when made and at and as of the time of Closing Date with the Effective Time, same force and effect as if made on the Closing Date (provided that any such representation and warranty made as of a specific date shall be true and correct as of such timespecific date), and (iii) the Acquiror shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer chief executive officer of the Company to the foregoing effect; and (b) there shall not be pending any suit, proceeding, or investigation (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated herein, (ii) relating to the Merger and seeking to obtain from the Acquiror or Merger Sub any damages that may be material to Acquiror, or (iii) seeking to prohibit or limit in any material respect Acquiror’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; (bc) the Company shall have obtained or made received all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements waivers and filings contemplated by Section 4.3 which if not obtained or made (i) would render approvals required in connection with the consummation of the Merger illegal transactions contemplated hereby in connection with the agreements, contracts, licenses and leases set forth as requiring consent in the Company Letter, except those consents, waivers, or (ii) approvals the failure to obtain of which would be reasonably likely to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, however, that this condition shall be deemed satisfied if Effect on the failure of this condition is due to willful breach by Holding or Acquiror of any covenant or willful failure to perform any agreement or a willful breach by Holding or Acquiror of any representation or warranty contained in any of the agreements related to the FinancingCompany; (cd) there shall not have occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company; (e) Acquiror shall have successfully completed a financing (of equity, debt or a combination thereof,) or series of related financings of not less than gross proceeds of $35,000,000 (the “Required Financing”); (f) the funding contemplated by the Commitment Letters Company shall have been obtained on substantially received from Capitalink, L.C. an opinion as to the terms set forth in fairness to the Commitment Letters or the funding Company’s shareholders from a financial point of view of the alternative financing consideration to be offered to the Company in connection with the transactions contemplated by Section 7.7 shall have been obtainedhereby; and (dg) the consents of the holders of the Notes required by Section 8.10(a) Acquiror shall have been obtainedreceived an opinion of Akerman Senterfitt, counsel for the Company, in form and substance reasonably satisfactory to the Acquiror.