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

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall will be further subject to the satisfaction or written waiver at or prior to the Effective Time of each of the following conditions: (a) (i) the representations and warranties Each representation or warranty of the Company set forth contained in Sections 3.3(aSection 3.1(a), 3.4 Section 3.3, Section 3.9, Section 3.23 and 3.18 Section 3.24 of this Agreement shall be true and correct in all respectsmaterial respects as of the Closing Date with the same force and effect as if made on and as of such date, except for any representation and warranty that is expressly made as of a specific date or time (which needs only be true and correct in all respects as of such date or time), (ii) the representations and warranties each representation or warranty of the Company set forth in this Agreement other than those specified contained in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) first sentence of Section 3.2(a), the representations and warranties first sentence of the Company set forth in this Agreement other than those specified in the foregoing clauses (iSection 3.2(b) and (iiSection 3.2(c) that are not so qualified shall be true and correct in all material respectsrespects (except for inaccuracies that would not, individually or in each casethe aggregate, reasonably be expected to cause the aggregate consideration to be paid by Parent and Merger Sub under this Agreement to increase by more than $5,000,000) as of the date of this Agreement Closing Date with the same force and effect as of the Effective Time as though if made on and as of such date (unless date, except for any such representation or and warranty that is expressly made only as of a specific datedate or time (which needs only be true and correct in all respects as of such date or time) and (iii) all other representations and warranties of the Company contained in this Agreement (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein, other than the representations set forth in which event such representation and warranty Section 3.11(b), the first sentence of Section 3.31 or in the term “Company Material Contract”) shall be true and correct in all respects as of the Closing Date with the same force and effect as if made on and as of such date, except for any representation and warranty that is expressly made as of a specific date or time (which needs only be true and correct in all material respects, as the case may be, respects as of such specified datedate or time), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, as has not had, had and would not reasonably be expected to have, individually or in the aggregate with all other such failures to be true or correct, a Company Material Adverse Effect;. (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required covenants to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing. (c) Since the date of this Agreement, there shall not be instituted have occurred any change, event, development, condition, occurrence or pending any actioneffect or state of facts that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted has had or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Company Material Adverse Effect;. (d) Parent Merger Sub shall have received a certificate of the Company, executed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions set forth in Section 7.2(asubsections (a) and (b) of this Section 7.2(b) 6.2 have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall will be further subject to the satisfaction or written waiver (where permissible) at or prior to the Effective Time of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.1, Section 3.2(d), 3.4 Section 3.3, Section 3.9, Section 3.29 and 3.18 Section 3.30 of this Agreement shall be true and correct in all respectsmaterial respects as of the date of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date, except for any representation and warranty that is expressly made as of a specific date or time (which needs only be true and correct in all material respects as of such date or time), (ii) the representations and warranties of the Company set forth in this Agreement other than those specified contained in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) first sentence of Section 3.2(a), the representations and warranties first sentence of the Company set forth in this Agreement other than those specified in the foregoing clauses (iSection 3.2(b), Section 3.2(c), Section 3.2(e) and (ii) that are not so qualified the first and second sentences of Section 3.33 shall be true and correct in all material respects, in each case, respects (except for de minimis deviations) as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as though if made on and as of such date, except for any representation and warranty that is expressly made as of a specific date or time (which needs only be true and correct in all respects (except for de minimis deviations) as of such date or time) and (iii) all other representations and warranties of the Company contained in this Agreement (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein, other than the representations set forth in Section 3.11(b) or in the term “Company Material Contract”) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date (unless other than any such representation or and warranty that is expressly made only as of a specific datedate or time, in which event such representation and warranty shall needs only be true and correct or true and correct in all material respects, as the case may be, respects as of such specified datedate or time), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, correct has not had, had and would not reasonably be expected to have, individually or in the aggregate with all other such failures to be true or correct, a Company Material Adverse Effect;. (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required covenants to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing, or any breach or failure to do so shall have been cured. (c) Since the date of this Agreement, there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the have occurred a Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;. (d) Parent shall have received a certificate of the Company, executed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions set forth in Section 7.2(asubsections (a) and (b) of this Section 7.2(b) 6.2 have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction (or waiver at waiver, if permissible under applicable Law) on or prior to the Effective Time Closing Date of the following conditions: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(athe Agreement (other than in the first sentence of Section 3.1(a), 3.4 the second and 3.18 last sentence of this Agreement Section 3.2(a) and Section 3.26) shall be true and correct (individually or in all respectsthe aggregate), at and as of the Closing Date as if made on such date (other than those representations and warranties that address matters only as of a particular date which are true and correct as of such date), except where failure to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) would not reasonably be expected to have a Company Material Adverse Effect, and (ii) the representations and warranties of the Company set forth in this Agreement other than those specified the first sentence of Section 3.1(a), the second and last sentence of Section 3.2(a) and Section 3.26 (except, in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties case of the Company set forth in this Agreement other than those specified in second sentence of Section 3.2(a), for any de minimis variances and any variances resulting from the foregoing clauses (iexercise of Options after the date hereof) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects at and as of the Effective Time Closing Date as though if made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the The Company shall have performed in all material respects the all obligations, and complied in all material respects with the agreements and covenants, or covenants required by this Agreement to be performed by, or complied with by, by it under this Agreement at or prior to the Effective TimeClosing Date; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company, certifying Company to the effect that the conditions set forth in Section 7.2(aSections 6.2(a) and Section 7.2(b(b) have been satisfied; (ed) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent The Company shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) paid the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been releasedContingent Dividend; and (ge) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party Except as set forth on Section 3.6(a) of the amount Company Disclosure Schedule, from and after the date of the indebtedness allocable this Agreement, there shall not have occurred any event, change, or circumstance that has had or would be reasonably likely to such partyhave a Company Material Adverse Effect.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01 (Organization and Qualification of the Company), 3.4 Section 3.02(a) (Authority), Section 3.04 (Capitalization), and 3.18 Section 3.21 (Brokers), the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause Section 3.01 (i) that are qualified as to materiality or Material Adverse Effect shall be true Organization and correct and (iii) the representations and warranties Qualification of the Company set forth in this Agreement other than those specified in the foregoing clauses Company), Section 3.02(a) (iAuthority), Section 3.04 (Capitalization) and Section 3.21 (iiBrokers) that are not so qualified shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.03 of the Company Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted or pending have occurred any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating Material Adverse Effect with respect to the transactions contemplated by Company, nor shall any event or events have occurred that, individually or in the Mergeraggregate, (ii) seeking to restrainwith or without the lapse of time, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse EffectEffect with respect to the Company. (f) The Company shall have delivered to Parent the following: (i) resignations of the directors and officers of the Company pursuant to Section 5.06; (dii) Parent shall have received the Audited Financial Statements pursuant to Section 5.15; (iii) a certificate of an executive certificate, dated the Closing Date and signed by a duly authorized officer of the Company, certifying that each of the conditions set forth in Section 7.2(a7.02(a) and Section 7.2(b7.02(b) have been satisfied; (eiv) each a certificate of the Subordinated Debt Termination Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that (A) attached thereto are true and complete copies of (1) all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby and (2) resolutions of the Members approving the Merger and adopting this Agreement, and (B) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; (v) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are (A) true and complete copies of all required approvals and consents authorizing the execution, delivery and performance of the Tax Election and (B) copies of filings made in connection with the Tax Election; (vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying the names and signatures of the officers of the Company authorized to sign this Agreement, the Trademark License Ancillary Documents and the other documents to be delivered hereunder and thereunder; (vii) at least three (3) Business Days prior to the Closing, the Closing Transaction Expenses and Indebtedness Certificate, and, evidence that, immediately prior to Closing, of the payment to third parties by wire transfer of immediately available funds that amount of money due and owing from the Company to such third parties as Transaction Expenses or Indebtedness as set forth on the Closing Transaction Expenses and Indebtedness Certificate; (viii) a good standing certificate (or its equivalent) from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized; (ix) evidence reasonably satisfactory to Parent that the Company’s Working Capital as of the close of business on the day before the Closing Date is at least equal to $3,300,000 (the “Closing Working Capital”), taking into account the Company’s covenant in Section 5.11 of this Agreement, together with the Tax Receivable Termination Agreement calculation of the Closing Working Capital (the “Closing Working Capital Statement”), and a certificate of the Employment Agreement shall be President and Chief Executive Officer that the Closing Working Capital Statement was prepared in force accordance with GAAP, applied using the same accounting methods, practices, principles, policies and effect at procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Audited Financial Statements for the most recent fiscal year end as if such Closing Working Capital Statement was being prepared and audited as of a fiscal year end; (x) the Consideration Spreadsheet contemplated in Section 2.16; (xi) the FIRPTA Statement; and (xii) such other documents or instruments as Parent reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement. (g) Members of no more than 5% of the outstanding Membership Interests as of immediately prior to the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent aggregate, shall have received documentation reasonably satisfactory exercised, or remain entitled to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnershipexercise, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each statutory dissenters rights pursuant to Section 1705.41 of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance Ohio Act with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment respect to such party of the amount of the indebtedness allocable to such partyMembership Interests.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent's waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth Target contained in Sections 3.3(a)this Agreement, 3.4 the Ancillary Documents and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects, respects (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are case of any representation or warranty qualified as to by materiality or Material Adverse Effect shall be true and correct and (iiiEffect) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct or in all material respects, respects (in each case, the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the Company The Target shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Target, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Target shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.04(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement ) shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each caseexcept for any immaterial deviations), as of the date of this Agreement and as of the Effective Time Closing Date as though if made on at and as of such date time (unless any such representation or warranty is except for representations and warranties made only as of a specific specified date, in which event such representation and warranty shall be true and correct only as of the specified date); and (ii) each of the other representations and warranties of the Company contained in this Agreement and in any certificate or other writing delivered by the Company pursuant to this Agreement (disregarding all materiality or Company Material Adverse Effect qualifications and exceptions or any similar standard or qualification contained therein), shall be true and correct in all material respects, as the case may be, as of such the date of this Agreement and as of the Closing Date as if made at and as of that time (except for representations and warranties made only as of a specified date, which shall be true and correct as of the specified date), except where to the failure extent that all failures of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect (disregarding all materiality or Company Material Adverse Effect qualifications and exceptions or any similar standard or qualification contained therein), individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect;Effect or prevent, materially delay or materially impede the ability of the Company to timely consummate the Merger or the other transactions contemplated by this Agreement. (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, by or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied;. (ed) each The aggregate number of shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by holders who have exercised appraisal rights or provided notice of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling intention to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto exercise appraisal rights in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party provisions of Part 13 of the amount MBCA shall constitute less than ten percent (10%) of the indebtedness allocable to such partyshares of Common Stock outstanding as of the date of this Agreement, as set forth in Section 3.3(a)(i).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect complete the Merger shall be further are subject to the satisfaction following conditions (any or waiver all of which may be waived by Parent at or any time prior to the Effective Time of the following conditions:Time): (a) (i) the The representations and warranties of the Company (i) set forth in Sections 3.3(aSection 3.1(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respectsSection 3.1(b), (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (iSection 3.1(g) and Section 7.1 (iithe “Company Fundamental Representations”) that are not so qualified shall will be true and correct in all material respects, in each case, as of respects on the date of this Agreement and as of Closing Date with the Effective Time same effect as though made on and as of such that date (unless except that any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct that relates expressly to a specified date or a specified period need only to have been true and correct in all material respects, respects with regard to the specified date or period) and (ii) all representations and warranties of the Company other than the Company Fundamental Representations will be true and correct in all respects on the Closing Date with the same effect as though made on that date (except that any representation and warranty that relates expressly to a specified date or a specified period need only to have been true and correct with regard to the case may be, as of such specified datedate or period), except where the failure failures of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein), in the aggregate, has have not had, had and would not be reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;Effect on the Company, and the Company will have delivered to Parent a certificate dated the Closing Date and signed by an officer of the Company to that effect. (b) The Company will have fulfilled in all material respects all its obligations under this Agreement required to have been fulfilled on or before the Closing Date, and the Company will have delivered to Parent a certificate dated the Closing Date and signed by an officer of the Company to that effect. (c) No order issued by any court of competent jurisdiction or other Governmental Authority will be in force that invalidates this Agreement or restrains Parent or Merger Sub from completing the Merger. (d) Parent shall Since the date of this Agreement, no events have received occurred, or conditions that did not exist at the date of this Agreement come into being, that in aggregate have or have had a certificate of an executive officer of Material Adverse Effect on the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;. (e) each Parent’s stockholders will have approved the Parent Certificate Amendment and the issuance of Parent Stock in the Subordinated Debt Termination AgreementMerger as contemplated by this Agreement (together, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised “Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;Stockholder Approval). (f) Parent shall The Registration Statement will have received documentation reasonably satisfactory to it evidencing become effective under the Securities Act, no stop order suspending the effectiveness of the Registration Statement will be in effect and no proceedings for that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall purpose will have been paid, discharged initiated or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated threatened in writing by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; andSEC. (g) The shares of Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement Stock that all liens and security interests will constitute Merger Consideration will have been released upon payment to such party of authorized and approved for listing on the amount of the indebtedness allocable to such partyNYSE.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall be further are subject to the satisfaction or waiver satisfaction, at or prior to the Effective Time Closing, of the following conditions:conditions (which may be waived, in whole or in part, to the extent permitted by Law, by Parent): (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(a)this Agreement that are qualified by Company Material Adverse Effect shall be true and correct, 3.4 in each case at and 3.18 as of the date of this Agreement and at and as of the Closing as if made at and as of such time (other than any such representations and warranties that by their terms address matters only at and as of another specified time, in which case shall be true and correct in all respectsonly at and as of such time), (ii) the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (iSection 4.05(a)(i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, case at and as of the date of this Agreement and at and as of the Effective Time Closing as though if made on at and as of such date time (unless other than any such representation or warranty is made representations and warranties that by their terms address matters only at and as of a specific dateanother specified time, in which event such representation and warranty case shall be true and correct or true and correct in all material respects, as the case may be, respects only at and as of such specified datetime), except where (iii) the failure representations and warranties of the Company contained in Section 4.10(b) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of such time, and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all materiality qualifications contained therein, other than any such qualifications with respect to a list), in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of such time (other than any such representations and warranties referred that by their terms address matters only as of another specified time, in which case shall be true and correct (disregarding all materiality qualifications contained therein, other than any such qualifications with respect to a list) only at and as of such time), except, in the case of this clause (iii) iv), where the failure of such representations and warranties to be so true and correct, in the aggregate, correct has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;. (b) the The Company shall have performed in all material respects the obligations, all of its covenants and complied in all material respects with the agreements and covenants, obligations hereunder required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, Parent and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent Sub shall have received a certificate dated as of the Closing and signed by an executive officer of the Company, Company certifying that each of the conditions set forth in Section 7.2(a9.02(a) and Section 7.2(b9.02(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) other than the Fundamental Representations and the representations and warranties set forth in Section 3.22 (Tax Matters), the representations and warranties of the Company set forth contained in Sections 3.3(a)this Agreement, 3.4 the Ancillary Documents and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), and (ii) the representations Fundamental Representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses Section 3.22 (iTax Matters) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement; (c) no Action shall have been commenced against Parent, Merger Sub or the agreements Company that would prevent the Closing, and covenantsno injunction or restraining order shall have been issued by any Governmental Authority, required and be in effect, which restrains or prohibits any transaction contemplated hereby; (d) all approvals, consents and waivers that are listed on Section 3.3(c) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to be performed by, or complied with by, it under this Agreement Parent at or prior to the Effective TimeClosing; (ce) there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect; (df) Parent the Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.3(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent Persons holding no more than five percent (5%) of the outstanding Shares as of immediately prior to the Effective Time, in the aggregate, shall have received releases and acknowledgements from each party exercised, or remain entitled to exercise, statutory appraisal rights pursuant to Section 262 of the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment DGCL with respect to such party of the amount of the indebtedness allocable to such partyShares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to complete the Closing and effect the Merger shall be under ‎Article III of this Agreement are further subject to the satisfaction (or waiver at or prior to the Effective Time in writing by ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub) of the following conditionsconditions precedent on or before the Effective Time: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a‎4.1(c)(i)-‎(iii), 3.4 and 3.18 of this Agreement shall be true and correct (except for any de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in all respects, which case such representation and warranty shall be true and correct as of such earlier date); (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect Sections ‎4.1(a), Section ‎4.2 and Section ‎4.20 shall be true and correct as of the date of this Agreement, and as of the Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) in all material respects; (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified second sentence of Section ‎4.18 shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and as of the Effective Time Closing Date as though made as of the Closing Date; and (iv) other than the representations and warranties listed in the immediately preceding clauses (i), (ii) and (iii), each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any materiality, Company Material Adverse Effect or like qualifications therein) as though made on and as of such date and time (unless except to the extent that any such representation or and warranty is made only speaks as of a specific any earlier date, in which event case such representation and warranty shall be true and correct or as of such earlier date), except, in each case, for such failures to be true and correct in all material respectsas would not, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Company Material Adverse Effect;. (db) Parent The Company shall have received a certificate of an executive officer of duly performed and complied with, in all material respects, the Companycovenants, certifying that obligations and agreements contained in this Agreement to be performed and complied with by it at or prior to the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;Closing. (ec) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent Sub shall have received documentation reasonably satisfactory to it evidencing a certificate executed on behalf of the Company by its Chief Executive Officer or Chief Financial Officer confirming that all outstanding indebtedness the conditions set forth in clauses ‎(a) and all other obligations under (i‎(b) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall of this Section ‎7.2 have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyduly satisfied.