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 obligations of Parent to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each representation and warranty of the Company contained in this Agreement, without giving effect to any materiality qualifications or references to materiality therein, shall be true and correct at and as of the Closing Date as if made 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) The Company shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by them at or prior to the Closing Date; (c) Parent shall have received a certificate executed on behalf of the Company by 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; (d) (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 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated as of the date of the Closing Date, in form and substance reasonably 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (g) Parent shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in form and substance reasonably satisfactory to Parent (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, commencing with its taxable year ended December 31, 1993, the Company was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code; and (h) Deloitte & Touche LLP shall have delivered to Parent the letter described in Section 6.12, and KPMG LLP shall have delivered to Parent the letter described in Section 6.13, at the times provided for in such Sections.

Conditions to Obligations of Parent to Effect the Merger. The obligations of Parent to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each representation and warranty of the Company contained in this Agreement, without giving effect to any materiality qualifications or references to materiality therein, shall be true and correct at and as of the Closing Date as if made 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) The Company shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by them at or prior to the Closing Date; (c) Parent shall have received a certificate executed on behalf of the Company by 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; (d) (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 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated as of the date of the Closing Date, in form and substance reasonably 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others; (g) Parent shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in form and substance reasonably satisfactory to Parent (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date, to the effect that, commencing with its taxable year ended December 31, 1993, the Company was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code; and (h) Deloitte & Touche LLP shall have delivered to Parent the letter described in Section 6.12, and KPMG LLP shall have delivered to Parent the letter described in Section 6.13, at the times provided for in such Sections.

Conditions to Obligations of Parent to Effect the Merger. The Unless ---------------------------------------------------------- waived in writing by Parent, the obligations of Parent and Acquisition Sub to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the additional following additional conditions: (a) Each representation 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. (b) The representations and warranty warranties of the Company contained in this Agreement, without giving effect to any materiality qualifications or references to materiality therein, Agreement shall be true and correct at when made and the representations and warranties set forth in Article IV above shall be true and correct as of the Effective Time as if made on and as of the Closing Date as if made at and as of the Closing Datesuch time, except (i) as expressly contemplated or permitted by this Agreement, (ii) except for the representations and warranties relating to a time or times other than the extent that any such representation Effective Time which were 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 will be true and correct as of at such earlier date, time or times and (iii) to except where the extent that any and all failure or failures of such representations and warranties to be so true and correct, shall individually or in the aggregate, does not result or would not result in a Company Material Adverse Effect; (b) The Company shall have performed Effect without taking into consideration any materiality or complied in all material respects with all obligations required by this Agreement knowledge qualifier that applies to be performed such representation or complied with by them at or prior to the Closing Date;warranty. (c) Company shall furnish Parent shall have received and Acquisition Sub a certificate executed on behalf dated the date of the Company Closing signed on its behalf by the Chief Executive Officer Officer, President or Chief Financial Officer of the Company that, to the effect best of their knowledge and belief after due inquiry, the conditions set forth in clauses (aSection 7.3(a), and Section 7.3(b) and (b) of this Section 7.3;above have been satisfied. --------------- --------------- (d) (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 There shall not have occurred since the execution, delivery and performance date of this Agreement or the consummation of the transactions contemplated hereby shall have been obtained and shall be in full force and any change, effect, except for those circumstance or event, which together with any other changes, effects, circumstances or events since the failure date hereof, has had or is reasonably likely to obtain which would not cause have 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 effectwith respect to Company; (e) The Stockholders Agreement Dissenting Shares shall have been terminated not constitute more than fifteen percent (15%) of the issued and shall have no further force and effect;outstanding Company Common Stock; and (f) Parent The Company Warrants shall have been sold to the Parent. Company shall have received an opinion the written agreement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇holders under Company's Senior Subordinated Convertible Notes due January 31, dated as 2009 and Company's senior lender under the Fleet Credit Agreement that upon payment in full of the date of the Closing Datesuch obligations, they will release and terminate all UCC liens filed against Company and/or any Company Subsidiaries and in form and substance reasonably satisfactory to Parent, substantially to the effect that, on the basis of facts, representations and assumptions set forth addition will release any collateral currently in such opinion party's possession that are consistent with the state had been pledged to such party by Company or any 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Company, the Operating Partnership and Parent or others;'s Subsidiaries. (g) Parent Company shall have received substantially completed its obligations regarding the opinion filing of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Tax Returns and corporate qualification matters set forth in form Sections 4.1 and substance reasonably satisfactory to Parent (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others)4.10, dated as of the Closing Date, to the effect that, commencing with its taxable year ended December 31, 1993, the Company was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code; and (h) Deloitte & Touche LLP shall have delivered to Parent the letter described in Section 6.12, and KPMG LLP shall have delivered to Parent the letter described in Section 6.13, at the times provided for in such Sections.respectively. ------------- ----