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

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate and effect the Merger is shall be subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company set forth made in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (disregarding all without giving effect to any qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” or words of similar import) on the Closing Date set forth therein), except as if made on the Closing Date (does not constitute a Company Material Adverse Effect, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if expressly relate to an earlier time (in which case, where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have correct as of such times does not resulted in a constitute Company Material Adverse Effect;). (bd) the The Company shall have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing;Closing Date. (ce) Prior to or at the Closing, Parent shall have received at a certificate, validly executed by the Closing a certificate signed on behalf Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer or the Chief Financial Officer of the Company certifying Company, dated as of the Closing Date, to the effect that the conditions set forth specified in this Section 7.02(a) and Section 7.02(b) have been are satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction orsatisfaction, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in the first and second sentences of Section 4.01 (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), clause (b) and the first sentence of clause (d) of Section 4.05 (Capitalization) (other than clause (a) thereof) and ), Section 4.23 4.24 (Brokers’ Fees), and Section 4.27 (Anti-Takeover Provisions) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date) (for purposes of this clause (i), disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import), (ii) the representations and warranties of the Company set forth in clause (a) and (c) of Section 4.05 (Capitalization) shall be true and correct in all respects on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a specific date, in which case such representation and warranty shall be true and correct in all respects only as of such specified date), except for any inaccuracy or combination of inaccuracies in such representations and warranties relative to the total fully-diluted equity capitalization of the Company as of the Closing Date that do not result in an increase in the aggregate consideration otherwise payable by Parent in the Merger by more than $12,500,000, (iii) the representations and warranties of the Company set forth in Section 4.09(b) (Absence of Changes) shall be true and correct in all respects on the Closing Date as if made on the Closing Date and (iv) the other representations and warranties of the Company set forth in Article 4 of this Agreement shall be true and correct on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) except where the failure of such representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall to be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correctwould not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b), Section 7.02(d) and Section 7.02(b7.02(e) have been satisfied; and; (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect; (e) the amount of cash and cash equivalents available to Parent immediately prior to the Convertible Notes Cash Payment Time, as a funding source for the Aggregate Merger Consideration, transaction expenses related to the transactions contemplated by this Agreement and any Convertible Notes Cash Payment Amount, shall be at least equal to the Minimum Cash Amount; and (f) the CEO Rollover shall have occurred in accordance with the CEO Support and Rollover Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction orfulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or in part by Parent to the extent permitted by Applicable applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) The representations and warranties of the Company set forth in the first sentence of Section 3.01 (iOrganization and Qualification), in Section 3.03 (Authority For This Agreement), in Section 3.19 (State Takeover Statutes Inapplicable), in Section 3.20 (Opinion of Financial Advisor), in Section 3.21 (Required Vote of Company Stockholders) and in Section 3.22 (Brokers) shall be true and correct in all respects both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date). The representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 3.02 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies thereinboth when made and at and as of the Closing Date, as if made at and as of such time (iii) except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct would not result in clause losses to Parent of more than $1,000,000. The representations and warranties of the Company set forth herein (b) of Section 4.09 (Absence of Certain Changesother than those listed in the preceding two sentences) shall be true and correct in all respects as of the date of this Agreement (without giving effect to any materiality or material adverse effect qualifications contained therein) both when made and at and as of the Closing Date Date, as if made on the Closing Date at and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date such time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect would not reasonably be likely to have or result in, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have performed or complied in all material respects with all covenants and obligations agreements contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing;, except where the failure to so perform or comply, in the aggregate, would not be reasonably likely to have a Material Adverse Effect. (c) Parent The Company shall have received at delivered to Parent a certificate, dated the Closing a certificate signed on behalf date of the Company Closing, signed by the Chief Executive Officer or the Chief Financial Officer of the Company Company, certifying that as to the fulfillment of the conditions set forth specified in Section Sections 7.02(a), 7.02(b), 7.02(e), 7.02(f) and Section 7.02(b) have been satisfied; and7.02(g). (d) since The Company shall have delivered to Parent a properly executed statement satisfying the requirements of Treasury Regulation sections 1.1445-2(c)(3) and 1.897-2(h) certifying that an interest in the Company is not a U.S. real property interest within the meaning of section 897 of the Code. (e) Immediately prior to the Effective Time, the Company shall have declared and paid a cash dividend to holders of Series A Preferred Stock equal to the amount of accumulated but unpaid dividends outstanding as of the Closing Date on the Series A Preferred Stock and a cash dividend to holders of Series B Preferred Stock equal to the amount of accumulated but unpaid dividends outstanding as of the Closing Date on the Series B Preferred Stock. (f) The Management Services Agreement, dated June 30, 1999, by and between the Company and Fremont Partners, L.L.C. shall have been terminated no later than the Effective Time. (g) Since the date of this Agreementhereof, there shall not have occurred and be continuing to exist any Company been no Material Adverse EffectEffect that is continuing.