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

Conditions to the Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate the Contemplated Transactions and to take the other actions required to be taken by Acquiror and Merger Sub at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Acquiror, in whole or in part): (a) all of the representations and warranties of the Company set forth in this Agreement shall be true and correct with the same force and effect as if all of such representations and warranties were made at the Closing (provided, however, that to the extent such representations and warranties expressly relate to an earlier date, such representations shall be true and correct on and as of such earlier date), except for any untrue or incorrect representations or warranties that individually or in the aggregate do not have a Material Adverse Effect on the Company or any Acquired Subsidiary or on Acquiror’s rights under this Agreement; (b) the Company shall have performed or complied with all of the covenants and obligations to be performed or complied with by it under the terms of this Agreement on or prior to the Closing, except where any nonperformance or noncompliance would not have a Material Adverse Effect on the Company or any Acquired Subsidiary or on Acquiror’s rights under this Agreement; (c) the Company shall have tendered for delivery all of the certificates, documents and other items listed in Section 2.6 of this Agreement, in form and substance reasonably satisfactory to Acquiror; (d) all proceedings, corporate or otherwise, to be taken by the Company in connection with the Contemplated Transactions, and all documents incident thereto, shall be reasonably satisfactory in form and substance to Acquiror and its counsel; (e) from the date of this Agreement to the Closing, there shall be and have been no change in the financial condition, assets or business of the Company or any Acquired Subsidiary that has had or would reasonably be expected to have a Material Adverse Effect on the Company or such Acquired Subsidiary or on Acquiror’s rights under this Agreement; (f) the portion of the Aggregate Merger Consideration that otherwise would have been payable with respect to the Dissenting Shares pursuant to Section 3.1(b) if the Dissenting Shareholders had not perfected their dissenters’ rights (the “Dissenting Shares Amount”) shall be no greater than two percent (2.0%) of the Aggregate Merger Consideration; provided, however, that the Company may elect, by giving written notice to Acquiror at least three Business Days prior to the Closing Date, to replace the foregoing reference to “two percent (2.0%)” with “five percent (5.0%)” (the “5% Dissenting Shares Election”) in exchange for the indemnification obligations of the Company-related parties set forth in Section 10.2(b) and in the Indemnification Agreement delivered pursuant to Section 6.18 being expanded to include any Losses (as defined therein) incurred by the Acquiror as a result of the Dissenting Shares; (g) Acquiror shall have received evidence from the Company, in a form reasonably satisfactory to Acquiror, that no director, officer or employee of an Acquired Subsidiary remains subject to any employment contract, change of control agreement or other agreement other than as set forth on Schedule 4.20; (h) as of the Closing Date, no Proceeding shall be pending, and none shall have been Threatened, that, if adversely decided, would have a Material Adverse Effect on the Company or any Acquired Subsidiary or on Acquiror’s rights under this Agreement; (i) Acquiror shall have received a copy of the written opinion of Ernst & Young LLP referred to in Section 9.2(f); (j) the Company shall not have any outstanding indebtedness (including any guarantees of indebtedness) other than: (i) the $40.0 million outstanding principal amount under the Trust Debentures; and (ii) any indebtedness it is permitted to incur between the date of this Agreement and the Closing pursuant to Section 6.3(j); and (k) Acquiror shall have received evidence from the Trustee, in a form reasonably satisfactory to Acquiror, that, following payment of the Accrued TRUPS Interest at the Closing pursuant to Section 2.8, all interest due on the Trust Debentures through the Closing Date has been paid in full, and no payments of such interest remain deferred, pursuant to the terms of the Trust Debentures.

