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

Conditions to Obligations of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the satisfaction on or prior to the Effective Time, of the conditions that: (a) All representations and warranties of Target contained in this Agreement (including the Disclosure Schedule hereto) shall be true and correct as of the date when made and on and as of the Closing Date; (b) Target and the Major Shareholders, respectively, shall have performed and complied with all agreements, covenants and conditions required by this Agreement to be performed and complied with by Target or any Major Shareholder prior to or on the Closing Date; (c) Any consent from any Party that under any Contract could terminate by reason of the transactions contemplated hereby shall have been delivered to Parent and shall be in form and substance reasonably satisfactory to Parent; (d) Parent shall have received the opinion of counsel to Target, dated as of the Closing Date, in substantially the form of Annex “B” attached hereto and made a part hereof for all purposes; (e) All corporate and other proceedings taken or required to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent shall have received all such information and such counterpart originals or certified or other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective the transactions contemplated hereby; (f) Subject to Section 5.06(b) of this Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations of the Business, the Assets and the liabilities (other than liabilities of Target [and not its Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries; (g) Since the Balance Sheet Date, there shall have been no change in the Business, operations, Assets, results of operations or condition (financial or otherwise) of Target and its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; (h) Parent shall have received audited financial statements for the periods ended December 31, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (i) The Merger shall have been duly approved by the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights as described in the Parent’s Prospectus dated October 24, 2005; (j) Parent shall have filed its proxy statement relating to the Merger with and had same cleared by the SEC, and such proxy statement shall have been properly mailed to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions set forth in Sections 6.02(a) and 6.02(b) hereof have been satisfied. Such certificate shall be in form and substance reasonably satisfactory to Parent.

Conditions to Obligations of Parent to Effect the Merger. The obligation obligations of Parent and MergerCo to effect the Merger is further and the other transactions contemplated hereby and by the Transaction Documents are subject to the satisfaction of the following conditions, any one or more of which may be waived by Parent in its sole discretion at or prior to the Effective Time: (i) The (i) Company Fundamental Reps set forth in Sections 3.1, 3.2, 3.3, 3.10, 3.16, 3.17(b) and 9.1 shall be true and correct in all respects as of the Closing Date except to the extent such representations and warranties expressly relate to a specific date in which case they shall be true and correct in all respects as of such date and (ii) all other representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as of the Closing Date (provided that all such representations and warranties that are qualified by “materiality” or “Company Material Adverse Effect” shall be true and correct in all respects as of the Closing Date), except to the extent such representations and warranties expressly relate to a specific date in which case such representations and warranties shall be true and correct in all material respects as of such date (provided that all such representations and warranties that are qualified by “materiality” or “Company Material Adverse Effect” shall be true and correct in all respects as of such date). Parent shall have received a certificate to the effect set forth in the preceding sentence dated as of the Closing Date duly executed by an authorized officer of the Company. (j) No suit, action, investigation or other proceeding shall be pending or threatened before, and no preliminary or permanent injunction or other order, decree or ruling shall have been issued by, any court or other Governmental Authority of competent jurisdiction, and no statute, rule, regulation or executive order promulgated or enacted by any Governmental Authority of competent jurisdiction shall be in effect, in each case, that does any of the following or that could reasonably be expected to have any of the following effects: (i) make the consummation of the Merger or the other transactions contemplated hereby or by the Transaction Documents illegal, in whole or in part, (ii) otherwise prohibit, modify the terms of or restrict the Merger or the other transactions contemplated hereby or by the Transaction Documents, (iii) impose any equitable remedy against Parent, MergerCo or the Company in connection with the Merger or the other transactions 46 contemplated hereby or by the Transaction Documents or (iv) impose costs and expenses, or seek or award damages, equal to or greater than $150,000 in the aggregate (when considered together with all related or similar claims) against Parent, MergerCo or the Company or, if an amount of damages is not claimed, stated or plead with particularity, if such damages, costs and expenses with respect to such matters could reasonably be expected to