Common use of Conditions to the Obligations of Parent and Merger Sub Clause in Contracts

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver in writing of the following additional conditions: (a) The representations and warranties of the Company contained in this Agreement that (i) are not made as of a specific date shall be true and correct as of the date of this Agreement and as of the Closing, as though made on and as of the Closing, and (ii) are made as of a specific date shall be true and correct as of such date, in each case except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties (other than the representation in clause (b) of Section 4.08) does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Merger Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Merger Effective Time, signed by an officer of the Company, and certifying as to the satisfaction by the Company, of the applicable conditions specified in Sections 8.02(a) and 8.02(b). (d) The Company shall have furnished to Parent a certification in accordance with Treas. Reg. § 1.1445-2(c)(3) certifying that stock in the Company is not a United States real property interest because the Company is not and has not been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, substantially in the form attached hereto as Exhibit C.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or (to the extent permitted by Law) waiver in writing by Parent at or prior to the Closing of the following additional further conditions: (a) The each of the representations and warranties of the Company contained in this Agreement that (i) are not made as of a specific date set forth in Section 4.1 (first sentence only), Section 4.2, Section 4.3, Section 4.4 and Section 4.11 (first sentence only) (the “Fundamental Company Representations”) shall be true and correct in all material respects at and as of the date of this Agreement hereof and as of the Closing, as though Closing Date (except to the extent expressly made on and as of the Closingan earlier date, in which case as of such date) and (ii) are made set forth in Article IV (other than the Fundamental Company Representations), without giving effect to any qualifications as of a specific date to materiality or Company Material Adverse Effect contained therein, shall be true and correct at and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date), except in each the case except where the failure of clause (ii) above, for such representations or warranties failures to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties (other than the representation in clause (b) of Section 4.08) does not have and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect.; (b) The the Company shall have performed, performed in all material respects, respects all obligations and complied with, in all material respects, its agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement on at or prior to the Merger Effective Time.Closing; (c) The the Company shall have delivered to Parent a certificate, dated the date of the Merger Effective Time, Closing Date and signed by an officer of the Company, and certifying as to the satisfaction by effect that the Company, of the applicable conditions specified set forth in Sections 8.02(aSection 7.2(a) and 8.02(b).Section 7.2(b) have been satisfied; (d) The the Company shall have furnished to Parent consummated the sale of the Sale Property and entered into a certification lease-back arrangement on the Lease-Back Terms in accordance with Treas. Reg. § 1.1445-2(c)(3Section 6.22; and (e) certifying that stock the Pathfinder Consent and Pathfinder SPA continue to be in full force and effect, all conditions set forth in the Company is not a United States real property interest because Pathfinder SPA have been satisfied and the Company is and Pathfinder shall consummate the transactions contemplated by the Pathfinder SPA concurrently with the Closing; and (f) from the date of this Agreement there shall not and has not been have occurred a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, substantially in the form attached hereto as Exhibit C.Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger are shall be subject to the satisfaction or waiver in writing fulfillment of each of the following additional conditions, any one or more of which may be waived in writing by Parent: (a) No Applicable Law or Order shall have been enacted, entered, promulgated or enforced by any Government Authority, which remains in effect and which prohibits the consummation of the Merger or otherwise makes the Merger illegal. (b) The representations and warranties of the Company contained set forth in this Agreement that (i) are not made as of a specific date Article III shall be true and correct (disregarding all qualifications or limitations as to “materiality” and words of similar import set forth therein) in all material respects at and as of the date of this Agreement and as of the Closing, Effective Time as though if made on at and as of the ClosingEffective Time (or, in the case of those representations and (ii) warranties that are made as of a specific particular date shall be true and correct or period, as of such date, in each case except where the failure of such representations date or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties (other than the representation in clause (b) of Section 4.08) does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Merger Effective Timeperiod). (c) The Company shall have delivered performed and complied in all material respects with all agreements and obligations required by this Agreement to Parent a certificate, dated the date of the Merger Effective Time, signed be performed or complied with by an officer of the Company, and certifying as it on or prior to the satisfaction by the Company, of the applicable conditions specified in Sections 8.02(a) and 8.02(b)Closing Date. (d) The Company shall have furnished to Parent a certification certificate executed by its principal executive officer to evidence compliance with the conditions set forth in accordance Section 6.2(b) and Section 6.2(c) of this Agreement (the “CEO Certificate”). (e) The Company shall have furnished to Parent a certificate, dated as of the