Conditions to the Obligations of Acquiror and Merger Sub. The obligations obligation of Acquiror and Merger Sub to consummate effect the Contemplated Transactions and to take the other actions required to be taken by Acquiror and Merger Sub at the Closing are is subject to the satisfactionsatisfaction or, at or if permitted by applicable Law, waiver prior to the Closing, of each Closing Date of the following conditions (any of which may be waived by Acquiror, in whole or in part):further conditions: (a) all each of the representations and warranties of the Company set forth DTN contained in this Agreement shall be true and correct with as of the same force and Effective Time (without giving effect as if all of such representations and warranties were made at the Closing (provided, however, that to the extent such representations and warranties expressly relate to an earlier date, such representations shall be true and correct materiality or Material Adverse Effect qualifiers set forth therein) as though made on and as of such earlier date)the Effective Time, except for where any untrue such failure or incorrect representations or warranties that failures to be so true and correct, individually or in the aggregate do aggregate, would not have a Material Adverse Effect on Effect, and except that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date except where any such failure or failures to be so true and correct, individually or in the Company aggregate, would not have a Material Adverse Effect, and Acquiror shall have received a certificate of the Chairman, President or any Acquired Subsidiary or on Acquiror’s rights under this AgreementChief Financial Officer of DTN to such effect; (b) the Company DTN shall have performed or complied in all material respects with all of the agreements and covenants and obligations required by this Agreement to be performed or complied with by it under the terms of this Agreement on or prior to the ClosingEffective Time, except where any nonperformance and Acquiror shall have received a certificate of the Chairman, President or noncompliance would not have a Material Adverse Effect on the Company or any Acquired Subsidiary or on Acquiror’s rights under this AgreementChief Financial Officer of DTN to such effect; (c) the Company There shall not have tendered for delivery all of the certificates, documents and other items listed in Section 2.6 of this Agreement, in form and substance reasonably satisfactory to Acquiror; occurred any material adverse change (d) all proceedings, corporate or otherwise, to be taken by the Company in connection with the Contemplated Transactions, and all documents incident thereto, shall be reasonably satisfactory in form and substance to Acquiror and its counsel; (e) from the date of this Agreement to the Closing, there shall be and have been no change in the financial condition, assets or business of the Company or any Acquired Subsidiary that has had or developments that, insofar as reasonably can be foreseen, would reasonably be expected to have result in a Material Adverse Effect on material adverse change) in the Company business, properties, prospects, operations or such Acquired condition (financial or otherwise) of DTN or any Significant Subsidiary of DTN, other than any change, effect, event or on Acquiror’s rights under this Agreement; (f) the portion of the Aggregate Merger Consideration that otherwise would have been payable with respect occurrence to the Dissenting Shares pursuant extent arising from or relating to Section 3.1(b) if the Dissenting Shareholders had not perfected their dissenters’ rights (the “Dissenting Shares Amount”) shall be no greater than two percent (2.0%) of the Aggregate Merger Consideration; provided, however, that the Company may elect, by giving written notice to Acquiror at least three Business Days prior to the Closing Date, to replace the foregoing reference to “two percent (2.0%)” with “five percent (5.0%)” (the “5% Dissenting Shares Election”) in exchange for the indemnification obligations of the Company-related parties set forth in Section 10.2(b) and in the Indemnification Agreement delivered pursuant to Section 6.18 being expanded to include any Losses (as defined therein) incurred by the Acquiror as a result of the Dissenting Shares; (g) Acquiror shall have received evidence from the Company, in a form reasonably satisfactory to Acquiror, that no director, officer or employee of an Acquired Subsidiary remains subject to any employment contract, change of control agreement or other agreement other than as set forth on Schedule 4.20; (h) as of the Closing Date, no Proceeding shall be pending, and none shall have been Threatened, that, if adversely decided, would have a Material Adverse Effect on the Company or any Acquired Subsidiary or on Acquiror’s rights under this Agreement; (i) Acquiror shall have received a copy of the written opinion of Ernst & Young LLP referred to in Section 9.2(f); (j) the Company shall not have any outstanding indebtedness (including any guarantees of indebtedness) other than: (i) the $40.0 million outstanding principal amount under United States or the Trust Debentures; and global economy or securities markets in general, (ii) any indebtedness it is permitted to incur between the date of this Agreement and the Closing pursuant to Section 6.3(j); and (k) Acquiror shall have received evidence from the Trustee, in a form reasonably satisfactory to Acquiror, that, following payment of the Accrued TRUPS Interest at the Closing pursuant to Section 2.8, all interest due on the Trust Debentures through the Closing Date has been paid in full, and no payments of such interest remain deferred, actions taken pursuant to the terms obligations of the Trust Debentures.parties expressly set forth in this Agreement, or (iii) changes in any Laws;