exceed $150,000 in the aggregate. (k) The Company shall have performed or complied with, in all material respects, all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time, of . Parent shall have received a certificate to the conditions that: (a) All representations and warranties of Target contained effect set forth in this Agreement (including the Disclosure Schedule hereto) shall be true and correct preceding sentence dated as of the date when made and on and Closing Date duly executed by an authorized officer of the Company. (l) The Company shall have delivered a certificate of an authorized officer of the Company, dated as of the Closing Date;, certifying as to (i) the incumbency of officers of the Company executing documents executed and delivered in connection herewith, (ii) the copies of the Certificate of Incorporation and Bylaws of the Company, each as in effect from the date of this Agreement until the Closing Date, (iii) a copy of all minutes of the meetings or unanimous written consents of the Company Board authorizing and approving this Agreement, the Transaction Documents, the Merger and the other transactions contemplated hereby and thereby, (iv) a copy of the Executed Consent whereby the Equity Holders, as contemplated by Section 7.1(v), have adopted and approved this Agreement, the Merger and the other transactions contemplated hereby in accordance with the DGCL and the governing documents of the Company and (v) a good standing certificate of the Company from the Secretary of State of the State of Delaware and a certificate of status and entity status letter from the Secretary of State of the State of California, in each case issued within seven (7) Business Days prior to the Closing Date. (bm) Target and the Major Shareholders, respectively, The Company shall have performed delivered the Company’s Estimated Working Capital to Parent at least five (5) Business Days prior to the Closing Date. The Estimated Working Capital Adjustment shall have been finally determined in accordance with Section 2.7 on or before the Closing Date. (n) The Company shall have delivered a certificate of an authorized officer of the Company, dated as of the Closing Date, certifying as to the total number of outstanding shares of Series A Preferred Stock and complied with all agreementsshares of Common Stock as of the Closing Date and certifying that, covenants as of the Effective Time, other than such shares of Series A Preferred Stock and conditions required by this Agreement shares of Common Stock, no other Securities of the Company will be issued or outstanding. At least one (1) Business Day prior to the Closing Date, the Company shall deliver to Parent a schedule of Closing Date payments (the “Closing Date Payments Schedule”), which shall set forth (i) the payments to be performed and complied with made by Target or any Major Shareholder prior to or Parent on the Closing Date;Date to each Equity Holder, the Escrow Agent and the Equity Holders’ Representative, (ii) the amounts to be paid by Parent on behalf of the Company in connection with Closing, including amounts with respect to Indebtedness and the Company Expenses, (iii) each Common Stockholder’s Pro Rata Portion and (iv) each Indemnifying Equity Holder’s Pro Rata Portion. (co) Any consent from any Party that under any Contract could terminate by reason The consents or approvals of all Persons set forth on Schedule 7.1(g) (the transactions contemplated hereby “Required Consents”) shall have been obtained and shall be in full force and effect. (p) The Company’s lenders and other creditors shall have provided Payoff Letters and evidence of applicable lien releases and/or filings to be filed with respect to the Indebtedness and any other Encumbrances on the assets of the Company or any of its Subsidiaries, all in form and substance satisfactory to Parent. (q) No proceeding in which the Company or any of its Subsidiaries shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought by or against, or be 47 pending by or against, the Company or any of its Subsidiaries under any U.S. or state bankruptcy or insolvency Law. (r) The Equity Holders’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement. (s) The Company shall have taken, or shall have caused to be taken, all actions necessary or advisable to cancel and terminate (and payout, if applicable) (i) to the extent requested by Parent, any and all Plans effective as of the date specified by Parent, (ii) all outstanding Options, the Company’s 2005 Stock Option Plan and the Company’s 2013 Stock Option Plan and (iii) all outstanding Warrants, and shall have delivered to Parent and shall be evidence, in form and substance reasonably satisfactory to Parent;, of the same. (dt) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have executed and delivered an employment agreement with the Company, in form and substance mutually agreed upon by Parent and ▇▇. ▇▇▇▇▇▇▇▇ (the “Employment Agreement”). (u) There shall have occurred no Company Material Adverse Effect, and Parent shall have received the opinion of counsel to Target, dated as a certificate signed by an authorized officer of the Closing DateCompany to such effect. (v) All directors and officers of the Company and its Subsidiaries shall have tendered their written resignations to be effective immediately prior to the Effective Time. (w) The Company shall have delivered to Parent, on behalf of Equity Holders holding (i) at least ninety-eight (98%) of the outstanding shares of Series A Preferred Stock and (ii) at least ninety-eight percent (98%) of