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth FSH contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.28, the representations and warranties of FSH contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth FSH contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.28 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the Each Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under that, with respect to agreements, covenants and conditions that are qualified by materiality, each Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) Each of the Companies’ Insurance Licenses shall be in full force and effect, with no adverse change in the status thereof as compared to the date of this Agreement, and the Companies shall be authorized to transact business in the lines and states indicated on Section 7.02(c) of the Disclosure Schedules. (d) All Insurance Approvals (including approval of the Hawaii Insurance Division and any requisite or requested approval or consent of the Louisiana Department of Insurance) shall have been received without any limitations, restrictions or conditions, and otherwise on terms, satisfactory to Parent, and shall be consistent with this Agreement and all Ancillary Agreements, as with the Form A application filed with the Hawaii Insurance Division and Parent’s proposed management of, and business plans for, FSIC submitted in support of any such application. (e) No Action shall have been commenced against Parent, Merger Sub or any Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (f) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (cg) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be instituted expected to result in a Material Adverse Effect. (h) FSH shall have obtained releases of all Encumbrances, guarantees, mortgages and deeds of trusts securing any Company’s or pending any action, investigation or proceeding of their Affiliates’ Indebtedness for borrowed money and encumbering the assets of any Company and any guarantees given by any Governmental Entity, and there shall not be instituted Company with respect to any Company’s or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, of their Affiliates’ Indebtedness for borrowed money. (i) challenging or seeking All approvals and consents required to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit be obtained under the consummation of the Merger or seeking to obtain material damages relating to Hawaii Lease in connection with the transactions contemplated by this Agreement (including the Merger) shall have been received on commercially reasonable terms and on terms acceptable to Parent (in Parent’s sole discretion), and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing. (iij) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion FSH shall have delivered each of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction (or waiver at by Parent and Merger Sub) on or prior to the Effective Time Closing Date of the following conditions: (a) (i) Representations and Warranties of the Company. The representations and warranties of the Company (i) set forth in Sections 3.3(aSection 3.07(i) and Section 3.07(ii) (Absence of Certain Changes or Events) shall be true and correct as of the date hereof and at and as of the Closing Date as though made at and as of such date; (ii) set forth in Section 3.01 (Organization, Standing and Power), 3.4 Section 3.03(b) and 3.18 (d) (Subsidiaries), Section 3.04 (Authority; Execution and Delivery; Enforceability) and Section 3.21 (Brokers and Other Advisors) shall be true and correct (for purposes of determining the satisfaction of this Agreement condition, without regard to any “materiality,” “Company Material Adverse Effect” or similar qualifications and exceptions contained therein) in all material respects as of the date hereof and at and as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)), (iii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct in all respects, (ii) the representations and warranties respects as of the Company date hereof and at and as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)), other than for de minimis inaccuracies, and (iv) set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement Article III, other than those specified in the foregoing clauses (i) and through (ii) that are not so qualified iii), shall be true and correct in all material respects(for purposes of determining the satisfaction of this condition, in each case, without regard to any “materiality,” “Company Material Adverse Effect” or similar qualifications and exceptions contained therein) as of the date of this Agreement hereof and at and as of the Effective Time Closing Date as though made on at and as of such date (unless any such representation or warranty is made only as of a specific date, in which event except to the extent such representation and warranty shall be true expressly relates to a specified date (in which case at and correct or true and correct in all material respects, as the case may be, as of such specified date)), except where the failure of any other than for such representations and warranties referred to in this clause (iii) failures to be so true and correct, in the aggregate, has not had, and correct that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) Performance of Obligations of the Company. The Company shall have performed in all material respects the all obligations, covenants and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction or waiver at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a4.2, 4.5(a), 3.4 4.21 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified 4.24 shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and as of the Effective Time Closing Date as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and or warranty shall be true and correct in all material respects only as of such specific date) and (ii) the other representations and warranties of the Company set forth in this Agreement (disregarding all qualifications and exceptions contained therein regarding materiality or a Material Adverse Effect) shall be true and correct in all material respects, as of the case may be, date of this Agreement and as of the Closing Date as though made on and as of such specified date, except, in the case of this clause (ii), except as contemplated by this Agreement or where the failure of any such representations and warranties referred to in this clause (iii) representation or warranty to be so true and correctcorrect would not have a Material Adverse Effect (unless any such representation or warranty is made only as of a specific date, in which event such representation or warranty shall be true and correct only as of such specific date, except as contemplated by this Agreement or where the aggregate, has not had, failure of any such representation or warranty to be so true and correct would not reasonably be expected to have, have a Material Adverse Effect); (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, by or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date; and (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be is further subject to the satisfaction or waiver at or prior to the Effective Time Closing of the following conditions: (a) Except as a result of action expressly permitted under this Agreement or expressly consented to in writing by Parent pursuant to Section 5.1, (i) the representations and warranties of the Company set forth contained in this Agreement (other than the representations and warranties of the Company contained in Sections 3.3(a)3.1, 3.4 3.2, 3.3, 3.19 and 3.18 of this Agreement 3.20) shall be true both when made and correct as of the Closing Date, as if made as of such time (except to the extent such representations and warranties are expressly made as of a certain date, in which case such representations and warranties shall be true in all respects, as of such date), except where the failure of such representations and warranties to be so true (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and (ii) the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect Sections 3.1, 3.2, 3.3, 3.19 and 3.20 shall be true in all respects both when made and correct and as of the Closing Date, as if made as of such time (iii) except to the extent such representations and warranties are expressly made as of the Company set forth a certain date, in this Agreement other than those specified in the foregoing clauses (i) which case such representations and (ii) that are not so qualified warranties shall be true and correct in all respects, as of such date). (b) The Company shall have performed, or complied with, in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets No Material Adverse Change of the Company shall have occurred since the date of this Agreement and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;continuing. (d) Parent shall have received a an officer’s certificate of an executive officer duly executed by each of the Company, certifying Chief Executive Officer and Chief Financial Officer of the Company to the effect that the conditions set forth in Section Sections 7.2(a), (b) and Section 7.2(b(c) have been satisfied;. (e) each Parent shall have received an opinion of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇& ▇▇▇▇▇▇▇ LLP, counsel to Parent, or such other Tax counsel reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, to the effect that the Merger to the effect that the Merger should qualify for the Intended Tax Treatment. In rendering such opinion, such counsel may require and shall be entitled to rely upon reasonable and customary representations and covenants, including those contained in representation letters signed by officers of Parent, the Company and Merger Sub. The opinion condition referred to in this Section 7.2(e) shall not have rescinded be waivable after receipt of the Employment Agreement or advised Parent that he Company Shareholder Approval unless further shareholder approval by the Company shareholders is unwilling to continue employment obtained with the relevant employing entity specified in the Employment Agreement following the Effective Time;appropriate disclosure. (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each Indebtedness of the Senior Debt Agreement and Company in favor of Cyrus outstanding immediately prior to the Subordinated Debt Agreement Effective Time debt shall have been effectively terminated be assigned to or assumed by Parent as of the parties thereto Effective Time in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party terms of the amount of the indebtedness allocable to such partySection 6.19.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall be further 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 of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respectsTime, (ii) the representations and warranties of the Company set forth contained in this Agreement and in any certificate or other than those specified in writing delivered by the foregoing clause (i) Company pursuant hereto that are qualified as to by materiality or Material Adverse Effect shall be true true, and correct and (iii) the all other such representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement case at and as of the Effective Time as though if made on at and as of such date time (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified earlier date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive signed by a duly authorized officer of the Company, certifying that Company to the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedforegoing effect; (eb) each no court, arbitrator or governmental body, agency or authority, domestic or foreign, shall have issued any order, and there shall not be any statute, rule or regulation, restraining or prohibiting the consummation of the Subordinated Debt Termination Agreement, Merger or the Trademark License Agreement, effective operation of the Tax Receivable Termination Agreement business of the Company and the Employment Agreement shall be in force and effect at its Subsidiaries after the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (gc) Parent the financing contemplated by the Commitment Letter to be provided by the Bank shall have received releases been completed on substantially the terms and acknowledgements from each party conditions identified in such Commitment Letter or on such other terms and conditions or involving such other financing sources, as are acceptable to the Senior Debt Agreement Parent and the Subordinated Debt Agreement Company and are not materially more onerous; provided, however, that all liens and security interests have been released upon payment this condition shall be deemed satisfied if the failure of this condition is due to such party a willful breach by Parent or Merger Sub of any covenant or willful failure to perform any agreement or a willful breach by Parent or Merger Sub of any representation or warranty contained in the amount of Financing Agreements with the indebtedness allocable to such partyBank.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment (or waiver Parent’s waiver, to the extent permitted by Law), at or prior to the Effective Time Closing, of each of the following additional conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(a)Section 3.01, 3.4 Section 3.02, Section 3.04, Section 3.06 and 3.18 Section 3.25, the representations and warranties of the Company contained in this Agreement shall be true and correct in all respectsrespects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and, subject to Section 5.17(a)(ii), on and as of the Closing Date with the same effect as though made at and as of such date (ii) the except those representations and warranties that address matters only as of a specified date shall be so true and correct as of such date). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02, Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.25 shall be true and correct in all material respects, in each case, respects (other than de minimis inaccuracy) on and as of the date of this Agreement hereof and, subject to Section 5.17(a)(ii), on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, determined as of such that specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) The Company licenses set forth on Section 8.02(c) of the Disclosure Schedules shall each be valid and in full force and effect, with no violations having been experienced, noted or recorded, which violations have not been cured to the satisfaction of Parent in its sole discretion as of the Closing Date, and no Proceeding pending or threatened to revoke or limit such licenses on the Closing Date. (d) The Requisite Company Vote and Company Board Recommendation shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent No holders of any outstanding shares of Company Stock as of immediately prior to the Effective Time shall have received releases and acknowledgements from each party exercised, or remain entitled to exercise, statutory appraisal rights pursuant to the Senior Debt Agreement and DGCL with respect to such shares of Company Stock. (h) The Company Entities shall have Cash in an amount not less than the Subordinated Debt Agreement that all liens and security interests Minimum Cash Amount. (i) The Exchange Approval shall have been released upon payment received. (j) The Company shall have delivered to Parent (or the Exchange Agent if applicable) a Letter of Transmittal properly completed and duly executed by each Stockholder (other than any Dissenting Stockholders) with respect to all the Shares and delivered to Parent Written Consents contemplated by Section 5.5(b). (k) The Company Incentive Plan shall have been terminated. (l) The Third-Party Consents shall have been received in form and substance reasonably satisfactory to Parent, and no such party of the amount of the indebtedness allocable to such partyconsent, authorization, order and approval shall have been revoked.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement both when made and as of the Effective Time as though made on and as of such date Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified specific date), ) except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein), in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect; provided that, the representations and warranties of the Company set forth in (x) Sections 3.3, 3.4 and 3.15 shall be true and correct in all material respects and (y) Section 3.9(a) shall be true and correct without disregarding the Material Adverse Effect qualification set forth in such Section 3.9(a); (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed byperformed, or complied with bywith, by it under this Agreement at or prior to the Effective Time;; and (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 3.3 (a) and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date the Effective Time (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event case as of such representation earlier date), except for any failure to be true and warranty correct that would be immaterial to Parent and Merger Sub; and (ii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any limitation on any representation or true and correct warranty indicated by the words “Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially,” except for the limitation set forth in clause (i) of Section 3.8) as of the date of this Agreement and as of the Effective Time, as though made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case may be, as of such specified earlier date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and correct 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 the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time;; and (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction or (to the extent permitted by Law) waiver by Parent, at or prior to the Effective Time Closing, of the following additional conditions: (a) (i) the representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement Section 4.11(a)(ii shall be true and correct in all respectsrespects as of the Closing Date as if made at and as of the Closing Date, (ii) the representations and warranties of the Company set forth contained in the first sentence of Section 4.1, Section 4.2(a), Section 4.4(a), the first sentence of Section 4.4(b) and Section 4.22 of this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct (except for de minimis exceptions) as of the Closing Date as if made at and as of the Closing Date (except to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct (except for de minimis exceptions) as of such other time), and (iii) all of the other representations and warranties of the Company set forth contained in this Agreement or in any certificate or other than those writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct as of the Closing Date as if made at and as of the Closing Date (except (1) to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in the foregoing clauses (i) which case such representation and (ii) that are not so qualified shall warranty will be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and respects as of such date other time or (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except 2) where the failure of any or all of such representations and warranties referred to in this clause (iii) to be so true and correct, correct would not in the aggregate, has not had, and would not reasonably be expected to have, aggregate have a Company Material Adverse Effect); (b) all required filings shall have been made and all required approvals shall have been obtained (or waiting periods expired or terminated) under any Antitrust Laws that are applicable to the Transactions; (c) all of the Specified Approvals shall have been obtained in form and substance reasonably satisfactory to Parent, on or prior to, and shall be in full force and effect on, the Closing Date; (d) the Company shall have performed in all material respects the obligations, and complied with in all material respects with each of the agreements covenants and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at on or prior to the Effective TimeClosing Date; (ce) from the date hereof through the Closing Date, there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there have occurred a Company Material Adverse Effect; and (f) the Company shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely have delivered to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation as of the Merger or seeking to obtain material damages relating to the transactions contemplated Closing Date, a certificate, dated as of such date, executed by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying Company to the effect that the conditions set forth in Section 7.2(aclauses (a ), (d ) and (e ) of this Section 7.2(b) 9.3 have been satisfied; (e) each , and certifying as to the aggregate outstanding Indebtedness of the Subordinated Debt Termination Agreement, Company and its Subsidiaries comprising the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he total long-term debt (as such term is unwilling to continue employment with the relevant employing entity specified used in the Employment Agreement following the Effective Time; (fCompany Balance Sheet) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyClosing Date.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are, in addition to the conditions set forth in Section 6.1 (Conditions to the Obligations of Each Party), further subject to the satisfaction or (to the extent not prohibited by Law) waiver by Parent at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties of the Company set forth contained in Sections 3.3(a)this Agreement, 3.4 and 3.18 of this Agreement without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct both when made and as of the Closing Date, as if made at and as of such time (except to the extent such representations and warranties are expressly made as of a specific date, in all respectswhich case such representations and warranties shall be so true and correct as of such specific date only), (ii) except for such failures to be true and correct as would not have a Company Material Adverse Effect; provided, however, that the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as Section 3.1(a) (Organization and Qualification; Subsidiaries), Section 3.3(a) (Authority Relative to materiality or Material Adverse Effect shall be true Agreement), Section 3.19 (Vote Required), Section 3.20 (Brokers), and correct and Section 3.21 (iiiOpinion of Financial Advisor) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement case both when made and at and as of the Effective Time Closing Date, as though if made on at and as of such date time (unless any except to the extent such representation or warranty is representations and warranties are expressly made only as of a specific date, in which event case such representation representations and warranty warranties shall be so true and correct as of such specific date only), (ii) Section 3.2(a) and Section 3.2(b) (with respect to the Company only) shall be true and correct in all respects (except for such inaccuracies as are de minimis in the aggregate) both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only), and (iii) Section 3.3(b) (Authority Relative to Agreement) and the second sentence of Section 3.9 (Absence of Certain Changes or Events) shall be true and correct in all material respects, respects both when made and at and as of the case may be, Closing Date as if made at and as of such specified date), time (except where to the failure of any extent such representations and warranties referred to are expressly made as of a specific date, in this clause (iii) to which case such representations and warranties shall be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effectcorrect as of such specific date only); (b) the Company shall have performed in all material respects the obligationsand complied, and complied as applicable, in all material respects with the its obligations, covenants and agreements and covenants, required under this Agreement to be performed by, or complied with by, it under this Agreement at on or prior to the Effective TimeClosing Date; (c) since the date hereof, there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the have been a Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;; and (d) Parent the Company shall have received delivered a certificate to Parent, dated as of an the Closing Date and duly executed by a senior executive officer (or similar authorized person) of the Company, certifying to the effect that the conditions set forth in Section 7.2(aSections 6.2(a), 6.2(b) and Section 7.2(b6.2(c) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(a)this Agreement, 3.4 the Ancillary Documents and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects, respects (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are case of any representation or warranty qualified as to by materiality or Material Adverse Effect shall be true and correct and (iiiEffect) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct or in all material respects, respects (in each case, the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect on the Company, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;Effect on the Company. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent shall None of the Founders have received releases terminated their employment with the Company or indicated their intention to do so and acknowledgements from each party to of the Senior Debt Agreement Founders Agreements remain in place and the Subordinated Debt Agreement that all liens and security interests have not been breached or challenged by any Founders. (h) All Options have been released upon payment to such party exercised or will be terminated as of the amount Effective Time. (i) All Convertible Notes have been converted into shares of the indebtedness allocable to such partyCompany Note Conversion Common Stock.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be is further subject to the satisfaction or waiver at or prior to the Effective Time Closing of the following conditions: (a) Except as a result of action expressly permitted or expressly consented to in writing by Parent pursuant to Section 5.1, (i) the representations and warranties of the Company set forth Andrew contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) other than the representations and warranties of the Company set forth Andrew contained in this Agreement other than those specified in the foregoing clause (iSections 4.2, 4.3(a), 4.3(b), 4.3(c), 4.13 and 4.15) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement both when made and as of the Effective Time Closing Date, as though if made on and as of such date time (unless any except to the extent such representation or warranty is representations and warranties are expressly made only as of a specific certain date, in which event case such representation representations and warranty warranties shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not had, have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;Effect on Andrew and (ii) the representations and warranties of Andrew contained in Sections 4.2, 4.3(a), 4.3(b), 4.3(c), 4.13, and 4.15 shall be true in all material respects both when made and as of the Closing Date, as if made as of such time (except, to the extent such representations and warranties are expressly made as of a certain date, in which case such representations and warranties shall be true in all material respects, as of such date). (b) the Company Andrew shall have performed performed, or complied with, in all material respects the obligationsrespects, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a No Material Adverse Effect;Change of Andrew shall have occurred since the date of this Agreement and be continuing. (d) Parent shall have received a an officer’s certificate of an executive officer duly executed by each of the Company, certifying Chief Executive Officer and Chief Financial Officer of Andrew to the effect that the conditions set forth in Section Sections 7.2(a) ), (b), and Section 7.2(b(c) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement the Members contained herein shall be true accurate and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct complete in all material respects, in each case, as of the date of this Agreement respects on and as of the Effective Time Date and on and as of the Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) The Company and the Company Members shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby the Company and the Members, it under this Agreement as applicable, prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent or delay the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby. (d) All approvals, consents, authorizations, orders and waivers that are listed on Section 4.04 of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing, and no such consent, authorization, order, waiver or approval shall have been amended, modified or otherwise revoked or withdrawn. (ce) From the Effective Date, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;; provided, however, if the Manitou Code Amendment is passed in the Special Election, such occurrence shall not be deemed a Material Adverse Effect that would entitle Parent and Merger Sub to terminate this Agreement pursuant to Section 10.01(b) or to receive any adjustment to the Merger Consideration other than the receipt of the Special Election Escrow Fund pursuant to Section 2.11(a). (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions Closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”3.02(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, the first two sentences of Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.25 and the representations and warranties of the Stockholders contained in Section 4.01, Section 4.02 and Section 4.05, the representations and warranties of each of the Company and the Stockholders contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Company contained in Section 3.01, (ii) the first two sentences of Section 3.02(a), Section 3.04, Section 3.06 and Section 3.25 and the representations and warranties of the Company set forth Stockholders contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 4.01, Section 4.02 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 4.05 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) The Company, and the Company Stockholders shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby each of them prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company, and the Stockholders shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against Parent, Merger Sub or the Company or any of its Subsidiaries, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All Required Consents (including, without limitation, the Lease Consents) shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) The Company shall have delivered each of the closing deliverables set forth in Section 2.03(a). (g) The board of directors and stockholders of Parent shall have approved the transactions contemplated in this Agreement and the Ancillary Documents, to the extent required under applicable Law. (h) Parent shall have received a certificate of an executive officer of the Company, certifying that financing on the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified terms provided for in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Financing Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. (a) The obligations of Parent and Merger Sub to complete the Closing and effect the Merger shall be under Article III of this Agreement are further subject to the satisfaction (or waiver at or prior to the Effective Time in writing by Parent and Merger Sub) of the following conditionsconditions precedent on or before the Effective Time: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a4.1(c)(i)-(iii), 3.4 and 3.18 of this Agreement shall be true and correct (except for any de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in all respects, which case such representation and warranty shall be true and correct as of such earlier date); (ii) the The representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (iSections 4.1(a), 4.1(c)(iv), 4.2, 4.3(iii), third sentence of Section 4.1(d) that are qualified as to materiality or Material Adverse Effect and 4.18 shall be true and correct as of the date of this Agreement, and as of the Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) in all material respects; (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified second sentence of Section 4.16 shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and as of the Effective Time Closing Date as though made as of the Closing Date; and (iv) other than the representations and warranties listed in the immediately preceding clauses (i), (ii) and (iii), each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any materiality, Company Material Adverse Effect or like qualifications therein) as though made on and as of such date and time (unless except to the extent that any such representation or and warranty is made only speaks as of a specific any earlier date, in which event case such representation and warranty shall be true and correct or as of such earlier date), except, in each case, for such failures to be true and correct in all material respectsas would not, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Company Material Adverse Effect;. (b) The Company shall have duly performed and complied with, in all material respects, the covenants, obligations and agreements contained in this Agreement to be performed and complied with by it at or prior to the Closing. (c) No Company Material Adverse Effect shall have occurred since the date of this Agreement. (d) Parent and Merger Sub shall have received a certificate of an executive officer executed on behalf of the Company, certifying Company by its Chief Executive Officer or Chief Financial Officer confirming that the conditions set forth in Section 7.2(aclauses (a), (b) and (c) of this Section 7.2(b) 7.2 have been duly satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment (or waiver Parent’s waiver, to the extent permitted by Law), at or prior to the Effective Time Closing, of each of the following additional conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(a)Section 3.01, 3.4 Section 3.02, Section 3.04, Section 3.06 and 3.18 Section 3.25, the representations and warranties of the Company contained in this Agreement shall be true and correct in all respectsrespects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and, subject to Section 5.17(a)(ii), on and as of the Closing Date with the same effect as though made at and as of such date (ii) the except those representations and warranties that address matters only as of a specified date shall be so true and correct as of such date). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02, Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.25 shall be true and correct in all material respects, in each case, respects (other than de minimis inaccuracy) on and as of the date of this Agreement hereof and, subject to Section 5.17(a)(ii), on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, determined as of such that specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) The Company licenses set forth on Section 8.02(c) of the Disclosure Schedules shall each be valid and in full force and effect, with no violations having been experienced, noted or recorded, which violations have not been cured to the satisfaction of Parent in its sole discretion as of the Closing Date, and no Proceeding pending or threatened to revoke or limit such licenses on the Closing Date. (d) The Requisite Company Vote and Company Board Recommendation shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent No holders of any outstanding shares of Company Stock as of immediately prior to the Effective Time shall have received releases and acknowledgements from each party exercised, or remain entitled to exercise, statutory appraisal rights pursuant to the Senior Debt Agreement and Nevada Act with respect to such shares of Company Stock. (h) The Company Entities shall have Cash in an amount not less than the Subordinated Debt Agreement that all liens and security interests Minimum Cash Amount. (i) The Exchange Approval shall have been released upon payment received. (j) The Company shall have delivered to Parent (or the Exchange Agent if applicable) a Letter of Transmittal properly completed and duly executed by each Stockholder (other than any Dissenting Stockholders) with respect to all the Shares and delivered to Parent Written Consents contemplated by Section 5.5(b). (k) The Company Incentive Plan shall have been terminated. (i) The Third-Party Consents shall have been received in form and substance reasonably satisfactory to Parent, and no such party of the amount of the indebtedness allocable to such partyconsent, authorization, order and approval shall have been revoked.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger shall also be further subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions: (a) The representations and warranties set forth in: (i) Article IV (other than in the case of the representations and warranties of the Company set forth contained in Sections 3.3(a4.4(a) and (b) and 4.12(a)), 3.4 disregarding all qualifications and 3.18 exceptions contained therein relating to materiality, Material Adverse Effect or words of this Agreement similar import, shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of on the date of this Agreement hereof and at and as of the Effective Time Closing Date as though if made on and as of such date dates (unless any such representation or warranty is except for representations and warranties that are made only as of a specific specified date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, only as of such specified date), except where the failure of any with only such representations and warranties referred to in this clause (iii) to be so true and correctexceptions as would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect on MUSA; (ii) Sections 4.4(a) and (b) shall be true and correct on the date hereof and at and as of the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not, individually or in the aggregate, (A) result or reasonably be expected to result in the payment of additional amounts under Article II hereof in excess of $100,000 or (B) impose any other liability on Parent, Merger Sub or the Surviving Corporation; and (iii) Section 4.12(a) shall be true and correct in all respects on the date hereof and at and as of the Closing Date as if made on and as of the date hereof. (b) MUSA shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” or “Material Adverse Effect;,” in which case MUSA shall have performed and complied with all of such covenants in all respects through the Closing. (c) MUSA shall have delivered to Parent a certificate duly executed by an authorized officer on behalf of MUSA to the effect that each of the conditions specified in Sections 6.2(a) and (b) is satisfied in all respects. (d) Parent The Debt Financing shall have received a certificate of an executive officer of been obtained by Parent and Merger Sub on the Company, certifying that the terms and conditions set forth in the Debt Financing Agreement, or alternative financing (sufficient, when taken together with the proceeds from the Equity Financing, to pay the Required Amounts) as provided in Section 7.2(a5.2(b) and Section 7.2(b) shall have been satisfied;obtained. (e) each The Employment Agreement shall not have been terminated and shall remain in full force and effect as of the Subordinated Debt Termination AgreementClosing Date; provided, the Trademark License Agreementhowever, the Tax Receivable Termination Agreement and that a termination of the Employment Agreement shall be or a failure of the Employment Agreement to remain in full force and effect at as of the Effective Time, Closing Date shall not be deemed to be a failure of the condition set forth in this Section 6.2(e) if such termination or failure to remain in full force and effect is solely a result of (i) L▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall being unable to perform his duties thereunder due to his death or Disability (as defined in the Employment Agreement), (ii) L▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇’▇ termination thereunder “without Cause” (as defined in the Employment Agreement) or “without Good Reason” (as defined in the Employment Agreement) or (iii) a commission of an act by L▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ which would not have rescinded constituted Cause under the Employment Agreement or advised Parent that he is unwilling to continue employment with if the relevant employing entity specified word “significantly” preceded the words “adversely impact” in Section 3(b)(viii) of the Employment Agreement following the Effective Time;Agreement. (f) Parent Holders of not more than 10% of the outstanding shares of MUSA Common Stock shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness demanded and all other obligations under validly perfected appraisal of their MUSA Common Stock in accordance with the DGCL. (g) (i) Any consent or approval required under the Amended agreements, contracts or other instruments listed on Annex 6.2(g) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby shall have been received by MUSA, and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented no such consent or otherwise modified (the “Senior Debt Agreement”); approval shall have been revoked and (ii) all other consents or approvals required under any of the Subordinated Credit other agreements, contracts or other instruments to which MUSA or any of its subsidiaries is a party (or by which it or any of its respective properties or assets is bound) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby shall have been paid, discharged received by MUSA (and no such consent or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement approval shall have been effectively terminated by revoked), except for such consents or approvals (A) which are listed in Section 4.5(b) of the parties thereto MUSA Disclosure Schedules or (B) the failure of which to obtain and not be revoked would not, individually or in accordance with the aggregate, materially adversely affect the operation of the business of Surviving Corporation and its terms, subsidiaries from and that all liens and security interests after the Closing nor result in connection therewith have been released; andany material liability. (gh) Parent shall Since the date of this Agreement, there has not been any Material Adverse Effect on MUSA or any event, change, effect or development that would, individually or in the aggregate, have received releases and acknowledgements from each party or reasonably be expected to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partya Material Adverse Effect on MUSA.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) Each of the representations and warranties of the Company set forth in Section 3.3 (other than immaterial inaccuracies in the second, third, fourth and fifth sentences of Section 3.3(a)) shall be true and correct, (ii) each of the representations and warranties of the Company set forth in Sections 3.3(a)3.1, 3.4 3.4, 3.16 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified 3.17 shall be true and correct in all material respects, in respects and (ii) each case, as of the date other representations and warranties of the Company contained in this Agreement (disregarding all qualifications and as of the Effective Time as though made on and as of such date (unless exceptions contained therein regarding materiality or a Company Material Adverse Effect or any such representation similar standard or warranty is made only as of a specific date, in which event such representation and warranty qualification) shall be true and correct or true and correct in except to the extent that all material respects, as the case may be, as failures of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect (disregarding all qualifications and exceptions contained therein regarding materiality or a Company Material Adverse Effect or any similar standard or qualification), individually or in the aggregate, has have not had, and would not reasonably be expected to have, a Company Material Adverse Effect;, in each case of clauses (i) through (iii) above as of the date of this Agreement and as of the Closing Date as if made at and as of such time (except for representations and warranties made only as of a specified date, which shall be true and correct only as of the specified date). (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, by or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer the Chief Executive Officer or the Chief Financial Officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied;. (d) Parent shall be reasonably satisfied (having taken appropriate steps to try to assess its status) that it will qualify as a "foreign private issuer" (as such term is defined in Rule 405 promulgated under the Securities Act and Rule 3b-4 promulgated under the Exchange Act) at the time of the Closing; provided that the condition specified by this Section 7.2(d) shall automatically be deemed to be satisfied on April 28, 2006, if it has not previously been satisfied or waived by Parent and, assuming that all other conditions to Closing specified in this Article VII have been satisfied or waived (excluding conditions that, by their terms, cannot be satisfied until the Closing, but the Closing shall be subject to the satisfaction or waiver of those conditions), the Closing shall take place on such date. (e) each The Company shall have taken, and shall have taken all actions necessary or appropriate for it to be able to take, a charge on its books to its earnings in an amount equal to any probable and estimable US and foreign Tax costs (as determined pursuant to U.S. generally accepted accounting principles) in respect of the Subordinated Debt Termination Agreement, Reorganization; provided that the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement Company shall be in force and under no obligation to make any determination to effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement Reorganization or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and incur any charge on its books until all other obligations under (i) conditions set forth in this Article VII to the Amended and Restated Credit Agreement among Company's, Parent's or Merger Sub's obligation to effect the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall Merger have been paidsatisfied or waived (excluding conditions that, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its their terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to cannot be satisfied until the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyClosing).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction or waiver fulfillment, at or prior to the Effective Time Closing, of each of the following conditions, any of which may be waived in writing by Parent in its sole discretion: (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(a), 3.2 and 3.4 and 3.18 of this Agreement shall be true and correct in all respectsmaterial respects both when made and as of the Closing Date, (ii) or in the case of representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) such sections that are qualified made as to materiality or Material Adverse Effect shall be true and correct and (iii) the of a specified date, such representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and respects as of such date specified date; and (unless ii) all other representations and warranties of the Company contained in this Agreement or any such representation or warranty is made only as of a specific date, in which event such representation and warranty certificate delivered pursuant hereto shall be true and correct both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material,” but not the word “Material” in the term “Material Contracts” or “Material Adverse Effect” set forth therein) do not, individually or in the aggregate, have a Material Adverse Effect. (b) The Company shall have, in all material respects, as except with respect to the case may be, as of such specified datecovenant in Section 5.8(f), except where the failure of any such representations and warranties referred to in this clause (iii) to which shall be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligationsrespects, performed all obligations and agreements and complied in with all material respects with the agreements covenants and covenants, conditions required by this Agreement to be performed by, or complied with by, by it under this Agreement at or prior to or at the Effective Time;Closing. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received from the Company a certificate of an executive officer of to the Company, certifying that the conditions effect set forth in Section 7.2(aSections 6.3(a) and Section 7.2(b(b), signed by a duly authorized officer thereof. (d) The consents set forth in Schedule 6.3(d) shall have been satisfied;obtained. (e) each Holders of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect Shares at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall Time representing not have rescinded more than the Employment Agreement or advised Parent that he is unwilling to continue employment with percentage of the relevant employing entity specified in the Employment Agreement following the Effective Time; (foutstanding Shares set forth on Schedule 6.3(e) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations properly demanded appraisal rights under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyDGCL.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be is further subject to the satisfaction or waiver at or prior to the Effective Time Closing of the following conditions: (a) Except as a result of action expressly permitted or expressly consented to in writing by Parent pursuant to Section 5.1, (i) the representations and warranties of the Company set forth contained in this Agreement (other than the representations and warranties of the Company contained in Sections 3.2, 3.3(a), 3.4 and 3.18 of this Agreement 3.3(b), 3.3(c), 3.19, 3.21) shall be true both when made and correct as of the Closing Date, as if made as of such time (except to the extent such representations and warranties are expressly made as of a certain date, in which case such representations and warranties shall be true in all respects, as of such date), except where the failure of such representations and warranties to be so true (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and (ii) the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect Sections 3.2, 3.3(a), 3.3(b), 3.3(c), 3.19, 3.21 shall be true in all material respects both when made and correct and as of the Closing Date, as if made as of such time (iii) except to the extent such representations and warranties are expressly made as of the Company set forth a certain date, in this Agreement other than those specified in the foregoing clauses (i) which case such representations and (ii) that are not so qualified warranties shall be true and correct in all respects, as of such date). (b) The Company shall have performed, or complied with, in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets No Material Adverse Change of the Company shall have occurred since the date of this Agreement and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;continuing. (d) Parent shall have received a an officer’s certificate of an executive officer duly executed by each of the Company, certifying Chief Executive Officer and Chief Financial Officer of the Company to the effect that the conditions set forth in Section Sections 7.2(a) ), (b), and Section 7.2(b(c) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at on or prior to the Effective Time of the following conditionsadditional conditions precedent any of which can be waived by, and in the sole discretion of, Parent or Merger Sub: (a) The Company shall have performed in all material respects and complied in all material respects with all agreements and conditions contained in this Agreement that are required to be performed or complied with by it prior to or at the Closing. (ib) Each of the Company's representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 Article IV of this Agreement shall be true and correct in all respects, (ii) respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Company set forth in Closing, except for changes permitted by this Agreement other than those specified in and except where the foregoing clause (i) that are qualified as failure of such representation and warranty to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respectsrespects does not have and could not be reasonably expected to have, individually or in each casethe aggregate, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless a Material Adverse Effect; provided that any such representation or and warranty which is made itself qualified as to Material Adverse Effect shall not be deemed so qualified for purposes of this condition and any representation and warranty that addresses matters only as of a specific date, in which event such representation and warranty certain date shall be true and correct or true and correct in all material respects, as the case may be, as of such specified that certain date. (c) The Parent and Merger Sub shall have received the proceeds of the Financing contemplated by the Financing Letters (or Alternative Financing in accordance with Section 6.7). (d) The aggregate number of Appraisal Shares shall not exceed 7% of the outstanding Company Common Stock at the Effective Time. (e) Since the date hereof, except where the failure of there shall not have occurred any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (bf) At the Closing, the Company shall have performed in all material respects delivered signed letters of resignation from each director of the obligations, Company pursuant to which each such director resigns from his 42 position as a director of the Company and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement makes such resignation effective at or prior to the Effective Time;. (cg) there On the Closing Date, no more than $154,400,000 of Net Debt shall be outstanding. (h) The consent, approval or waiver of each person (other than the Required Governmental Consents) whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company or any Subsidiary of the Company under any lease, license or other agreement or instrument shall have been obtained, except where the failure to obtain such consent, approval or waiver would not be instituted materially adversely affect the economic or pending any action, investigation or proceeding business benefits of the transactions contemplated by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely this Agreement to be determined adversely Parent as to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit render inadvisable the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;. (di) Parent shall have received a certificate of an executive officer dated the Closing Date and signed by the Chairman, President or a Vice-President of the Company, certifying that the conditions set forth specified in this Section 7.2(a) and Section 7.2(b) 7.3 have been satisfied; (e) each of the Subordinated Debt Termination Agreementsatisfied and received a calculation, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A.reasonable specificity, as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party determination of the amount of the indebtedness allocable to such partyNet Debt.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further are subject to the satisfaction satisfaction, or waiver at by Parent, on or prior to to, but in any event as of, the Effective Time Closing Date, of the following additional conditions: (a) (i) the representations The representation and warranties warranty of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 Section 3.10(c) of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and as of the Effective Time Closing Date as though made on the Closing Date and (ii) all other representations and warranties of the Company set forth in ARTICLE III of this Agreement, in each case made as if none of such representations and warranties contained any qualifications or limitations as to “materiality” or Material Adverse Effect, shall be true and correct, in each case as of the date of this Agreement and as of the Closing Date as though made on and as of such date the Closing Date (unless any such representation or warranty is made only other than representations and warranties that by their terms speak as of a specific another date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect as so made, individually or in the aggregate, has does not had, have and would is not reasonably be expected to have, result in a Material Adverse Effect;Effect on the Company; provided, however, that, notwithstanding the foregoing, the representations and warranties contained in Section 3.3 (other than the last sentence of Section 3.3(c)), Section 3.4 and Section 3.5 shall be true and correct in all material respects. Parent shall have received a certificate of the chief executive officer or the chief financial officer of the Company to such effect. (b) the The Company shall have performed in all material respects the obligations, and or complied in all material respects with the all agreements and covenants, covenants required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental EntityClosing Date, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an the chief executive officer or the chief financial officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;Company to such effect. (ec) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement The Preferred Stock Conversion Right shall have been paidexercised, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement Preferred Stock Conversion shall have been effectively terminated by the parties thereto in accordance with its terms, consummated and that all liens and security interests in connection therewith have been released; and (g) Parent no Company Series A Preferred Stock shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partybe outstanding.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.24, the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.24 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent The Company or Stockholder Representative shall have received releases and acknowledgements from each party delivered to Parent the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party Joinder Agreements signed by every Stockholder of the amount Company as of the indebtedness allocable to such partydate hereof.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger shall be further is subject to the satisfaction satisfaction, or the waiver at or prior to the Effective Time in Parent’s sole and absolute discretion, of all the following further conditions: (a) The Company shall have duly performed or complied with, in all material respects, all of its obligations hereunder required to be performed or complied with (iwithout giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date. (b) The representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct in all respects, (ii) the representations respects at and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time Closing Date, as though if made on and as of such date (unless except to the extent that any such representation or and warranty is expressly made only as of a specific date, in which event case such representation and warranty shall be true and correct or true at and correct in all material respects, as the case may be, as of such specified specific date), except where the except, in each case, for any failure of any such representations and warranties referred (disregarding all qualifications and exceptions contained therein relating to in this clause (iiimateriality or Material Adverse Effect) to be so true and correct, correct that would not in the aggregate, has not had, and would not aggregate have or reasonably be expected to have, have a Material Adverse Effect; (b) Effect on the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time;Company. (c) there Parent shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated have received a certificate signed by the Merger, (ii) seeking to restrain, prohibit Chief Executive Officer or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets Chief Financial Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a) and its subsidiaries(b) of this Section 9.2. (d) The matter set forth on Schedule 9.2(d) shall not have been determined by a court of competent jurisdiction or settled, taken as nor shall the Company have offered to settle the matter set forth on Schedule 9.2(d), in a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) manner that otherwise would reasonably be expected to have a Material Adverse Effect;Effect on the Company. (de) Parent shall have received a certificate signed by the Secretary of an executive officer the Company attaching true and correct copies of (i) the Company Certificate of Incorporation and by-laws, certified as of a recent date by the Secretary of State of the State of Delaware; (ii) copies of resolutions duly adopted by the Company Board authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Stockholder Written Consent; and (iii) a certificate of good standing of the Company, certifying that certified as of a recent date by the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each Secretary of State of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;State of Delaware. (f) Parent The Company and the Specified Company Securityholders shall have received documentation reasonably satisfactory duly executed and delivered to it evidencing Parent a copy of the Registration Rights Agreement. (g) There shall not have been a Material Adverse Effect with respect to the Company since the date hereof that all outstanding indebtedness is continuing, provided that no event or circumstance set forth on Schedule 9.2(g) shall, for purposes of this Section 9.2(g), be deemed a Material Adverse Effect with respect to the Company. (h) The Company shall have delivered to Parent a duly executed certificate conforming to the requirements of Sections 1.897-2(h)(1)(i) and all other obligations 1.1445-2(c)(3)(i) of the United States Treasury regulations, and a notice to be delivered to the United States Internal Revenue Service as required under Section 1.897-2(h)(2) of the United States Treasury regulations, each dated no more than thirty (30) days prior to the Closing Date and in substantially the form attached hereto as Exhibit H. (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement The Company shall have been paiddelivered to Parent copies of the Stockholder Lockup Agreements, discharged or otherwise terminated so duly executed by each of the Persons set forth on Schedule 9.2(i). (j) The Company shall have delivered to Parent copies of the Lender Lockup Agreements, duly executed by each of the Persons set forth on Schedule 9.2(j). (k) The Company shall have delivered to Parent evidence, in form and substance reasonably acceptable to Parent, that each of the Senior Debt Agreement Contracts set forth on Schedule 9.2(k) has been terminated without any further obligations of the Company. (l) The Closing Company Indebtedness shall not exceed $43,125,000 and there shall be no obligation of the Subordinated Debt Agreement Company arising from or under the Company Indebtedness or any Contract relating thereto to make, from and after the Closing, any payment in the nature of a royalty. (m) The Company shall have been effectively terminated by the parties thereto consummated a Permitted Financing representing at least $15,000,000 in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party gross proceeds to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyCompany.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger Closing shall be further subject to the satisfaction (or waiver in writing by Parent to the extent permitted by applicable Law), at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Each of the representations and warranties of the Company (i) contained in this Agreement (other than the representations and warranties in Section 4.2), without giving effect to any qualification as to materiality contained therein, shall be true and correct as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct as of such earlier date), except to the extent that the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement Section 4.2 shall be true and correct in all respects, except for de minimis inaccuracies, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (ii) except to the extent that such representations and warranties by their terms speak as of the Company set forth an earlier date, in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified which case they shall be true and correct in all material respects, in each caseexcept for de minimis inaccuracies, as of such earlier date). Certain confidential information contained in this document, marked by [*****], has been omitted because Sportradar Holding AG (the “Company”) has determined that the information (i) is not material and (ii) would likely cause competitive harm to the Company if publicly disclosed. (b) Each of the covenants and agreements contained in this Agreement to be complied with or performed by the Company and Management Aggregator at or before the Closing shall have been complied with or performed in all material respects by the Company and/or Management Aggregator, as applicable. (c) No event, circumstance, change or condition shall have occurred since the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation which has had or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;. (d) Parent The Company shall have received delivered to the Parent a certificate of signed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions set forth specified in Section 7.2(aSections 8.3(a), 8.3(b) and Section 7.2(b8.3(c) have been satisfied;fulfilled. (e) each Either (i) the period during which any Company Equityholders can exercise statutory appraisal rights under Section 262 of the Subordinated Debt Termination Agreement, DGCL with respect to the Trademark License Agreement, Merger shall have expired and Company Equityholders holding [*****] of the Tax Receivable Termination Agreement and Company Capital Stock entitled to exercise such appraisal rights shall have exercised such appraisal rights (to the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ extent such exercises shall not subsequently have rescinded been validly withdrawn or waived) or (ii) Company Equityholders holding [*****] of the Employment Agreement or advised Parent that he is unwilling Company Capital Stock entitled to continue employment with exercise such appraisal rights shall have effectively waived such appraisal rights in accordance Section 262 of the relevant employing entity specified in DGCL by execution of and delivery to the Employment Agreement following the Effective Time;Company of a Consent Agreement. (f) Parent The Company shall have received documentation reasonably delivered duly executed consents approving or consenting to the transactions contemplated hereby, in form and substance reasonable satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating PartnershipParent, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that from each of the Senior Debt Agreement Persons set forth on Section 8.3(f) of the Disclosure Schedule, and the Subordinated Debt Agreement such consents shall not have been effectively amended, modified, waived, terminated by or revoked prior to the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; andClosing. (g) Parent The Company shall have received releases and acknowledgements from each party delivered to Parent, the Senior Debt Agreement and Escrow Agreement, duly executed by the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyEquityholder Representative.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to complete the Closing and effect the Merger shall be under Article III are further subject to the satisfaction (or waiver at or prior to the Effective Time in writing by Parent and Merger Sub) of the following conditionsconditions precedent on or before the Effective Time: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a4.1(c)(i)-(iii) (other than the penultimate sentence of Section 4.1(c)(ii), 3.4 ) and 3.18 of this Agreement Section 4.1(c)(v) shall be true and correct in all respects, (iiexcept for any de minimis inaccuracies) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (ii) The representations and warranties of the Company set forth in Section 4.1(a), the penultimate sentence of Section 4.1(c)(ii), Section 4.1(c)(iv), the first sentence of Section 4.1(d), Section 4.1(e), Section 4.2, Section 4.3(iii), Section 4.18 and the first sentence of Section 4.19 shall be true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any “materiality” or “Company Material Adverse Effect” qualifiers) as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) in each case in all material respects; (iii) The representations and warranties of the Company set forth in the last sentence of Section 4.16 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date; and (iv) Other than the representations and warranties listed in the immediately preceding clauses (i), (ii) and (iii), each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any “materiality” or “Company Material Adverse Effect” qualifiers) as though made on and as of such date and time (unless except to the extent that any such representation or and warranty is made only speaks as of a specific any earlier date, in which event case such representation and warranty shall be true and correct or as of such earlier date), except, in each case, for such failures to be true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has have not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;. (b) the The Company shall have duly performed and complied with, in all material respects respects, the obligations, and complied in all material respects with the agreements and covenants, required obligations and agreements contained in this Agreement to be performed by, or and complied with by, by it under this Agreement at or prior to the Effective Time;Closing. (c) Since the date of this Agreement, there shall not be instituted have occurred any Effect or pending any actionEffects that, investigation individually or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parentin the aggregate, (i) challenging have had a Company Material Adverse Effect that is continuing or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Company Material Adverse Effect;Effect within a reasonable period following the Closing. (d) No Governmental Authority of competent jurisdiction shall have in connection with any Transaction Approvals (i) enacted, issued or promulgated any Law that is in effect or (ii) issued or granted any Order or injunction (whether temporary, preliminary or permanent) that is in effect, in each case which requires Parent, the Company or any of their respective Subsidiaries to take or commit to take any action that constitutes or would reasonably be expected to result in a Burdensome Condition. (e) Parent and Merger Sub shall have received a certificate of an executive officer executed on behalf of the Company, certifying Company by its Chief Executive Officer or Chief Financial Officer confirming that the conditions set forth in Section 7.2(aclauses (a), (b) and (c) of this Section 7.2(b) 7.2 have been duly satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment (or waiver Parent’s waiver, to the extent permitted by Law), at or prior to the Effective Time Closing, of each of the following additional conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(a)Section 3.01, 3.4 Section 3.02, Section 3.04, Section 3.06 and 3.18 Section 3.25, the representations and warranties of the Company contained in this Agreement shall be true and correct in all respectsrespects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and, subject to Section 5.17(a)(ii), on and as of the Closing Date with the same effect as though made at and as of such date (ii) the except those representations and warranties that address matters only as of a specified date shall be so true and correct as of such date). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02, Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.25 shall be true and correct in all material respects, in each case, respects (other than de minimis inaccuracy) on and as of the date of this Agreement hereof and, subject to Section 5.17(a)(ii), on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, determined as of such that specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) The Company licenses set forth on Section 8.02(c) of the Disclosure Schedules shall each be valid and in full force and effect, with no violations having been experienced, noted or recorded, which violations have not been cured to the satisfaction of Parent in its sole discretion as of the Closing Date, and no Proceeding pending or threatened to revoke or limit such licenses on the Closing Date. (d) The Requisite Company Vote and Company Board Recommendation shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent No holders of any outstanding shares of Company Stock as of immediately prior to the Effective Time shall have received releases and acknowledgements from each party exercised, or remain entitled to exercise, statutory appraisal rights pursuant to the Senior Debt Agreement and Nevada Act with respect to such shares of Company Stock. (h) The Company Entities shall have Cash in an amount not less than the Subordinated Debt Agreement that all liens and security interests Minimum Cash Amount. (i) The Exchange Approval shall have been released upon payment received. (j) The Company shall have delivered to Parent (or the Exchange Agent if applicable) a Letter of Transmittal properly completed and duly executed by each Stockholder (other than any Dissenting Stockholders) with respect to all the Shares and delivered to Parent Written Consents contemplated by Section 5.5(b). (k) The Company Incentive Plan shall have been terminated. (l) The Third-Party Consents shall have been received in form and substance reasonably satisfactory to Parent, and no such party of the amount of the indebtedness allocable to such partyconsent, authorization, order and approval shall have been revoked.