Closing Date, signed by the Secretary of the Company certifying that: (i) attached thereto are true and correct copies of the Company Constituent Documents, and any amendments thereto, as in effect immediately prior to the Effective Time; (ii) attached thereto are corporate good standing certificates with Treas. Reg. § 1.1445-2(c)(3) certifying that stock respect to the Company from the applicable authorities in the State of Delaware and any other jurisdictions in which the Company is not qualified to do business, dated as of a United States real property interest because recent date prior to the Closing Date; (iii) attached thereto are true and correct copies of resolutions duly adopted by the board of directors and stockholders of the Company is not authorizing and has not been a United States real property holding corporation (as defined in Section 897(c)(2) approving the execution, delivery and performance of this Agreement and the consummation of the Codetransactions contemplated hereby, including the Merger; and (iv) during there are no proceedings for the applicable period specified in Section 897(c)(1)(A)(ii) dissolution or liquidation of the CodeCompany. (f) The Company shall have furnished to Parent the Final Merger Consideration Schedule, which shall be certified as true and correct by the Chief Executive Officer of the Company (it being understood that, pursuant to Section 5.10(b), the Final Merger Consideration Schedule is to be delivered to Parent no later than the close of business on the second (2nd) business day prior to the Closing Date). (g) (i) There shall remain employed by the Company not less than 90% of the Persons employed by the Company and (ii) each of the individuals listed on Schedule 6.2(g)(ii) (each a “Transition Consultant”) shall have executed and delivered to the Company or Parent a transition services agreement containing a general release in favor of Parent, the Company and the Surviving Corporation, in each case, substantially in the form attached hereto as of Exhibit C.I (each, a “Transition Services Agreement”). (h) The Required Stockholder Approvals shall have been obtained via the receipt of sufficient duly executed and completed Written Consent, Release and Joinders from the holders of Company Capital Stock (it being understood that if any Key Stockholder fails to deliver a duly executed Written Consent, Release and Joinder to Parent within twenty four (24) hours after the execution of this Agreement, Parent will have the right to terminate this Agreement pursuant to Section 7.1(f)). (i) The Company shall have delivered to Parent the Payoff Letters and the Fee Statement Letters; (j) The Stockholders’ Representative shall have delivered to Parent a copy of the Escrow Agreement duly executed by the Stockholders’ Representative. (k) The Company shall have furnished to Parent a certificate, duly completed and executed by its principal executive officer pursuant to Sections 1.897-2(h) and 1.1445-2(c) of the Treasury Regulations, certifying that the shares of Company Capital Stock are not “United States real property interests” within the meaning of Section 897(c) of the Code.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction at or waiver in writing prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law: (a) The Each of the representations and warranties of the Company contained in this Agreement that (i) are not made as of a specific date herein, shall be true and correct as of the date of this Agreement in all material respects, in each case, when made and on and as of the Closing, Closing Date as though made on and as of the Closing, Closing Date (except for representations and (ii) are warranties made as of a specific date specified date, which shall be true and correct in all material respects, as the case may be, as of such the specified date), in each case except where the any such failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties (other than the representation in clause (b) of Section 4.08) does not have and would not reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect. (b) The Company shall have performed, performed or complied in all material respects, respects with all obligations and complied with, in all material respects, its agreements and covenants conditions contained herein required to be performed or complied with by it under this Agreement on or prior to or at the Merger Effective Timetime of the Closing. (c) The Company shall have delivered to Parent (i) a certificate, dated the date of the Merger Effective TimeClosing, signed by an officer of the Company, and certifying as to the satisfaction by the Company, of the applicable conditions specified in Sections 8.02(a7.2(a) and 8.02(b7.2(b), and (ii) a certificate of good standing for the Company in the State of Delaware and of its Subsidiaries (where applicable) in their jurisdiction of incorporation, dated as of a date reasonably close to the Closing Date. (d) Parent shall have received counterparts to the Escrow Agreement executed by the Principal Shareholders and the Escrow Agent. (e) The Company shall have furnished obtained, or caused to be obtained, each consent described on Schedule 7.2(e). (f) The Company shall have delivered to Parent a certification in accordance with Treas. Reg. § 1.1445non-2(c)(3) certifying that stock in the Company is not a United States real property interest because the Company is not compete and has not been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, non-solicitation agreement substantially in the form attached hereto as of Exhibit B executed by each of the Principal Stockholders. (g) Xxxxxx X. Xxxxxxxx shall have entered into an employment arrangement with the Company or Parent substantially in the form of Exhibit C. (h) There shall not have been a Company Material Adverse Effect. (i) The number of shares of Company Common Stock held by Dissenting Stockholders shall not comprise more than 1% of the total outstanding shares of Company Common Stock. (j) A pay off letter with respect to the Company’s loans from Citizens Bank and a release with respect to the Company’s loan from Xxxxxx X. Xxxxxxxx shall have been received by the Company, each in form and substance reasonably acceptable to Parent.