the outstanding shares of Common Stock, Letters of Transmittal in the form attached hereto properly completed and duly executed, which shall include, as a necessary and essential part thereof, the releases, waivers and joinders set forth in the form Letter of Transmittal attached hereto, and such other documents as may be required pursuant to such instructions, including delivery of the Certificates held by such Equity Holders. Such executed Letters of Transmittal and other documents shall be in a form reasonably acceptable to Parent. (x) Holders of no more than two percent (2%) of the outstanding shares of Common Stock and of no more than two percent (2%) of the outstanding shares of Preferred Stock shall have exercised or shall be entitled to exercise their appraisal rights in accordance with Section 2.3. (y) Each of ZM Private Equity Fund I, L.P., ZM Private Equity Fund II, L.P. and Centre ▇▇▇▇ ▇▇▇▇▇ Co-Investment Partners, LLC shall have executed and delivered to Parent a restrictive covenants agreement in substantially the form of Annex “B” attached hereto and made a part hereof for all purposes;as Exhibit E (the “Restrictive Covenants Agreements”). (ez) All corporate The Equity Holders’ Representative and Equity Holders holding at least ninety-eight percent (98%) of the Common Stock shall have executed and delivered the Equity Holders Agreement to Parent. (aa) The Company shall have provided Parent with a list of all account numbers and other proceedings taken or required to be taken in connection with identifiers for the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent accounts set forth on Schedule 3.19. (bb) The Company shall have received all such information terminated and/or amended the agreements listed on Schedule 7.1(t) and such counterpart originals or certified or taken the other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instrumentsactions set forth on Schedule 7.1(t), approvals and other documents as it may reasonably request each in a manner acceptable to make effective the transactions contemplated hereby;Parent. (fcc) Subject to Section 5.06(b) of this Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations The bylaws of the Business, the Assets and the liabilities (other than liabilities of Target [and not its Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries; (g) Since the Balance Sheet Date, there Surviving Corporation shall have been no change amended and restated by valid action of the stockholders or board of directors of the Surviving Corporation to read, as of the Effective Time, the same as the bylaws of MergerCo that were in effect immediately prior to the BusinessEffective Time, operationsuntil thereafter amended as provided by Law, Assetsthe terms of the certificate of incorporation of the Surviving Corporation or the terms of such bylaws, results except that the bylaws of operations or condition (financial or otherwise) the Surviving Corporation shall be amended to reflect that the name of Target and its Subsidiaries that has had or could reasonably the Surviving Corporation shall be expected to have a Material Adverse Effect;“FASBI, Inc.” (h) Parent shall have received audited financial statements for the periods ended December 31, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (idd) The Merger shall have been duly approved and this Agreement shall have been adopted by the requisite affirmative vote under applicable law of the Equity Holders in accordance with the DGCL and Parent’s certificate the organizational documents of incorporation the Company. (ee) Neither the Company nor any Company Subsidiary shall have been named party to any suit nor shall have received any written claim from or on behalf of any Person claiming that (i) such Person is the holder or beneficial holder of Securities of the Company or a Company Subsidiary in a greater amount than is set forth on Schedule 3.2(a), or (ii) except pursuant to a validly made claim for appraisal rights in accordance with Section 262 of the DGCL, such Person is entitled to a greater amount of consideration with respect to the Merger than is set forth on the Closing Date Payments Schedule. (ff) All waivers with respect to securities of the Company in the forms delivered by the shareholders of Company to Parent at a duly held meeting shall be valid, binding, enforceable and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering full force and effect, shall not have exercised their conversion rights been amended, waived or modified, and shall not be subject to any challenge as described in to the Parent’s Prospectus dated October 24validity, 2005;enforceability or interpretation thereof. (jgg) Parent The Company and the Equity Holders’ Representative shall have filed its proxy statement relating to the Merger with executed and had same cleared by the SEC, and such proxy statement shall have been properly mailed delivered to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions set forth in Sections 6.02(a) and 6.02(b) hereof have been satisfied. Such certificate shall be written agreement in form and substance reasonably satisfactory acceptable to Parent wherein they agree to a Move Out Indemnification Amount (as contemplated by Item 7 of Schedule 8.2(a)(x)) that is acceptable to Parent. (hh) The Company shall have delivered to Parent such other documents or instruments as Parent has reasonably requested and that are necessary to consummate the Merger and the other transactions contemplated hereby and by the Transaction Documents upon the terms set forth in this Agreement.