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction fulfillment (or waiver by P▇▇▇▇▇ and Merger Sub, to the extent not prohibited by Law) at or prior to the Effective Time of each of the following conditions: (a) Each representation and warranty of the Company (i) the representations and warranties of the Company set forth contained in Sections 3.3(a3.1 (Corporate Organization), 3.4 3.3 (Authority; Execution and 3.18 of this Agreement shall be true Delivery; Enforceability) and correct in all respects, 3.19 (iiBroker’s Fees) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified without giving effect to any qualifications as to materiality or Company Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement or other than those specified in the foregoing clauses (i) and (ii) that are not so qualified similar qualifications therein, shall be true and correct in all material respects, in each case, respects as of the date of this Agreement hereof and at and as of the Effective Time Closing Date as though made on at and as of the Closing Date, except for representations and warranties that relate to a specific date or time (which need only be so true and correct as of such date or time); (unless any such representation or warranty is made only as of a specific date, ii) contained in which event such representation and warranty Section 3.2 (Capitalization) shall be true and correct or true and correct in all material respects, as the case may be, respects except for any de minimis inaccuracies as of such specified date)the date hereof and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of any such for representations and warranties referred that relate to in this clause a specific date or time (iii) to which need only be so true and correctcorrect as of such date or time); and (iii) otherwise set forth in Article 3, in without giving effect to any qualifications as to materiality or Company Material Adverse Effect or other similar qualifications contained therein, shall be true and correct as of the aggregatedate hereof and at and as of the Closing Date as though made at and as of the Closing Date, has not hadexcept for representations and warranties that relate to a specific date or time (which need only be so true and correct as of such date or time), and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;. (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the all obligations, covenants and agreements and covenants, required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;; provided, however, (i) no failure to provide any notice required by Section 5.6 shall and (ii) no failure to perform the covenants and agreements set forth in Section 5.17 shall, in each case, in and of itself, cause the failure of the condition set forth in this Section 6.3(b) to be satisfied. (c) there A Company Material Adverse Effect shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit have occurred since the consummation date of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;this Agreement. (d) Parent The Company shall have received delivered to Parent a certificate certificate, dated as of the Closing Date and signed by an executive officer of the Company, certifying to the effect that the conditions set forth in Section 7.2(aSections 6.3(a), 6.3(b) and Section 7.2(b6.3(c) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(a)Section 3.01, 3.4 Section 3.02(a) and 3.18 Section 3.04, the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (iSection 3.01, Section 3.02(a) and (ii) that are not so qualified Section 3.04 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true determined as of that specified date in all respects); (b) The Company shall have duly performed and correct or true and correct complied in all material respectsrespects with all agreements, as covenants and conditions required by this Agreement and each of the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) Ancillary Documents to be so true performed or complied with by it prior to or on the Closing Date; (c) The Majority Shareholder shall have duly performed and correctcomplied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; (d) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby; (e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, has not hadwith or without the lapse of time, and would not could reasonably be expected to have, result in a Material Adverse Effect; (bf) If, and only if, all other conditions as set forth in this Section 8.02 have been satisfied, immediately prior to the Closing, the Company shall make a repayment of the Indebtedness to AgeX in the amount of $250,000 (the “AgeX Repayment”). Concurrently with this AgeX Repayment, AgeX shall convert any and all outstanding Indebtedness owed by the Company to AgeX as of the Closing Date (including all principal and accrued interest) into a number of Shares (the “AgeX Loan Shares”) (such conversion is referred to as the “AgeX Loan Conversion”) at a conversion price of $0.0541 per share. Upon such conversion, AgeX shall execute and deliver to Parent a statement, confirming that all outstanding Indebtedness owed by the Company to AgeX has been cancelled, all obligations thereunder have performed been paid in all material respects the obligationsfull, and complied in all material respects with liens, if any, securing the agreements and covenantsCompany’s obligations thereunder have been released (the “AgeX Loan Payoff Statement”). The Company Charter Document shall be amended, required if applicable, to be performed by, or complied with by, it under this Agreement at or prior increase the authorized number of Shares of the Company to an amount sufficient to permit the Effective TimeCompany to issue the AgeX Loan Shares; (cg) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent The Majority Shareholder shall have received a certificate of an executive officer of the Companysettled all outstanding legal bills owed to Thompson, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination AgreementWelch, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and S▇▇▇▇▇ & G▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent LLP, including those that he is unwilling to continue employment are incurred in connection with the relevant employing entity specified in the Employment Agreement following the Effective Timetransactions contemplated by this Agreement; (fh) Parent All documents provided to the Company by Mor & Gold, the Israeli law firm handling the dissolution of the Israeli Sub, shall have received documentation reasonably satisfactory been signed and returned to it evidencing Mor & Gold, and Mor & Gold shall have confirmed that all outstanding indebtedness and all other obligations under the dissolution process has commenced (the “Dissolution Commencement Confirmation”). For the avoidance of doubt, the Company shall not be obligated to complete the dissolution of the Israeli Sub before the Closing if a tax obligation to the State of Israel is required to be discharged as a condition to the dissolution; (i) A termination has been executed by and among AgeX, Lineage and the Amended Company, terminating any service and Restated Credit cost sharing agreements among AgeX, Lineage and the Company, including but not limited to, that certain LifeMap Services Agreement entered into on November 8, 2017 by and among the Operating PartnershipCompany, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent Lineage and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified AgeX (the “Senior Debt Services Agreement”), and discharging and releasing the Company from any past or future obligations thereunder, including but not limited to, any fees that have incurred but not been paid under the Services Agreement (the “Services Termination Agreement”); and and (iij) the Subordinated Credit Agreement The Company shall have been paid, discharged or otherwise terminated so that delivered each of the Senior Debt Agreement and closing deliverables set forth in Section 2.03(a); provided that the Subordinated Debt Agreement shall have been effectively terminated closing deliverable set forth under Section 2.03(a)(xii) may be delivered by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party Majority Shareholder pursuant to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partySection 6.04 hereof.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 (b) and 3.18 of this Agreement (c) shall each be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, respects in each case, case as of the date of this Agreement and as of the Effective Time as though made on and as of such date the Effective Time (unless any such representation or warranty is made only as except those representations and warranties that speak of a specific an earlier date, in which event such representation and warranty shall be true and correct or as of such earlier date) (provided, that for purposes of this Section 7.2(a) only, the representations and warranties of the Company set forth in Sections 3.3(a), (b) and (c) shall collectively be deemed satisfied if the aggregate number of outstanding shares of Company Common Stock underlying the Company Options and Restricted Stock Units set forth in Sections 3.3(a), (b) and (c) is inaccurate by no more than an immaterial amount) and (ii) the representations and warranties of the Company in this Agreement (other than the representations and warranties set forth in Sections 3.3(a), (b) and (c)) shall be true and correct (without giving effect to any “materiality” or Material Adverse Effect qualifications contained therein), in all material respectseach case as of the date of this Agreement and as of the Effective Time as though made as of the Effective Time (except those representations and warranties that speak of an earlier date, as the case may be, which shall be true and correct as of such specified earlier date), except where the failure of any such representations and warranties referred to in this clause (iiiii) above to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, result in a Company Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, by or complied with by, by it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an the chief executive officer or the chief financial officer of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b) have been satisfied; and (d) there shall not be any action, investigation, proceeding or litigation instituted, commenced, pending or threatened by or before any Governmental Entity relating to the Merger, the Mortgage Business Sale or any of the other transactions contemplated by this Agreement in which a Governmental Entity is a party that would or is reasonably likely to (i) restrain, enjoin, prevent, restrict, prohibit or make illegal the acquisition of some or all of the shares of Company Common Stock by Parent or Merger Sub or the consummation of the Merger or the other transactions contemplated by this Agreement, or (ii) result in a Governmental Investigation or material Governmental Damages being imposed on Parent or the Surviving Corporation or any of their respective Affiliates; (e) each of The Merger and the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination other transactions contemplated by this Agreement and the Employment Mortgage Business Sale Agreement shall be have been approved by the New York State Insurance Department; (f) The consents, approvals, notifications, or certificates listed in force Section 7.2(f) of the Company Disclosure Schedule hereto shall have been obtained and effect at the Effective Timecopies of such consents shall have been delivered by Company to Parent; (g) The Company shall have filed all forms, reports, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling other documents required to continue employment be filed with the relevant employing entity specified in the Employment Agreement following SEC with respect to periods from January 1, 2006 through the Effective Time; (fh) Parent The 2006 Audited Company Financial Statements shall have received documentation not reflect a consolidated financial condition or results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures that is different from the consolidated financial condition or results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures reflected in the Unaudited Company Financial Statements, unless such difference would not constitute, or would not reasonably satisfactory be expected to it evidencing that all outstanding indebtedness and all other obligations under constitute, a Material Adverse Effect; (i) All of the Amended and Restated Credit conditions to the obligations of the purchaser under the Mortgage Business Sale Agreement among to consummate the Operating Partnership, Mortgage Business Sale (other than the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and condition that the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement Merger shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement consummated) shall have been effectively terminated by the parties thereto satisfied or waived in accordance with its termsthe terms thereof, and that all liens such purchaser shall otherwise be ready, willing and security interests in connection therewith have been releasedable (including with respect to access to financing) to consummate the transactions contemplated thereby; and (gj) Parent The Company shall have received releases and acknowledgements from each party delivered to the Senior Debt Agreement Mortgage Business Purchaser Acknowledgement Agreements fully executed by the applicable Agency and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of Company and/or the amount of the indebtedness allocable to such partyapplicable Mortgage Entity.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties of the Company set forth in Sections 3.3(aSection 3.1 (Organization and Qualification; Subsidiaries), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.3(a) (Capitalization), Section 3.4 (Authority), Section 3.5 (No Conflict; Required Filings and 3.18 of this Agreement Consents) and Section 3.25 (Brokers) shall be true and correct accurate in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time date of the Condition Satisfaction as if made at and as of such time (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and accurate as of such specified date); and (ii) each of the other representations and warranties of the Company shall be true and accurate (disregarding any qualifications as to materiality or Material Adverse Effect contained therein), in each case, as of the date of this Agreement and as of the date of the Condition Satisfaction as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and correct or true and correct in all material respects, as the case may be, accurate as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iiiii) to be so true and correctaccurate, has not had and would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; provided that a breach of Section 5.1 that occurs after the date of the Condition Satisfaction and prior to the Closing shall not result in the failure of the condition contained in this Section 7.2(b) unless such breach of Section 5.1 occurred as a result of the Company’s gross negligence, willful misconduct or willful or intentional breach; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, since the date of this Agreement and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating prior to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) date that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.two

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated hereby shall be further subject to the satisfaction or waiver satisfaction, at or prior to the Effective Time Closing Date, of the following conditions:conditions (any of which may be waived by Parent and Merger Sub): (a) Each of the agreements of the Company to be performed at or prior to the Closing Date pursuant to the terms hereof shall have been duly performed and the Company shall have performed all of the acts required to be performed by it at or prior to the Closing Date by the terms hereof unless all such failures together in their entirety, would not, individually or in the aggregate, have a Material Adverse Effect with respect to the Company or the consummation of the transactions contemplated by this Agreement. (ib) the The representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 Article 4 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on Closing except where failure to be so true and as correct would not (in the aggregate for all representations and warranties of the Company) have a Material Adverse Effect (other than representations and warranties that are already so qualified, which in each such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty case shall be true and correct or as written), and except for (i) changes specifically contemplated by this Agreement and (ii) those representations and warranties that address matters only as of a particular date (which shall remain true and correct in all material respects, as the case may be, as of such specified date); provided, except where however, that the failure Company shall not be deemed to be in breach of any such representations or warranties by taking any action permitted (or approved by Parent) under Section 8.2. Parent and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company Merger Sub shall have performed in all material respects the obligationsbeen furnished with a certificate, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding executed by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive duly authorized officer of the Company, dated the Closing Date certifying that in such detail as Parent and Merger Sub may reasonably request as to the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each fulfillment of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyforegoing conditions.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be further and the other transactions contemplated herein are subject to the satisfaction or waiver at or prior to the Effective Time of the following conditionsconditions on or before the Closing Date: (a) (i) the The representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Article III hereof shall be true and correct in all material respects, in each case, as of the date of this Agreement respects at and as of the Effective Time as though made on Closing Date (except for those representations and as of such date (unless any such representation warranties which are qualified by “materiality”, “Material Adverse Effect” or warranty is made only as of a specific datewords to similar effect, in which event case each such representation and warranty shall be true and correct or in all respects) at and as of the Closing Date as though then made and as though the Closing Date had been substituted for the date of this Agreement throughout such representations and warranties, other than those representations and warranties that address matters as of particular dates, in which case such representations and warranties shall be true and correct in all material respects, as the case may be, respects as of such specified date), particular dates (except where the failure of any such for those representations and warranties referred to in this clause (iii) to be so true and correctwhich are qualified by “materiality”, in the aggregate, has not had, and would not reasonably be expected to have, a “Material Adverse Effect” or words to similar effect, in which case each such representation and warranty shall be true and correct in all respects); (b) the The Company shall have performed in all material respects all of the obligations, covenants and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective TimeClosing; (c) there The applicable waiting periods, if any, under the HSR Act shall not have expired or been terminated without any conditions; (d) No judgment, decree or order shall be instituted or pending any action, investigation or proceeding in effect by any Governmental EntityAuthority, and there shall not be instituted or pending any action or proceeding threatened in writing by any other personGovernmental Authority, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit that would prevent the consummation of the Closing or that would impose limitations on such Closing and/or the ability of any party hereto to perform its obligations hereunder or operate the business of the Company or the Company Subsidiaries; (e) This Agreement and the Merger or seeking to obtain material damages relating to and the transactions other agreements contemplated hereby shall have been approved and adopted by the Merger, (ii) seeking to restrain, prohibit or materially delay Requisite Shareholder Approval in accordance with the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion terms of the business or assets California Code, the articles of incorporation of the Company and its subsidiariesthe by-laws of the Company; (f) The consents, taken as a wholeapprovals, or waivers and notices set forth on Section 8.01(f) of Parent or the Company Disclosure Schedule shall have been obtained and correct and complete copies of such consents, approvals, waivers and notices shall have been delivered to Parent; (g) From the date of this Agreement, there shall not have occurred any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (dh) Parent shall have received the following documentation: (i) a certificate of an executive officer the secretary of the Company attaching (A) a certificate of good standing of the Company, dated not more than ten (10) Business Days prior to the Closing Date, from the Secretary of State of the State of California, (B) a copy of the current by-laws (or equivalent governing documents) of the Company, (C) a copy of the articles of incorporation, certified by the Secretary of State of the State of California, (D) a true, correct and complete copy of the resolutions of the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which the Company is a party and the consummation of the transactions contemplated thereby and (E) a correct and complete list of Holders that have not voted in favor of the Merger as of the Closing; (ii) a certificate, dated the Closing Date, executed by an authorized officer of the Company certifying that the conditions precedent set forth in Section 7.2(a8.01(a), (b), (e) and Section 7.2(b(g) have been satisfied; (eiii) all Letters of Transmittal received by the Representative or the Company as of the Closing; (iv) the Payoff Letters; (v) the Company shall deliver to Parent properly executed statements in a form reasonably acceptable to the Buyer for purposes of satisfying the Buyer’s obligations under Treasury Regulations Section 1.1445-2(c)(3); (vi) evidence of termination of each of (A) the Subordinated Debt Termination Amended and Restated Registration Agreement of the Company, dated as of December 23, 2010, (B) the Shareholders Agreement and (C) the Management Services Agreement, the Trademark License Agreementdated as of June 26, the Tax Receivable Termination Agreement 2007, by and between Water Street Healthcare Management, L.P. and the Employment Agreement shall be Company; (vii) the Option Plan Amendment; (viii) an amendment, in force the form satisfactory to Parent, to the employment or letter agreement between the Company and effect at the Effective Time, and each of ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇; and (ix) written resignations of all members of the Board of Directors of the Company; (i) the board of directors of the Company (or, if appropriate, a committee thereof) shall have adopted appropriate resolutions and taken all other actions necessary to provide that, effective as of the Closing, the Precision Dynamics Corporation Cash Option Profit Sharing Plan will in all cases exclude participation by any employee of Parent (or a Subsidiary of Parent) other than an employee of the Company or any of the Company Subsidiaries; (j) The following Holders shall have voted in favor of the Merger and shall have delivered an executed Letter of Transmittal with respect to their Company Capital Stock to the Company: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Representative (in its capacity as a Holder), all other holders of Preferred Stock and all holders of Senior Stock (other than The ▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective TimePress Living Trust dated 3/2/06); (fk) Parent The Representative and the Escrow Agent shall have received documentation reasonably satisfactory executed and delivered the Escrow Agreement to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been releasedParent; and (gl) Parent Prior to the Effective Time, the Certificate of Merger shall have received releases and acknowledgements from each party to been accepted for filing with the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party Secretary of State of the amount State of the indebtedness allocable California (and evidence thereof provided to Parent). Any condition in this Section 8.01 may be waived by Parent or Merger Sub; provided, however, that no such partywaiver will be effective against Parent unless it is set forth in a writing executed by Parent.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to the Effective Time by Parent) of the following conditionsadditional conditions at or before Closing: (a) there shall not be any Dissenting Shares; (ib) the Company shall have obtained at its own expense all of the waivers, permits, consents, approvals, novations or other authorizations whatsoever, and effected all of the registrations, filings and notices which are required on the part of the Company to consummate the transactions contemplated by this Agreement, including, but not limited to, the consents set forth in Section 2.4(c) of the Disclosure Schedule, and to otherwise comply with all applicable laws and regulations in connection with the consummation of the series of transactions contemplated by this Agreement; (c) the representations and warranties of the Company and the Shareholders set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respectsmaterial respects as of the Closing except to the extent they pertain to a different date; (d) the Company and each of the Shareholders shall each have performed or complied with in all material respects its or his agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the series of transactions contemplated by this Agreement or any one of them, (ii) cause the representations and warranties series of the Company set forth in transactions contemplated by this Agreement other than those specified in the foregoing clause (i) that are qualified as or any one of them to materiality be rescinded following consummation or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respectshave, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation individually or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (bf) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior delivered to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse EffectCertificate; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases the resignations, effective as of the Closing, of each director and acknowledgements officer of the Company specified by Parent; (h) Parent shall have received such other certificates and instruments (including certificates of good standing of the Company in its jurisdiction of organization, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as Parent shall reasonably request in connection with the Closing; (i) Parent shall have received a fully executed employment agreement (including noncompete, invention assignment and non-solicitation provisions) by and between the Surviving Corporation and each of ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Read in a form reasonably satisfactory to Parent; (j) Parent shall have received for each employee an executed acknowledgement of receipt of the employee handbook of the Company; (k) Parent shall have received the Escrow Agreement, executed by the Shareholder Representative and the Escrow Agent; (l) all outstanding Options shall have been terminated; (m) Parent shall have received an executed Confidential Investor Questionnaire from each party Shareholder in the form attached hereto as Exhibit C; (n) the Company shall have obtained the Requisite Shareholder Approval of the Shareholders; (o) Parent shall have received the legal opinion of the Company’s counsel in a form reasonably satisfactory to Parent, dated as of the date of this Agreement; (p) the Company shall have no Debt; (q) Parent shall have received evidence (in form and substance reasonably satisfactory to Parent) that the Company’s investment bankers, attorneys and/or other advisors and any other similar agents and representatives have been or will be paid in full at or prior to the Senior Debt Agreement Closing (except for the Incremental Transaction Expenses payable to Healthcare Growth Partners, LLC pursuant to Section 1.8(f)(iv)), and that the Surviving Corporation will have no liability to any such parties for any costs related to the transactions contemplated by this Agreement; (r) the Company shall have purchased tail coverage on the D&O, employment practices and E&O insurance covering any claims made within six (6) years after the Closing Date that are based upon or relate to acts, events or omissions that occurred any time prior to Closing. Such tail insurance shall have deductibles and coverage amounts that are no less favorable to the Company and the Subordinated Debt Agreement Surviving Corporation as the insurance the Company had in place during the six (6) months immediately prior to Closing. In the event the coverage that all liens would be afforded to the Surviving Corporation through the purchase of the aforementioned tail coverage E&O insurance is already covered by Parent’s insurance policies as in place at Closing and security interests without any additional cost to Parent, the accrual for the cost of purchasing tail coverage E&O insurance shall be reversed for purposes of calculating the Final Balance Sheet; (s) Parent shall have been released upon payment received evidence (in form and substance reasonably satisfactory to such party of Parent) that the Company has paid a bonus to ▇▇▇▇▇▇ Read in the amount of $22,000; and (t) Parent shall have received evidence (in form and substance reasonably satisfactory to Parent) that the indebtedness allocable to such partyCompany has paid all accrued vacation in excess of 240 hours per employee.