Conditions to Obligations of Parent to Effect the Merger. The obligation Unless waived in writing by Parent, the obligations of Parent and Acquisition Sub to effect the Merger is further shall be subject to the satisfaction on fulfillment at or prior to the Closing Date of the additional following conditions: (a) Company shall have performed in all material respects its covenants contained in this Agreement required to be performed at or prior to the Effective Time, of the conditions that:. (ab) All The representations and warranties of Target Company contained in this Agreement (including shall be true and correct when made and the Disclosure Schedule hereto) representations and warranties set forth in Article IV above shall be true and correct as of the date when Effective Time as if made and on and as of the Closing Date; (b) Target and the Major Shareholderssuch time, respectively, shall have performed and complied with all agreements, covenants and conditions required except as expressly contemplated or permitted by this Agreement Agreement, except for the representations and warranties relating to a time or times other than the Effective Time which were or will be true and correct at such time or times and except where the failure or failures of such representations and warranties to be performed so true and complied with by Target correct, individually or in the aggregate, does not result or would not result in a Material Adverse Effect without taking into consideration any Major Shareholder prior materiality or knowledge qualifier that applies to such representation or on the Closing Date;warranty. (c) Any consent from any Party that under any Contract could terminate by reason Company shall furnish Parent and Acquisition Sub a certificate dated the date of the transactions contemplated hereby shall Closing signed on its behalf by the Chief Executive Officer, President or Chief Financial Officer of Company that, to the best of their knowledge and belief after due inquiry, the conditions set forth in Section 7.3(a), and Section 7.3(b) above have been delivered to Parent and shall be in form and substance reasonably satisfactory to Parent;satisfied. (d) Parent There shall not have received occurred since the opinion date of counsel this Agreement any change, effect, circumstance or event, which together with any other changes, effects, circumstances or events since the date hereof, has had or is reasonably likely to Target, dated as of the Closing Date, in substantially the form of Annex “B” attached hereto and made have a part hereof for all purposesMaterial Adverse Effect with respect to Company; (e) All corporate The Dissenting Shares shall not constitute more than fifteen percent (15%) of the issued and other proceedings taken or required to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent shall have received all such information and such counterpart originals or certified or other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective the transactions contemplated hereby;outstanding Company Common Stock; and (f) Subject The Company Warrants shall have been sold to Section 5.06(b) the Parent. Company shall have received the written agreement of this Agreementholders under Company's Senior Subordinated Convertible Notes due January 31, Parent shall be satisfied 2009 and Company's senior lender under the Fleet Credit Agreement that upon payment in its sole discretionfull of such obligations, with its legal, financial, geological they will release and business investigations terminate all UCC liens filed against Company and/or any Company Subsidiaries and in addition will release any collateral currently in such party's possession that had been pledged to such party by Company or any of the Business, the Assets and the liabilities (other than liabilities of Target [and not its Company's Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries;. (g) Since the Balance Sheet Date, there Company shall have been no change in substantially completed its obligations regarding the Business, operations, Assets, results filing of operations or condition (financial or otherwise) of Target Tax Returns and its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; (h) Parent shall have received audited financial statements for the periods ended December 31, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (i) The Merger shall have been duly approved by the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights as described in the Parent’s Prospectus dated October 24, 2005; (j) Parent shall have filed its proxy statement relating to the Merger with and had same cleared by the SEC, and such proxy statement shall have been properly mailed to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions corporate qualification matters set forth in Sections 6.02(a) 4.1 and 6.02(b) hereof have been satisfied4.10, respectively. Such certificate shall be in form and substance reasonably satisfactory to Parent.ARTICLE 8

Conditions to Obligations of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the satisfaction on or prior to the Effective Time, of the conditions that: (a) All The representations and warranties of Target the Company contained herein shall be true and correct (without giving affect to the materiality qualifiers contained in this Agreement such representations and warranties) as of the date hereof and as of the Effective Time (including the Disclosure Schedule hereto) excluding those representations which are made as of a specific date which shall be true and correct as of such date) with the date when same effect as though made and on and as of the Closing Date;Effective Time unless the failure to be so true and correct would not in the aggregate have a Material Adverse Effect on the Company. (b) Target and the Major Shareholders, respectively, The Company shall have performed in all material respects all obligations and complied with all agreements, covenants and conditions required by this Agreement to be performed and or complied with by Target or any Major Shareholder it prior to or on the Closing Date;Effective Time. (c) Any consent The Company shall not have suffered a Material Adverse Effect from the date of this Agreement to the Closing Date (or, if the Company shall have suffered such effect, it shall have been cured). (d) No federal, state, local or foreign statute, law, ordinance, rule, regulation, decree or order, applicable to the Company or any Party of its subsidiaries, including without limitation, the Licenses and Channels of the Company and its subsidiaries, shall have been adopted or officially proposed by an applicable Governmental Entity, which would, in the aggregate, have a Material Adverse Effect on the Company. (e) Fewer than 7.5% of the outstanding Company Shares shall be Dissenting Shares. (f) The Company shall have delivered to Parent opinions, dated the Closing Date, of the Company's and its subsidiaries' legal counsel, substantially in the form of EXHIBIT G hereto. The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by its Chief Executive Officer and President or a Senior Vice President, certifying to the effects set forth in (a)-(e), and such other evidence as Parent shall reasonably request as to the satisfaction of the conditions hereto. (g) Parent shall be reasonably satisfied that under any Contract could terminate by reason of the transactions contemplated hereby do not require registration under the Securities Act (PROVIDED, that to the extent registration under the Securities Act is required as a result of actions taken by Parent (other than the actions set forth herein), then this clause (g) shall have been delivered to Parent and shall not be in form and substance reasonably satisfactory a condition to Parent; (d) Parent shall have received the opinion of counsel 's obligation to Target, dated as of the Closing Date, in substantially the form of Annex “B” attached hereto and made a part hereof for all purposes; (e) All corporate and other proceedings taken or required to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent shall have received all such information and such counterpart originals or certified or other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective consummate the transactions contemplated hereby; (f) Subject to Section 5.06(b) of this Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations of the Business, the Assets and the liabilities (other than liabilities of Target [and not its Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries; (g) Since the Balance Sheet Date, there shall have been no change in the Business, operations, Assets, results of operations or condition (financial or otherwise) of Target and its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; (h) Parent shall have received audited financial statements for the periods ended December 31, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (i) The Merger shall have been duly approved by the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights as described in the Parent’s Prospectus dated October 24, 2005; (j) Parent shall have filed its proxy statement relating to the Merger with and had same cleared by the SEC, and such proxy statement shall have been properly mailed to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions set forth in Sections 6.02(a) and 6.02(b) hereof have been satisfied. Such certificate shall be in form and substance reasonably satisfactory to Parent.