Conditions to Obligations of Parent and Merger Sub. The -------------------------------------------------- obligations of Parent and Merger Sub to effect the Merger shall be further are also subject to the satisfaction or waiver at or by Parent prior to the Effective Time of the following conditions: (ai) The Company shall have performed all of its obligations hereunder required to be performed by it at or prior to the Effective Time, except where any failure to perform would not, individually or in the aggregate, materially impair or significantly delay the consummation of the Merger; (ii) (iA) each of the representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement which are qualified by a Company Material Adverse Effect or words of similar effect shall be true and correct (except to the extent such representations and warranties expressly relate to a specific date or as of the date hereof, in all respects, which case such representations and warranties shall be true and correct as of such date) and (iiB) each of the representations representation and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that which are not so qualified shall be true and correct in all material respects, in each case, (except to the extent such representations and warranties expressly relate to a specific date or as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific datehereof, in which event case such representation representations and warranty warranties shall be true and correct or true and correct in all material respects, as the case may be, respects as of such specified date), except where the failure of any for such representations and warranties referred to in this clause (iii) to be so true and correctinaccuracies as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect; and (iii) Parent and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this paragraph 6.2(a); (b) Since the Company date of this Agreement, no event shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, occurred which has or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Company Material Adverse Effect; provided, however, that any change, condition, event or development (i) that primarily results from this Agreement, the Merger or the announcement thereof, (ii) generally affecting the industries in which the Company operates, including changes due to actual or proposed changes in laws or regulations, or (iii) related to a general drop in stock prices in the United States, shall, for the purpose of this Section 6.2(b) only, be excluded in determining whether a Company Material Adverse Effect has occurred; (c) The Management Stockholders Agreement shall be in full force and effect; (d) All permits, licenses and other authorizations required from Governmental Entities for the consummation of the Merger; except were the lack of such permits, licenses and other authorizations would not have, individually or in the aggregate, a Company Material Adverse Effect; (de) Parent There shall not have received a certificate been any action, proceeding, application, claim, suit, judgment or order instituted or pending, entered or enforced against, the Company or any subsidiary or affiliate of an executive officer of the Company or the Merger, by any legislative body, court, government or governmental, administrative or regulatory authority or agency which would have the effect of, directly or indirectly requiring, or being reasonably likely to result in requiring, the Company, certifying Parent or Merger Sub to pay damages or other litigation costs (including settlement costs and attorney's fees) that the conditions set forth are in Section 7.2(a) and Section 7.2(b) have been satisfiedexcess of $3,500,000; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.23, the representations and warranties of the Company contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.23 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with the agreements all agreements, covenants and covenants, conditions required by this Agreement to be performed by, or complied with byby it prior to or on the Closing Date; (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby; (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedClosing; (e) each From the date of the Subordinated Debt Termination this Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ there shall not have rescinded the Employment Agreement occurred any Material Adverse Effect, nor shall any event or advised Parent that he is unwilling to continue employment with the relevant employing entity specified events have occurred that, individually or in the Employment Agreement following aggregate, with or without the Effective Time;lapse of time, could reasonably be expected to result in a Material Adverse Effect; and (f) Parent The Company shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that delivered each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto closing deliverables set forth in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partySection 2.03(a).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.24, the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.24 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. Table Of Contents 25 (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Parent The Company or Stockholder Representative shall have received releases and acknowledgements from each party delivered to Parent the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party Joinder Agreements signed by every Stockholder of the amount Company as of the indebtedness allocable to such partydate hereof.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.25, the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.25 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) there The Company shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation have delivered each of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;2.03(a). (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all All outstanding indebtedness shares of Company Class B Common Stock and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement Company Series A Convertible Preferred Stock shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.converted into Company Common Stock..

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement that are qualified by a “Company Material Adverse Effect” shall be true and correct in all respects, and (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respectscorrect, in each case, as of the date of this Agreement and in all material respects as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iiiii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Section 4.3 (Capitalization), Section 4.4 (Authority) and Section 4.23 (Brokers) shall be true and correct in all material respects as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date); (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) the Company shall have delivered to Parent and Merger Sub a certificate, dated on the Closing Date, signed by its chief executive officer or another senior officer on behalf of the Company, to the effect that the conditions contained in Sections 8.2(a), (b) and (d) have been satisfied in all respects; (d) since the date of this Agreement there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the have occurred a Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (de) Parent the Company’s Contract EBITDA for the twelve (12) months ending on July 31, 2007 shall have received a certificate of an executive officer be not less than $32 million; and (f) the Company’s Contract EBITDA for the twelve (12) months ending on October 31, 2007 shall be not less than $31 million; provided, however, that the condition set forth in this Section 8.2(f) shall be inapplicable in the event that each of the Company, certifying other conditions (other than those conditions that by their terms are to be satisfied at the conditions Closing) set forth in Section 7.2(a) 8.1 and Section 7.2(b) 8.2 shall have been satisfied; (e) each of the Subordinated Debt Termination Agreementsatisfied prior to November 7, the Trademark License Agreement2007; provided, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Timefurther, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating PartnershipMarketing Period has expired prior to November 15, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); 2007 and (ii) the Subordinated Credit Agreement failure to close prior to November 15, 2007 shall have been paid, discharged or otherwise terminated so that each not be the result of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated any failure by the parties thereto in accordance Company to fulfill its obligations or to comply with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partycovenants hereunder.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall be further are subject to the satisfaction of all the following further conditions any one or waiver more of which may be waived in writing by Parent (in its sole and absolute discretion): (a) The Company shall have duly performed or complied with, in all material respects, all of its obligations hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) at or prior to the Effective Time of the following conditions:Closing Date. (ab) (i) the The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), other than the representations and warranties set forth in Sections 3.3(a)Section 4.18 (Intellectual Property) and the Company Fundamental Representations, 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations respects at and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time Closing Date, as though if made on and as of such date (unless except to the extent that any such representation or and warranty is expressly made only as of a specific date, in which event case such representation and warranty shall be true and correct or true at and correct in all material respects, as the case may be, as of such specified specific date), except where the failure except, in each case, for any failures of any such representations and warranties referred (disregarding all qualifications and exceptions contained therein relating to in this clause (iiimateriality or Material Adverse Effect) to be so true and correct, correct that would not in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall aggregate have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;. (c) The representations and warranties of the Company set forth in Section 4.18 (Intellectual Property) (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct in all material respects at and as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date). (d) Parent The Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall have received a certificate of an executive officer be true and correct in all respects at and as of the Company, certifying that the conditions set forth in Section 7.2(a) date of this Agreement and Section 7.2(b) have been satisfied; (e) each as of the Subordinated Debt Termination AgreementClosing Date, as if made as of such date (except to the Trademark License Agreementextent that any such representation and warranty is expressly made as of a specific date, the Tax Receivable Termination Agreement in which case such representation and the Employment Agreement warranty shall be in force true and effect correct at the Effective Timeand as of such specific date), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partythan de minimis inaccuracies.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(a)this Agreement, 3.4 the Ancillary Documents and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects, respects (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are case of any representation or warranty qualified as to by materiality or Material Adverse Effect shall be true and correct and (iiiEffect) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct or in all material respects, respects (in each case, the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.05(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.06 and 3.18 Section 3.25, the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.25 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) The Company and the Company Members shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby them prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub or any Member or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a2.03(a) and Section 7.2(b) have been satisfied;on or before the respective dates set forth for each deliverable. (eg) each Parent and certain Affiliates of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇M▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded negotiated in good faith and agreed upon the Employment Agreement or advised Parent that he is unwilling definitive form of leases pursuant to continue employment with which the relevant employing entity specified Surviving Company shall lease the Real Property and storage tank located thereon used by the Business and located in Fort L▇▇▇▇▇, Colorado, including the Employment Agreement following option for the Effective Time;Surviving Company to purchase such assets. (fh) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness completed its due diligence investigation of the Company and all other obligations under the Business, and shall, in its sole but reasonable discretion, be satisfied with the results of such due diligence investigation, including, but not limited to, (i) satisfactory completion of Parent’s diligence investigation relating to the Amended storage, handling and Restated Credit Agreement among transport of Hazardous Materials by the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); Company and (ii) confirmation from Parent’s independent registered public accounting firm that it will be able to audit the Subordinated Credit Agreement shall have been paidFinancial Statements and prepare pro forma financial statements within the period required by the Securities and Exchange Commission provided, discharged or otherwise terminated so however, that each any change in the information disclosed by the Company to Parent in connection with Parent’s due diligence investigation between the date of the Senior Debt this Agreement and the Subordinated Debt Agreement Closing Date that is not material shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party not constitute cause for failure of satisfaction of the amount of the indebtedness allocable to such partycondition set forth in this Section 7.02(h).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction (or waiver, if permissible under applicable Law, provided, however, that any such waiver at shall not release or relieve any party from any liability arising from the matters (including any breach of this Agreement) which caused the failure of such conditions) on or prior to the Effective Time Closing Date of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement (other than the Specified Representations and those qualified by “materiality”, “Company Material Adverse Effect” or other similar qualifications) shall be true and correct in all material respects, (ii) the taken as a whole together with those representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or by “materiality”, “Company Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement Effect” or other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respectssimilar qualifications, in each case, both as of the date of this Agreement and as of the Effective Time as though made on and as of such date time (unless any other than such representation or warranty is representations and warranties which are made only as of a specific another date, in which event shall be so true and correct as of such representation and warranty date); (ii) each of the Specified Representations shall be true and correct in all respects both as of the date of this Agreement and as of the Effective Time as though made on and as of such time (other than such representations and warranties which are made as of another date, which shall be so true and correct as of such date); and (iii) the representations and warranties of the Company set forth in this Agreement that are qualified by “materiality”, “Company Material Adverse Effect” or other similar qualifications shall be true and correct in all material respects, respects both as of the case may be, date of this Agreement and as of the Effective Time as though made on and as of such specified date), except where the failure of any time (other than such representations and warranties referred to in this clause (iii) to which are made as of another date, which shall be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effectcorrect as of such date); (b) the Company shall have complied with and performed in all material respects respects, individually and in the obligationsaggregate, each obligation and complied in all material respects with the agreements and covenants, covenant required to be performed by, or complied with by, by it under this Agreement at on or prior to the Effective TimeClosing Date; (c) there shall not be instituted or pending have occurred any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all Company Material Adverse Effect or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise event which would reasonably be expected to have result in a Company Material Adverse Effect; (d) Parent shall have received a copy of the FDA Minutes; (e) Parent and Merger Sub shall have received a certificate (the “Company Closing Certificate”), signed on behalf of an the Company by the chief executive officer or chief financial officer of the Company, certifying that as to the conditions satisfaction of the matters set forth in Sections 5.2(a) through 5.2(d); (f) the Company shall have complied with the obligations set forth in Section 7.2(a) 13.4 of the SK License to provide to SK Bio, prior to the Closing, a summary update of the most recent current report consistent with the provisions of Section 7.3 of the SK License, and Section 7.2(b) SK Bio shall have been satisfiedconsented to the transactions contemplated hereby in a form reasonably acceptable to Parent; (eg) Parent shall have received resignation letters effective as of the Closing Date executed and delivered by each of the Subordinated Debt Termination Agreementofficers and directors of the Company, in substantially the Trademark License Agreementform of Exhibit D attached hereto, the Tax Receivable Termination Agreement and the Employment Agreement Company shall have received a general release of claims from at least 75% of the Terminated Employees in a form reasonably acceptable to Parent; (h) there shall not be any legal, administrative, arbitral or other proceeding threatened or pending before any Governmental Authority in force and effect at which a Governmental Authority is a party that would or would reasonably be expected to: (i) restrain, enjoin, prevent, prohibit or make illegal the Effective Time, and consummation of the Merger or the other transactions contemplated by this Agreement; or (ii) impose limitations on the ability of Parent effectively to exercise full rights of ownership of all shares of the Surviving Corporation; (i) Parent shall have received an opinion letter of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded Law Group, dated as of the Employment Agreement or advised Parent that he is unwilling to continue employment with Closing Date, in substantially the relevant employing entity specified in the Employment Agreement following the Effective Timeform of Exhibit E attached hereto; (fj) Parent the Required Stockholder Vote shall have received documentation reasonably satisfactory to it evidencing that been obtained and the approval of this Agreement and the Merger by the stockholders of the Company representing all of the Company’s outstanding indebtedness voting power shall have been obtained and all other obligations under remain in full force and effect; (ik) the Amended Company shall deliver to Parent: (a) a statement dated not more than thirty (30) days prior to the Closing Date conforming to the requirements of Section 1.897-2(h) and Restated Credit Agreement among Section 1.1445-2(c)(3) of the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”)United States Treasury Regulations; and (iib) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each notification to the Internal Revenue Service required under Section 1.897-2(h)(2) of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been releasedUnited States Treasury Regulations; and (gl) Parent Aerial and the Company shall have received releases executed and acknowledgements from each party delivered to Parent the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyTransition Services Agreement.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall be further are subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the representations Each representation and warranties warranty of the Target Company set forth contained in Sections 3.3(a), 3.4 and 3.18 Article 3 of this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification), shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and respects as of the Effective Time Time, as though if made on at and as of such date time (unless except to the extent that any such representation or warranty warranty, by its terms, is made only as of expressly limited to a specific date, in which event case such representation and or warranty shall not be true and correct as of such date), and the failure of such representation or warranty to be true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse EffectEffect on the Target Company; (b) the The Target Company shall have performed in all material respects the obligations, and complied all of its agreements contained in all material respects with the agreements and covenants, this Agreement required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time, and such failure has not had or would not reasonably be expected to have a Material Adverse Effect on the Target Company; (c) there The Target Company shall have obtained the consent or approval of each person whose consent or approval shall be required to consummate the transactions contemplated hereby under any indenture, mortgage, evidence of indebtedness, lease or other agreement or instrument to which the Target Company is a party, except where the failure to obtain the same would not reasonably be instituted expected, individually or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegalin the aggregate, to delay materially have a Material Adverse Effect on the Target Company or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to upon the transactions contemplated by this Agreement; and (d) All necessary consents or authorizations from Governmental Entities which may be required in connection with the Mergertransactions contemplated hereby, (ii) seeking shall have been received, unless the failure to restrainreceive any such consent or authorization would not have a Material Adverse Effect on the Target Company or the transactions contemplated by this Agreement, prohibit and such consents or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or authorizations shall not contain any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise conditions which would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of Effect on the Company, certifying that Target Company or the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;transactions contemplated by this Agreement. (e) each of No Material Adverse Effect shall have occurred with respect to the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;Target Company. (f) Parent shall have received documentation reasonably satisfactory to it evidencing sufficient evidence that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall fees described in Section 3.15 have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated paid in full by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; andTarget Company prior to the Closing. (g) Parent The Target Company shall have received releases delivered such officer's certificates as Parent may reasonably request. The form, scope and acknowledgements from each party substance of all legal and accounting matters contemplated hereby and all closing documents delivered pursuant hereto shall be reasonably acceptable to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyParent's counsel.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger ▇▇▇▇▇▇ Sub to effect consummate the Merger shall be further transactions contemplated by this Agreement is subject to the satisfaction satisfaction, or the waiver at or prior to the Effective Time in Parent’s sole and absolute discretion, of all the following further conditions: (a) The Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations hereunder required to be performed or complied with (iwithout giving effect to any “in all material respects” qualifiers contained therein) by the Company at or prior to the Closing Date. (b) The representations and warranties of the Company set forth contained in Sections 3.3(athis Agreement (without giving effect to any materiality or “Material Adverse Effect” or similar qualifications therein), 3.4 and 3.18 of this Agreement other than the Company Fundamental Representations, shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and, after taking into account the completion of the Restructuring and full compliance with the Supply and License Agreement and/or the Shared Services Agreement, as of the Effective Time Closing Date, as though if made on at and as of such date (unless except to the extent that any such representation or and warranty is made only as of a specific date, in which event case such representation and warranty shall be true and correct or true at and correct in all material respects, as the case may be, as of such specified specific date), except where the failure of any for, in each case, such representations and warranties referred to in this clause (iii) failures to be so true and correct, in the aggregate, has not had, and correct as 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 the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time;. (c) The Company Fundamental Representations shall be true and correct in all respects at and as of the date of this Agreement and, after taking into account the completion of the Restructuring and full compliance with the Supply and License Agreement and/or the Shared Services Agreement, as of the Closing Date, as if made at and as of such date (except to the extent that any such representation and warranty is made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date). (d) Since the date of this Agreement, there shall not have occurred and be instituted or pending continuing any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets Effect in respect of the Company and its subsidiaries, taken as a wholeGroup that individually, or of Parent together with any other Effect, has had or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;Effect on the Company. (de) Parent shall have received a certificate certificate, dated as of an executive officer the Closing Date, signed by the Chief Executive Officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each such Person’s capacity as an officer of the Subordinated Debt Termination AgreementCompany and not in such Person’s individual capacity, certifying the Trademark License Agreementaccuracy of the provisions of the foregoing clauses (a), the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time(b), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;(c) of this Section 9.2. (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness a certificate, dated as of the Closing Date, signed by the Secretary of the Company, in such Person’s capacity as an officer of the Company and all other obligations under not in such Person’s individual capacity, attaching true, correct and complete copies of: (i) the Amended and Restated Credit Agreement among Company Articles of Incorporation, certified as of a recent date by the Operating Partnership, Secretary of State of the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”)State of Ohio; and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Senior Debt Agreement Company approving this Agreement, the Additional Agreements to which the Company is a party and the Subordinated Debt Agreement shall have been effectively terminated transactions contemplated hereby and thereby and the G3 Stockholder Written Consent; and (iv) a certificate of good standing of the Company, certified as of a recent date by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; andSecretary of State of the State of Ohio. (g) Each of the Company, G3, Arbor Lake Capital and the G3 Securityholders, as applicable, shall have duly executed and delivered to Parent a copy of each Additional Agreement to which the Company, G3 or such G3 Securityholder, as applicable, is a party. (h) G3 and Arbor Lake Capital shall have delivered to Parent a duly executed IRS Form W-9; provided, however, notwithstanding anything to the contrary, in the event the Company fails to deliver such certificate, the transaction shall nonetheless be able to close and Parent shall be entitled to make a proper withholding of Tax pursuant to Section 3.6. (i) The Company shall have received releases obtained each Company Consent set forth on Schedule 4.8. (j) The Company shall have delivered to Parent the financial statements required to be included in the Parent SEC Documents and acknowledgements from each party the 2022 Audited Financial Statements prior to March 15, 2023. (k) G3 and Arbor Lake Capital shall have entered into the Company Lock-Up Agreement with respect to the Senior Debt Merger Consideration Shares covered thereby. (l) G3 and the Company shall have complied with the terms of the Contribution Agreement and the Subordinated Debt Agreement that all liens and security interests Restructuring shall have been released upon payment completed. (m) G3 and the Company shall have agreed to such party of enter into the amount of Supply and License Agreement and the indebtedness allocable to such partyShared Services Agreement.

Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) there shall not have occurred any change, occurrence or development that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect; (ib) the representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect”, “in all material respects”, “in any material respect”, “material”, or “materially”) at such time (ii) except to the extent expressly made as of an earlier date, in which case as of such earlier date), in each case except where all failures of the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correctcorrect would not, or would not reasonably be expected to, in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect; (bc) the Company shall have performed in all material respects the obligations, each obligation and complied in all material respects with each agreement or covenant of the agreements and covenants, Company required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse EffectAgreement; (d) the outstanding indebtedness of the Company as of the Closing Date shall not exceed Four Million Three Hundred Forty-Four Thousand Four Hundred Forty-Five Dollars ($4,344,445.00); provided, that, if the Closing does not occur on or before July 15, 2011, the Company shall be permitted to incur $500,000 of additional indebtedness with a per annum interest rate of not more than 12% for every 30 day period after such date; (e) the Parent shall have received a certificate executed on behalf of an the Company by the chief executive officer or chief financial officer of the Company, certifying that the conditions set forth in Section 7.2(aSections 7.2(b)-(a) and Section 7.2(bthrough (d) have been satisfied; (ef) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇A▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and G▇▇ ▇▇▇▇▇ shall have entered into a noncompetition and nonsolicitation agreement with the Parent in form and substance reasonably acceptable to Parent and A▇▇▇▇ ▇▇▇▇▇▇▇ and G▇▇ ▇▇▇▇▇, as applicable; (g) there shall not have rescinded the Employment Agreement occurred and be pending any general suspension of, or advised Parent that he is unwilling to continue employment with the relevant employing entity specified limitation on trading in the Employment Agreement following the Effective Timesecurities on Nasdaq; (fh) Parent U.M. AccelMed, Limited Partnership shall have received documentation reasonably satisfactory agreed in a writing acceptable to it evidencing that all outstanding indebtedness and all other obligations under the Parent to cancel its warrants to purchase an aggregate of 4,404,772 shares of common stock of the Company; (i) The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent to cancel warrants to purchase 1,239,396 and 210,961 shares of common stock of the Amended Company, respectively, in exchange of an aggregate amount equal to $249,000 in shares of Parent Common Stock as determined in accordance Common Exchange Ratio set forth herein; provided that if the Parent determines in its reasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, than such $249,000 will be paid in cash; (j) The Tail Wind Fund, Ltd. and Restated Credit Agreement among Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent, with respect to certain convertible notes, that (i) a “Change in Control Transaction” (as defined in such convertible notes) will only occur upon the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); closing such transaction and (ii) the Subordinated Credit 30% premium ($206,250) to be paid upon such Change in Control Transaction will be calculated on the date of signing this Agreement shall have been paidbut will be paid to The Tail Wind Fund, discharged or otherwise terminated so that each Ltd. and Solomon Strategic Holders, Inc. on the date of the Senior Debt Agreement closing of the Change in Control Transaction or the date the Change in Control Transaction is terminated and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto 50% of such 30% premium will be paid in shares of Parent Common Stock as determined in accordance Common Exchange Ratio, with the balance payable in cash; provided that if the Parent determines in its termsreasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, and that all liens and security interests than such 30% premium ($206,250) will be paid in connection therewith have been releasedcash; and (gk) Parent Mizrahi Tefahot Bank Ltd. shall have received releases and acknowledgements from each party agreed in a writing acceptable to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment Parent to such party receive $225,000 in cash in lieu of 350,000 shares of common stock of the amount Company pursuant to a certain warrant agreement with the Company in connection with the closing of the indebtedness allocable to such partytransactions contemplated hereby.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger shall be is further subject to the satisfaction (or waiver by Merger Sub, if permissible under Law) at or prior to the Effective Time Closing of the following conditions: (a) (i) the representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 and 3.18 of this Agreement (i) Section 4.21 shall be true and correct accurate in all respects, respects and (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect Section 4.1 through Section 4.20 shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, accurate as of the date of this Agreement and as of the Effective Time as though made on and as of such date the Closing Date (unless any such representation or warranty is made other than those representations and warranties that address matters only as of a particular date or only with respect to a specific dateperiod of time, in which event such representation representations and warranty shall warranties need only be true and correct or true and correct in all material respects, as the case may be, accurate as of such specified datedate or with respect to such period); provided, except where however, that the condition set forth in Section 7.2(a)(ii) shall be deemed to have been satisfied unless the impact of the failure of any of such representations and warranties referred (when read without exception or qualification as to in this clause (iiimateriality or Material Adverse Effect) to be so true and correct, in the aggregate, accurate has not had, and would not reasonably be expected to have, had a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and or complied in all material respects with the all agreements and covenants, or covenants required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective TimeClosing; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received delivered to Parent a certificate of certificate, dated the Closing Date, signed by an executive officer of the Company, Company certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (d) not more than 20% of the shares of Company Common Stock outstanding immediately prior to the Effective Time (for this purpose assuming the exercise for Company Class A Common Stock immediately prior to the Effective Time of all then outstanding Company Options) shall be Dissenting Shares; and (e) each from the date of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination this Agreement and the Employment Agreement shall be in force and effect at through the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ there shall not have rescinded the Employment Agreement or advised Parent occurred any event that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyhas had a Material Adverse Effect.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement that are qualified as to Company Material Adverse Effect shall be true and correct in all respects, and (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and case as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iiiii) to be so true and correct, in the aggregate, has not had, had and would not reasonably be expected to have, have a Company Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, by or complied with by, by it under this Agreement at or prior to the Effective TimeClosing Date; (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer the Chief Executive Officer, President or Vice President of the Company, certifying that the conditions set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied;; and (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (fd) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnershipopinion, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each based on appropriate representations of the Senior Debt Agreement Company and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its termsParent, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party of King & Spalding, counsel to Parent, to the Senior Debt Agreement and effect that the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the amount of the indebtedness allocable to such partyCode.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the Company Fundamental Representations, the representations and warranties of the Company set forth and its Subsidiaries contained in Sections 3.3(a)this Agreement, 3.4 the Escrow Agreement and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects, respects (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are case of any representation or warranty qualified as to by materiality or Material Adverse Effect shall be true Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and correct as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (iii) the except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Fundamental Representations shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company and its Subsidiaries shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required documents contemplated hereby to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The first to occur of (i) the time period for which appraisal rights may be asserted under the DGCL with respect to the Merger shall have received a certificate of an executive officer expired and the Dissenting Shares shall not constitute more than 2% of the Company, certifying that sum of the conditions aggregate number of shares of Company Stock outstanding immediately prior to the Effective Time or (ii) Stockholders holding at least 90% of the sum of the aggregate number of voting shares of Company Stock outstanding immediately prior to the Effective Time shall have delivered an executed copy of the Written Consent. (g) The Company shall have delivered each of the closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be is further subject to the satisfaction or waiver at or prior to the Effective Time Closing of the following conditions: (a) Except as a result of action expressly permitted under this Agreement or expressly consented to in writing by Parent pursuant to Section 5.1, (i) the representations and warranties of the Company set forth contained in this Agreement (other than the representations and warranties of the Company contained in Sections 3.3(a)3.1, 3.4 3.2, 3.3, 3.17, and 3.18 of this Agreement 3.18) shall be true both when made and correct as of the Closing Date, as if made as of such time (except to the extent such representations and warranties are expressly made as of a certain date, in which case such representations and warranties shall be true in all respects, as of such date), except where the failure of such representations and warranties to be so true (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and (ii) the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect Sections 3.1, 3.2, 3.3, 3.17, and 3.18 shall be true in all respects both when made and correct and as of the Closing Date, as if made as of such time (iii) except to the extent such representations and warranties are expressly made as of the Company set forth a certain date, in this Agreement other than those specified in the foregoing clauses (i) which case such representations and (ii) that are not so qualified warranties shall be true and correct in all respects, as of such date). (b) The Company shall have performed, or complied with, in all material respects, in each case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets No Material Adverse Change of the Company shall have occurred since the date of this Agreement and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;continuing. (d) Parent shall have received a an officer's certificate of an executive officer duly executed by each of the Company, certifying Chief Executive Officer and Chief Financial Officer of the Company to the effect that the conditions set forth in Section Sections 7.2(a), (b) and Section 7.2(b(c) have been satisfied;. (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at Immediately prior to the Effective Time, the number of issued shares of Company Common Stock will not exceed 138,500,000 and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall the number of issued shares of Company Preferred Stock not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time;exceed 10,000,000. (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding The total indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and Company will not exceed the Subordinated Debt Agreement shall have been effectively terminated by total indebtedness reflected on the parties thereto in accordance with its termsCompany's most recent 10K published on or about May 12, and that all liens and security interests in connection therewith have been released; and2020. (g) The Company will have residual cash on hand of not less than US$ $10.00. (h) Parent shall have received releases and acknowledgements from each party to completed a private placement financing transaction or SEC registered offering of shares of Parent Common Stock or Company stock generating not less than US$15,000,000 of gross proceeds at a mutually agreeable price (the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party"Parent Financing Transaction").