Conditions to Obligations of Parent to Effect the Merger. The obligation Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the satisfaction fulfillment of the following additional conditions on or prior to the Effective Time, of the conditions that: (a) All the Shareholders and the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) their agreements contained in this Agreement required to be performed on or prior to the Closing Date; (b) the representations and warranties of Target the Shareholders and the Company contained in this Agreement (including the Disclosure Schedule hereto) shall be true and correct in all material respects (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the date when made and on and as of the Closing Date; (b) Target Date as if made at and the Major Shareholders, respectively, shall have performed and complied with all agreements, covenants and conditions required by this Agreement to be performed and complied with by Target or any Major Shareholder prior to or on the Closing Dateas of such date; (c) Any consent from any Party that under any Contract could terminate by reason of since the transactions contemplated hereby date hereof, there shall have been delivered to Parent no changes that constitute, and no event or events shall be have occurred which have resulted in form and substance reasonably satisfactory to Parentor constitute, a Material Adverse Effect; (d) Parent shall have received the opinion of legal opinions from legal counsel to Targetthe Shareholders and the Company, dated as of the Closing Date, in substantially the a form of Annex “B” attached hereto reasonable satisfactory to Parent, and made a part hereof for all purposesas described in Section 3.8(a); (e) All corporate and other proceedings taken or required to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent Shareholders shall have received all such information and such counterpart originals or certified or other copies executed Release of such documents Claims Agreements, in the form attached hereto as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective the transactions contemplated herebyExhibit C; (f) Subject to Section 5.06(b) of this Mr. ▇▇▇▇▇▇▇, ▇▇dividually, shall have entered into a Consulting Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations of the Business, the Assets and the liabilities (other than liabilities of Target [and not its Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiariesform attached hereto as Exhibit D; (g) Since the Balance Sheet DateMr. ▇▇▇▇▇▇▇, there ▇▇dividually, shall have been no change entered into a Covenant Not to Compete Agreement, in the Business, operations, Assets, results of operations or condition (financial or otherwise) of Target and its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectform attached hereto as Exhibit E; (h) Parent the Estate, Mrs. ▇▇▇▇▇▇▇▇, ▇▇dividually, the Trust and the Trucking Company shall have received audited financial statements for entered into Covenant Not to Compete Agreements, in the periods ended December 31, 2005, together with such other financial statements and data form attached hereto as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities ActExhibit F; (i) The Merger Parent shall have been received certificates representing the Company Common Stock duly approved by the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights endorsed for transfer as described in the Parent’s Prospectus dated October 24, 2005Section 3.8(a)(i); (j) Parent shall have filed its proxy statement relating received a certificate executed by each of the Shareholders with respect to the Merger with (a) and had same cleared by the SEC, and such proxy statement shall have been properly mailed to Parent’s shareholders(b) above; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions set forth in Sections 6.02(a) and 6.02(b) hereof have been satisfied. Such certificate shall be in form and substance reasonably satisfactory to Parententered into employment agreements with Mark ▇▇▇▇▇▇▇▇▇ ▇▇▇ Terr▇ ▇▇▇▇▇▇▇▇▇.

Conditions to Obligations of Parent to Effect the Merger. The obligation obligations of Parent to effect the Merger is further shall be subject to the satisfaction on fulfillment at or prior to the Effective Time, Closing Date of the conditions thatfollowing additional conditions: (a) All representations Each representation and warranties warranty of Target the Company contained in this Agreement (including the Disclosure Schedule hereto) Agreement, without giving effect to any materiality qualifications or references to materiality therein, shall be true and correct at and as of the date when Closing Date as if made and on at and as of the Closing Date, except (i) as contemplated or permitted by this Agreement, (ii) to the extent that any such representation or warranty shall have been expressly made as of an earlier date, in which case such representation and warranty, without giving effect to any materiality qualifications or references to materiality therein, shall have been true and correct as of such earlier date, and (iii) to the extent that any and all failures of such representations and warranties to be true and correct, shall not result in a Company Material Adverse Effect; (b) Target and the Major Shareholders, respectively, The Company shall have performed and or complied in all material respects with all agreements, covenants and conditions obligations required by this Agreement to be performed and or complied with by Target them at or any Major Shareholder prior to or on the Closing Date; (c) Any consent from any Party that under any Contract could terminate Parent shall have received a certificate executed on behalf of the Company by reason the Chief Executive Officer or Chief Financial Officer of the Company to the effect set forth in clauses (a) and (b) of this Section 7.3; (i) all consents or approvals (other than Material Consents) of all Persons (other than Governmental Entities) required for or in connection with or as a result of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby shall have been delivered to Parent obtained and shall be in full force and effect, except for those the failure to obtain which would not cause a Company Material Adverse Effect or a Parent Material Adverse Effect; and (ii) all Material Consents shall have been obtained and shall be in full force and effect; (e) The Stockholders Agreement shall have been terminated and shall have no further force and effect; (f) Parent shall have received an opinion of Latham & Watkins, dated as of the date of the Closing Date, in form and substance reasonably ▇▇▇▇▇▇nce ▇▇▇▇▇▇ably satisfactory to Parent, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Latham & Watkins may receive and rely upon representations including tho▇▇ ▇▇▇tai▇▇▇ ▇▇ this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (dg) Parent shall have received the opinion of counsel Latham & Watkins in form and substance reasonably satisfactory to TargetParent (▇▇▇▇d u▇▇▇ ▇▇▇tomary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, commencing with its taxable year ended December 31, 1993, the Company was organized in substantially the form of Annex “B” attached hereto and made a part hereof for all purposes; (e) All corporate and other proceedings taken or required to be taken in connection conformity with the transactions contemplated hereby requirements for qualification and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent taxation as a REIT under the Code, and its counselmethod of operation has enabled it to meet, and counsel to Parent shall have received all such information and such counterpart originals or certified or other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective through the transactions contemplated hereby; (f) Subject to Section 5.06(b) of this Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations of the BusinessClosing Date, the Assets requirements for qualification and taxation as a REIT under the liabilities (other than liabilities of Target [and not its Subsidiaries] arising from breaches of (i) Sections 4.01(b)Code; (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries; (g) Since the Balance Sheet Date, there shall have been no change in the Business, operations, Assets, results of operations or condition (financial or otherwise) of Target and its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect;and (h) Parent Deloitte & Touche LLP shall have received audited financial statements for delivered to Parent the periods ended December 31letter described in Section 6.12, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (i) The Merger KPMG LLP shall have been duly approved by delivered to Parent the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights as letter described in Section 6.13, at the Parent’s Prospectus dated October 24, 2005; (j) Parent shall have filed its proxy statement relating to the Merger with and had same cleared by the SEC, and times provided for in such proxy statement shall have been properly mailed to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President and Treasurer of Target dated the Closing Date and certifying that the conditions set forth in Sections 6.02(a) and 6.02(b) hereof have been satisfied. Such certificate shall be in form and substance reasonably satisfactory to ParentSections.

Conditions to Obligations of Parent to Effect the Merger. The obligation Unless waived in writing by Parent, the obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the satisfaction fulfillment at or prior to the Closing Date of the additional following conditions: (a) (i) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Effective TimeClosing Date, of (ii) the conditions that: (a) All representations and warranties of Target the Company contained in this Agreement, without regard to any materiality or Material Adverse Effect qualifier contained therein, shall be true and correct Merger Agreement on and as of the date made and on and as of the Closing Date as if made at and as of the Closing Date (including the Disclosure Schedule hereto) except for any representations and warranties made as of a specified date, which shall be true and correct as of the date when made specified date), except where the failure of such representations and on and as of the Closing Date; (b) Target and the Major Shareholders, respectively, shall have performed and complied with all agreements, covenants and conditions required by this Agreement warranties to be performed true and complied with by Target or any Major Shareholder prior to or on the Closing Date; (c) Any consent from any Party that under any Contract could terminate by reason of the transactions contemplated hereby shall have been delivered to Parent and shall be in form and substance reasonably satisfactory to Parent; (d) Parent shall have received the opinion of counsel to Target, dated as of the Closing Date, in substantially the form of Annex “B” attached hereto and made a part hereof for all purposes; (e) All corporate and other proceedings taken or required to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Parent