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further are subject to the satisfaction (or waiver in writing by Parent), at or prior to the Effective Time Time, of each of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement (i) Section 2.8(b) shall be true and correct in all respects, (ii) the representations Section 2.1 (Organization, Qualification, and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause Subsidiaries), Section 2.3 (iAuthority), Section 2.18 (Vote Required; Takeover Statutes), and Section 2.19 (Brokers) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, without regard to any “materiality” or “Company Material Adverse Effect” qualifications contained in each casethem, as of the date of this Agreement on and as of the Effective Time Agreement Date and on and as of the Closing Date, as though made on and as of such date (unless any such representation or warranty is except for representations and warranties made only as of a specific specified date, in the accuracy of which event such representation shall be determined as of that specified date), (iii) Sections 2.2(a), (b) and warranty the first sentence of Section 2.2(d) (Capitalization) shall be true and correct in all respects, on and as of the Agreement Date, except for any inaccuracies that do not in the aggregate cause the net amount required to be paid by Parent and Merger Sub in the Merger to increase by greater than a net total amount of $500,000 (in determining such $500,000 increased cost amount, there shall be a credit or reduction against increased costs resulting from inaccuracies in such representations and warranties for (x) any changes in capitalization matters that occur between the Agreement Date and the Closing Date that are favorable to the Parent such as the lapsing of any outstanding equity or contemplated synthetic equity award as a result of an employee who elects to terminate service prior to the Closing Date and (y) any inaccuracies in such representations and warranties that are favorable to the Parent), and (iv) ARTICLE II (other than the representations and warranties listed in clauses (i), (ii) and (iii) above) shall be true and correct in all material respects, without regard to any “materiality” or “Company Material Adverse Effect” qualifications contained in them, on and as of the case may beAgreement Date and on and as of the Closing Date, as though made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), except where the failure of any such representations and warranties referred to in this clause (iii) representation or warranty to be so true and correctcorrect would not, individually or in the aggregate, has not had, and would not have or be reasonably be expected to have, have a Company Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and or complied in all material respects with the agreements covenants and covenants, obligations that the Company is required to be performed by, comply with or complied with by, it to perform under this the Agreement at or prior to the Effective TimeClosing Date; (c) there Parent and Merger Sub shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets have received certificates executed on behalf of the Company and its subsidiaries, taken as a whole, by the chief executive officer or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive chief financial officer of the Company, certifying that the conditions set forth in Section 7.2(aSections 5.2(a), 5.2(b) and Section 7.2(b5.2(d) have been satisfied; (ed) each of since the Subordinated Debt Termination AgreementAgreement Date, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ there shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been releasedoccurred a Company Material Adverse Effect; and (ge) Parent the Company shall have received releases and acknowledgements from each party delivered to Parent payoff letters with respect to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party indebtedness of the amount Company and its Subsidiaries for borrowed money set forth on Section 5.2(e) of the indebtedness allocable to Company Disclosure Schedule and outstanding as of the Closing and releases of all Liens securing such partyindebtedness, conditioned only on the payment of the amounts described in such payoff letters.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent's waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth Target contained in Sections 3.3(a)this Agreement, 3.4 the Ancillary Documents and 3.18 of this Agreement any certificate or other writing delivered pursuant hereto shall be true and correct in all respects, respects (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are case of any representation or warranty qualified as to by materiality or Material Adverse Effect shall be true and correct and (iiiEffect) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct or in all material respects, respects (in each case, the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the Company The Target shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it under this Agreement Merger Sub, or the Target, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Target shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.04(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger shall be further transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Effective Time Closing of each of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Sections 3.3(aSection 4.1(a)-(c), 3.4 Section 4.2, and 3.18 of this Agreement Section 4.21 shall be true and correct in all respectsmaterial respects (without giving effect to any materiality, Material Adverse Effect or other similar qualifications contained therein) at and as of the Agreement Date and at and as of the Closing Date as if made on and as of the Closing Date (iiexcept (x) in the case of Section 4.2, for de minimis inaccuracies and (y) to the extent expressly made as of an earlier date, in which case, as of such date). The other representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, respects (without giving effect to any materiality or Material Adverse Effect qualifications contained therein) as of the date of this Agreement Date and as of the Effective Time Closing Date as though made on and as of such date the Closing Date (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event such representation and warranty shall be true and correct or true and correct in all material respects, as the case may becase, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has correct would not had, have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;Effect on the Company and its Subsidiaries, taken as a whole. (b) the The Company shall must have performed and complied with in all material respects the obligationsall covenants, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;Closing Date. (c) there shall not be instituted or pending The waiting period (including any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely extension thereof) applicable to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger transactions contemplated hereby under the HSR Act or seeking any applicable antitrust and competition Laws of foreign countries to obtain material damages relating the extent set forth on Schedule 7.2(c) will have expired or been terminated. (d) None of the parties hereto will be subject to any Law then in effect enacted, issued, promulgated by a Governmental Authority of competent jurisdiction or any Order of a court of competent jurisdiction, in each case, enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by the Merger, this Agreement. (iie) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or There shall not have been any material portion of the business or assets of Material Adverse Effect on the Company and its subsidiariesSubsidiaries, taken as a whole, between the Agreement Date and the Closing that still constitutes a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, as of the Closing Date. (f) The Employment Offer Letter and Non-Competition Agreement of each of the Key Employees and the Specified Employees, respectively, shall continue to be in full force and effect as of the Closing and no Key Employee shall have provided notice of termination of his or of Parent her employment with the Company or any of its subsidiariesSubsidiaries. No fewer than [***]% of those Company employees listed on Schedule 7.2(f) (the “Employee Threshold”) shall be employed by the Company immediately prior to the Closing and shall have accepted an offer of continued employment with the Company, Parent or an Affiliate of the Company or Parent, as applicable, in a writing signed by such employees and delivered to Parent (such continuing employees, the “Continuing Employees”). None of the Key Employees shall have, and no more than [***]% of the Company employees listed on Schedule 7.2(f) shall have, revoked or rescinded their acceptances of the offer of continued employment from the Company, Parent or an Affiliate of the Company or Parent, as applicable. (g) At or prior to the Closing, the Company shall deliver, or cause to be delivered, to Parent the following items: (i) The payoff letters with respect to the Company Debt and any necessary UCC authorizations or other releases as may be reasonably required or as set forth in such payoff letters to evidence the satisfaction of such Company Debt following the satisfaction of the terms contained in each such payoff letter, in each case, in accordance with Section 6.10; (ii) A certificate of the Secretary of State of Delaware as to the good standing as of a recent date of the Company in Delaware; (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a A certificate of from an executive officer of the Company, certifying that given by him or her on behalf of the Company and not in his or her individual capacity, to the effect that, with respect to the Company, the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(b7.2(e) have been satisfied; (eiv) Original corporate record books and stock or equity record books, as applicable, of the Company and each of its Subsidiaries to the extent possessed by a third party other than the Company and its Subsidiaries as of the Closing; (v) An affidavit issued to Parent by an officer of the Company as required by Treasury Regulation Section 1.1445-2(c)(3) certifying that the Company has not been a United States real property holding corporation (as the term is defined in the Code and the Treasury Regulations promulgated in connection therewith) at any time during the five‑year period ending on the Closing Date, in form and substance reasonably satisfactory to Parent; (vi) Duly executed copies of all Consents set forth on Schedule 7.2(g)(vi) and Schedule 4.3(b), in each case in form and substance reasonably satisfactory to Parent; (vii) Evidence reasonably satisfactory to Parent that all Liens on the assets of the Company and its Subsidiaries (other than Permitted Liens) will have been released in full following the satisfaction of the terms contained in the documentation with respect to the release of such Liens, in each case, in accordance with Section 6.10; (viii) A true, correct and complete copy of resolutions adopted by the Company’s board of directors providing for the termination of the Company’s 401(k) Plan as contemplated by Section 6.12. (ix) The Spreadsheet in a form reasonably satisfactory to Parent; (x) The Expense Acknowledgements; (xi) The Stockholders’ Written Consent; (xii) The Estimated Closing Statement; (xiii) Duly executed Joinder Agreements from Sellers holding at least [***]% of the Fully Diluted Common Shares (including the Founder Stockholder) and [***]% of the Outstanding Series B Shares; (xiv) Each Promised Optionholder shall have executed and delivered to the Company and Parent a waiver and acknowledgement in the form attached hereto as Exhibit G (the “Promised Option Bonus Letter and Release”), which amounts payable thereunder shall constitute Selling Expenses under this Agreement; (xv) A waiver and acknowledgement in the form attached hereto as Exhibit H (the “Founder Acknowledgement”) from each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement Founders and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been releasedFounder Stockholder; and (gxvi) Parent A counterpart to each Ancillary Agreement that the Company and/or the Representative is party to shall have received releases been duly executed by the Company and/or the Representative, as applicable, and acknowledgements from each party delivered to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyParent.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent's waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Sections 3.3(aSection 3.01, Section 3.02(a), 3.4 Section 3.04, Section 3.05, Section 3.06, Section 3.25, Section 3.27, Section 3.28, Section 3.29, Section 3.30, and 3.18 Section 3.31 the representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) the ). The representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 3.01, Section 3.02(a), Section 3.04, Section 3.05, Section 3.06, Section 3.25, Section 3.27, Section 3.28, Section 3.29, Section 3.30, and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 3.31 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date. (c) No Action shall have been commenced against Parent, it Merger Sub, the Company or any of its Subsidiaries, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 3.03 of the Disclosure Schedules, or otherwise required in connection with the transactions contemplated under this Agreement Agreement, shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be instituted expected to result in a Material Adverse Effect. (f) The Company shall have delivered each of the closing deliverables set forth in Section 2.03(a). (g) Holders of no more than 25% of the outstanding shares of Company Common Stock as of immediately prior to the Effective Time, in the aggregate, shall have exercised, or pending any actionremain entitled to exercise, investigation or proceeding statutory appraisal rights pursuant to Section ▇-▇▇▇-▇▇▇ of the CBCA with respect to such shares of Company Common Stock. (h) All consulting agreements (“Consulting Agreements”) by any Governmental Entitywhich the Company has agreed to provide its clients (the “Prospective Franchisors”) services related to obtaining regulatory approval to obtain marijuana dispensary licenses shall be in full force and effect, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely continue to be determined adversely in full force and effect after the Effective Time (and inure to the benefit of the Surviving Corporation) except for those that have expired in accordance with their terms. (i) All Franchise Agreements shall be in full force and effect, and shall continue to be in full force and effect after the Effective Time (and inure to the benefit of the Surviving Corporation) except for those that have expired in accordance with their terms. (j) [redacted] (k) OCG-CO-RETAIL-T-6702 TOWER, LLC, a Colorado limited liability company and OCG-CO-RETAIL-C-6702 TOWER, LLC, a Colorado limited liability company, and certain other parties shall have entered into the Lease Settlement Agreement, Parent shall have received the fully executed Lease Settlement Agreement, and the Lease Settlement Agreement shall be on terms satisfactory to Parent, in Parent’s sole and absolute discretion. (il) challenging or seeking to make illegalAny and all employment agreements, to delay materially or otherwiseand any amendments thereto, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating that were in effect prior to the transactions contemplated by Closing between the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or Company and/or any material portion of the business or assets Subsidiary of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, and any other employment agreement entered into by the Company and/or any Subsidiary of the Company, shall have been terminated on terms satisfactory to Parent in its sole and absolute discretion, and the Company shall have delivered documentation of same to Parent. (m) All officers of the Company and/or any of its Subsidiaries shall have been terminated, the Company shall have delivered documentation of same to Parent, and all such Persons shall have delivered full releases of the Company, its Subsidiaries, Parent, Merger Sub, and their respective Affiliates on terms satisfactory to Parent in its sole and absolute discretion. (n) Each of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, [redacted], ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall not have rescinded delivered to Parent full releases of the Employment Agreement Company, its Subsidiaries, Parent, Merger Sub, and their respective Affiliates on term satisfactory to Parent in its sole and absolute discretion (including, without limitation, a full release with respect to any and all employment agreements (and any amendments thereto) and any other Liabilities to any of such individuals). (o) The Company shall have delivered to Parent fully executed Option Cancellation Agreements from each Optionholder, Warrant Cancellation Agreements from each Warrantholder, Note Cancellation Agreements from each holder of a Non-Automatic Convertible Note, and Restricted Stock Unit Cancellation Agreements from each holder of Restricted Stock Units, and all such documents shall be acceptable to Parent in its sole and absolute discretion, and shall include full releases of the Company, its Subsidiaries, Parent, Merger Sub, and their respective Affiliates. (p) Each of the Principals and [redacted] shall have delivered to Parent documentation satisfactory to Parent, in its sole and absolute discretion, as proof of actual cash contributions (made by delivery of cash, check or advised wire transfer) made by each such Person to the Company and fully reflected as owing to any of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ or [redacted] in the Financial Statements of the Company or any of its Subsidiaries. (q) Parent that he is unwilling to continue employment and Merger Sub shall be satisfied, in their sole and absolute discretion, with the relevant employing entity specified in results of their due diligence investigation of the Employment Agreement following Company, and with the Effective Time;Disclosure Schedules delivered by the Company pursuant to this Agreement. (fr) Parent shall have raised at least Four Million Dollars (USD $4,000,000.00) through a private placement of its equity securities after October 1, 2020. (s) Company shall have delivered documentation to Parent, satisfactory to Parent in its sole and absolute discretion, of the settlement of the dispute between the Company and Greystone Technology Group, Inc., and the full release of any Encumbrances related thereto (including, without limitation, the judgement lien in favor of Greystone Technology Group, Inc. (t) All Subsidiaries of the Company that are not engaging in any business or other activity shall have been dissolved by the Company on terms satisfactory to Parent in its sole and absolute discretion. (u) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness leak out agreements from such of its shareholders as determined by Parent in its sole and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its termsabsolute discretion, and that all liens in a form or forms agreed to by Parent in its sole and security interests in connection therewith have been released; andabsolute discretion. (gv) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.[redacted]

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger shall be further is also subject to the satisfaction satisfaction, or waiver by Parent, at or prior to the Effective Time Time, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the The representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and shall be true and correct in all material respects as of the Effective Time as though made on and as of such date the Effective Time (unless any such representation or warranty is made only except that representations and warranties that by their terms speak specifically as of a specific date, in which event such representation and warranty the date of this Agreement or another date shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where ; and Parent shall have received a certificate signed on behalf of the failure Company by the Chief Financial Officer of any such representations and warranties referred the Company to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;foregoing effect. (b) the The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, obligations required to be performed by, or complied with by, by it under this Agreement at or prior to the Effective Time;; and Parent shall have received a certificate signed on behalf of the Company by the Chief Financial Officer of the Company to such effect. (c) From the period beginning on the date of this Agreement, there shall not be instituted have been any state of facts, event, change, effect, development, condition or pending any actionoccurrence (or, investigation with respect to facts, events, changes, effects, developments, conditions, or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating occurrences existing prior to the transactions contemplated by date hereof, any worsening thereof) that, individually or in the Mergeraggregate, (ii) seeking to restrain, prohibit has had or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have a Company Material Adverse Effect;. (d) Parent All consents or approvals of all Persons required for or in connection with the execution, delivery and performance of this Agreement, the accuracy of the representations and warranties hereunder and the consummation of the Merger shall have received a certificate of an executive officer been obtained and shall be in full force and effect, unless the failure to obtain any such consent or approval is not reasonably likely to materially and adversely impact the value of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;Company to Parent. (e) each The Company shall not be in default of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each repayment terms of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyLoan.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be are further subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions: (a) (i) the representations and warranties of the Company set forth contained in Sections 3.3(a), 3.4 4.3 and 3.18 of this Agreement 4.4 shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (i) that are qualified as except for any de minimis failure to materiality or Material Adverse Effect shall be true and correct and (iiicorrect) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement at and as of the Effective Time Closing Date as though if made on the Closing Date (except to the extent such representations and as of such date (unless any such representation or warranty is warranties are made only as of a specific date, in which event case such representation representations and warranty warranties shall be true and correct or as of such date), and (ii) all other representations and warranties of the Company contained in Article IV hereof shall be true and correct (disregarding all qualifications or limitations as to "materiality," "Company Material Adverse Effect" or words of similar import) at and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties are made as of a specific date, in all material respects, as the which case may be, such representations and warranties shall be true and correct as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) representation or warranty to be so true and correct, in the aggregate, correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time;; and (c) there shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received delivered to Parent and Merger Sub a certificate of an certificate, signed by its chief executive officer or another senior officer on behalf of the Company, certifying to the effect that the conditions set forth contained in Section 7.2(aSections 8.2(a) and Section 7.2(b8.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be satisfied in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such partyrespects.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) Other than the Fundamental Representations and the representations and warranties of the Company set forth contained in Sections 3.3(a)Section 4.06 and Section 4.12, 3.4 the representations and 3.18 warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects, (ii) ). The Fundamental Representations and the representations and warranties of the Company set forth contained in this Agreement other than those specified in the foregoing clause (i) that are qualified as to materiality or Material Adverse Effect shall be true Section 4.06 and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified Section 4.12 shall be true and correct in all material respects, in each case, respects on and as of the date of this Agreement hereof and on and as of the Effective Time Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, in the accuracy of which event such representation and warranty shall be true and correct or true and correct determined as of that specified date in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect;. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with byby it prior to or on the Closing Date; provided, it under this Agreement that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) Each of the Approvals shall have been received, in form and substance satisfactory to Parent, acting reasonably, and executed counterparts thereof shall have been delivered to Parent at or prior to the Effective Time;Closing. (ce) From September 30, 2020, to the Closing Date, there shall not be instituted have occurred any Material Adverse Effect, nor shall any event or pending any actionevents have occurred that, investigation individually or proceeding by any Governmental Entityin the aggregate, and there shall not be instituted with or pending any action or proceeding by any other personwithout the lapse of time, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would could reasonably be expected to have result in a Material Adverse Effect;. (df) Parent The Company shall have received a certificate of an executive officer delivered each of the Company, certifying that the conditions closing deliverables set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”2.03(a); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and. (g) Holders of less than 0.5% of the outstanding Company Stock on a fully diluted basis shall have exercised, or remain entitled to exercise, statutory appraisal rights pursuant to Chapter 13 of the CCC with respect to such shares of Company Stock and the Merger. (h) Parent shall have received releases and acknowledgements from each party to be reasonably satisfied that the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests Working Capital will not be less than zero Dollars ($0). (i) Indemnification Agreements shall have been released upon payment to such party duly executed and delivered by Holders who hold in the aggregate 99.5% of the amount outstanding Company Stock on a fully diluted basis, and such Indemnification Agreements shall be in full force and effect. (j) Each of the indebtedness allocable agreements referred to such partyin Section 6.10 shall have been terminated.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver Parent’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) (i) the representations and warranties The Fundamental Representations of the Company set forth in Sections 3.3(a), 3.4 and 3.18 of this Agreement shall be true and correct in all respects, (ii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clause (iSection 3.04) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (iii) the representations and warranties of the Company set forth in this Agreement other than those specified in the foregoing clauses (i) and (ii) that are not so qualified shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and as of the Effective Time Closing Date as though if made on and as of the Closing Date, (ii) Section 3.04 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date, other than Section 3.04(e), which shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date other than for de minimis inaccuracies, (iii) each of the other representations and warranties of the Company contained in ARTICLE III shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date, except (A) in the case of each of clauses (i), (ii) and (iii), representations and warranties that are expressly made as of a specific date shall be true and correct (subject to the standards set forth herein) only on and as of such date and (unless any B) in the case of clause (iii), where the failure of such representation or warranty is made only as of a specific date, in which event such representation representations and warranty shall warranties to be true and correct or true and correct in all material respects, as the case may be, as of such specified date), except where the failure of any such representations and warranties referred to in this clause (iii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;; provided, that for the purposes of clause (iii), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect. (b) the The Company shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by, or complied with by, by it under this Agreement at or prior to or on the Effective Time;Closing Date. (c) there The Company shall not be instituted or pending any action, investigation or proceeding by any Governmental Entity, and there shall not be instituted or pending any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Parent, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the consummation have delivered each of the Merger or seeking to obtain material damages relating to the transactions contemplated by the Merger, (ii) seeking to restrain, prohibit or materially delay the exercise of full rights of ownership or operation by Parent or its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or of Parent or any of its subsidiaries, (iii) seeking to impose a Burdensome Condition on Parent or any of its subsidiaries or (iv) that otherwise would reasonably be expected to have a Material Adverse Effect;closing deliverables set forth in Section 2.03(a). (d) Parent and Merger Sub shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (e) each of the Subordinated Debt Termination Agreement, the Trademark License Agreement, the Tax Receivable Termination Agreement Financing and the Employment Agreement shall be in force and effect at the Effective Time, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall not have rescinded the Employment Agreement or advised Parent that he is unwilling to continue employment with the relevant employing entity specified in the Employment Agreement following the Effective Time; (f) Parent shall have received documentation reasonably satisfactory to it evidencing that all outstanding indebtedness and all other obligations under (i) the Amended and Restated Credit Agreement among the Operating Partnership, the Lenders proceeds related thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, dated July 19, 2006, as amended, restated, supplemented or otherwise modified (the “Senior Debt Agreement”); and (ii) the Subordinated Credit Agreement shall have been paid, discharged or otherwise terminated so that each of the Senior Debt Agreement and the Subordinated Debt Agreement shall have been effectively terminated by the parties thereto in accordance with its terms, and that all liens and security interests in connection therewith have been released; and (g) Parent shall have received releases and acknowledgements from each party to the Senior Debt Agreement and the Subordinated Debt Agreement that all liens and security interests have been released upon payment to such party of the amount of the indebtedness allocable to such party.