and its counsel, and counsel to Parent shall have received all such information and such counterpart originals or certified or other copies of such documents as Parent or its counsel may reasonably request. Parent shall have received such other instruments, approvals and other documents as it may reasonably request to make effective the transactions contemplated hereby; (f) Subject to Section 5.06(b) of this Agreement, Parent shall be satisfied in its sole discretion, with its legal, financial, geological and business investigations of the Business, the Assets and the liabilities (other than liabilities of Target [and correct would not its Subsidiaries] arising from breaches of (i) Sections 4.01(b); (ii) and 4.01(i) hereof involving matters occurring prior to March 22, 2005) of Target and its Subsidiaries; (g) Since the Balance Sheet Date, there shall have been no change in the Business, operations, Assets, results of operations or condition (financial or otherwise) of Target and its Subsidiaries that has had or could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect; Effect on the Company and would not materially impair the Company's ability to perform its obligations under this Agreement, and (hiii) Parent shall have received audited financial statements for the periods ended December 31, 2005, together with such other financial statements and data as shall be reasonably requested in order to enable Parent to satisfy its financial reporting obligations under the Federal securities laws, which financial statements shall comply with Regulation S-X under the Securities Act; (i) The Merger shall have been duly approved by the requisite vote under applicable law and Parent’s certificate of incorporation by the shareholders of Parent at a duly held meeting and the shareholders of Parent owning twenty percent (20%) or more of the shares sold in Parent’s initial public offering shall not have exercised their conversion rights as described in the Parent’s Prospectus dated October 24, 2005; (j) Parent shall have filed its proxy statement relating to the Merger with and had same cleared by the SEC, and such proxy statement shall have been properly mailed to Parent’s shareholders; and (k) Parent and its counsel shall have received a certificate of the President or of a Vice President of the Company to that effect; (b) there shall not have occurred since the date of this Agreement any change, effect, circumstance or event, which together with any other changes, effects, circumstances or events, has had or is reasonably likely to have a Material Adverse Effect with respect to the Company, provided, however, that without limiting the foregoing, with respect to the governmental investigations identified as Items 3, 4 and Treasurer 5 on Section 5.8(b) to the Company Disclosure Schedule, the following shall be deemed to have a Material Adverse Effect on the Company for purposes of Target dated this Section 7.3(b): (i) the Closing Date disclosure or discovery after the date of this Agreement of material adverse facts that were known to the Company at the time of signing of this Agreement and certifying not disclosed to Parent on or prior to the date of this Agreement; (ii) the disclosure or discovery after the date of this Agreement of material adverse facts that were not known by the conditions Company at the time of signing of this Agreement; or (iii) new adverse events relating to such investigation which arise after the date of this Agreement; but only if, in the case of clauses (i) through (iii), such adverse facts or events would be reasonably likely to: (a) result in a material portion of the Company and its Subsidiaries, taken as a whole, being suspended or debarred pursuant to FAR Part 9.4; or (b) otherwise materially restrict the ability of the Company and its Subsidiaries to do business with the agencies or instrumentalities of the United States with whom they currently conduct business and which account for a material portion of their consolidated revenues. Before a determination can be made that such adverse facts or events would have the effects set forth in Sections 6.02(aclauses (a) or (b), the Company shall be given at least 60 days following such disclosure, discovery or occurrence of an event to cure or otherwise avoid such suspension, debarment or restriction; (c) the Dissenting Shares shall not constitute more than ten percent (10%) of the issued and 6.02(boutstanding Company Common Stock; (d) hereof the Company and the plaintiffs in the Subject Proceedings shall have executed the Stipulations, delivered the Stipulations to each other and submitted the Stipulations to the applicable Subject Courts for approval thereby; (e) the Company shall have obtained the Requisite Consent with respect to the Consent Solicitation and the Trustee shall have executed the Amendments in connection therewith, and such Amendments shall have or shall become effective in accordance with Section 6.15; provided that Parent shall not be able to rely on the failure of the condition in this Section 7.3(e) to be satisfied if Parent shall have failed to comply in all material respects with its obligations under Section 6.15; and (f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been satisfied. Such certificate shall obtained and be in form and substance effect on the Closing Date, other than those, the failure of which to be obtained would Merger Agreement not reasonably satisfactory be expected to Parenthave, individually or in the aggregate, a Material Adverse Effect on Parent (including the Surviving Corporation).