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following additional conditions: (a) the Company shall have performed, or complied with, in all material respects all of its covenants or agreements hereunder required to be performed, or complied with, by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing other than the second sentence of Section 4.01) (Corporate Existence and Power), Section 4.02 4.02(a) and Section 4.02(b) (Corporate Authorization), Section 4.05 4.04(a) (Capitalization) Non-Contravention); Section 4.05(b)(Capitalization), Section 4.06 (other than clause the first sentence of Section 4.06(b)) (a) thereofSubsidiaries), Section 4.24 (Finders’ Fees) and Section 4.23 4.26 (Brokers’ FeesAnti-Takeover Statutes) shall have been be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier datesuch times (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime), ; (ii) the representations and warranties of the Company set forth contained in clause (a) the second sentence of Section 4.05 4.01 (Corporate Existence and Power), Section 4.05(a), Section 4.05(c) (Capitalization) and the first sentence of Section 4.06(b) (Subsidiaries) shall be true and correct in all respects (other than de minimis inaccuracies therein, inaccuracies) as of the date of this Agreement and as of the Closing Date as if made as of such times; (iii) the representations and warranties of the Company contained in clause (bSection 4.10(b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date as of such times; and (iv) each of the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall have been be true and correct in all respects at and as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier datesuch times (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything with only such exceptions in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (bc) since the date hereof, there shall not have occurred a Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingMaterial Adverse Effect; (cd) Parent shall have received at a certificate, dated as of the Closing a certificate Date, signed on behalf by an executive officer of the Company by to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(athe preceding clauses (a), (b) and Section 7.02(b(c) have been satisfied; and (de) since the date consents, clearances, authorizations, approvals, waivers and filings set forth on Section 9.02(e) of this Agreementthe Company Disclosure Schedule shall have been duly obtained and remain in full force and effect, there shall not other than with respect to any indebtedness facilities listed on Section 9.02(e) of the Company Disclosure Schedule that the Company or its Subsidiaries have occurred and be continuing to exist any Company Material Adverse Effect.repaid, redeemed or retired in accordance with the terms of Section 6.08;

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) and Section 4.24 (Opinion of Financial Advisor) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall have been true and correct in all respects other than de minimis inaccuracies therein as of the date of this Agreement and shall be true and correct in all respects other than de minimis inaccuracies thereintherein as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingClosing (excluding the covenants and obligations set forth in Section 6.17); (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction satisfaction, or, to the extent permitted by Applicable Law, waiver by ParentParent of, at on or prior to the Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 in: (Organization, Standing and Poweri) Sections 4.04(a), Section 4.02 (Corporate Authorization), Section 4.05 4.04(b) and 4.04(c) (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and as of such date (iv) the representations and warranties except for any representation or warranty that is expressly made as of the Company set forth a specified date, in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) which case such representation or warranty shall have been be true and correct only as of such specified date), except for de minimis accuracies, (ii) Section 4.02 (Corporate Authorization), Section 4.03(a)(i) (Consents and Approvals; No Violations), Sections 4.04(d) and 4.04(e) (Capitalization) and Section 4.24 (Brokers’ Fees) shall be true and correct in all material respects (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only as of such specified date); and (iii) Article 4 (other than the representations and warranties referred to in the foregoing clauses (i) and (ii)) shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or and words of similar importimport set forth therein) on as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and as such date (except to the extent that for any such representation and or warranty that is expressly speaks made as of an earlier a specified date, in which case such representation and or warranty shall be so true and correct only as of such earlier specified date); provided, however, that notwithstanding anything except in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviii) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or and complied in all material respects with all covenants and obligations required to be performed or complied with by it the Company under this Agreement at on or prior to the ClosingClosing Date; (c) since the date of this Agreement, no Company Material Adverse Effect shall have occurred; (d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an authorized officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(b7.02(c) have been satisfied; and (de) since the date Company shall have delivered to Parent and Merger Sub a duly completed and executed affidavit, dated as of this Agreementthe Closing Date and issued in form and substance as required pursuant to Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c), there shall certifying under penalties of perjury that the Company Common Stock is not have occurred and a United States real property interest within the meaning of Section 897(c) of the Code, accompanied by an original signed notice to be continuing delivered to exist any the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice to the IRS on behalf of the Company Material Adverse Effectfollowing the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, ▇▇▇▇▇▇ and Merger Sub) of the following conditions: (a) (i) other than the representations and warranties of the Company set forth contained in Section 4.01 4.1 (Organization, Standing and Power), Section 4.02 4.3(a) (Corporate Capitalization), Section 4.4(a) (Authorization), Section 4.05 4.10 (Capitalization) (other than clause (a) thereof) Absence of Certain Changes), and Section 4.23 4.17 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier dateBrokers or Finders), (ii) the representations and warranties of the Company contained in this Agreement, for the purpose of this clause (i) without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar standard or qualification set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date Date, as if though made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement except to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of extent such representations and warranties of the Company failures to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have not resulted in a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization), Section 4.3(a) (Capitalization), Section 4.4(a) (Authorization), Section 4.10 (Absence of Certain Changes), and Section 4.17 (Brokers or Finders), 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 such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (b) the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all covenants and obligations respects, required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent no Company Material Adverse Effect shall have received at occurred and be continuing following the Closing a certificate signed on behalf date of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfiedthis Agreement; and (d) since the date Company shall have delivered to Parent a certificate, dated as of this Agreementthe Closing Date, there shall not have occurred signed by an officer of the Company, certifying to the satisfaction of the conditions specified in Section 8.2(a), Section 8.2(b), and be continuing to exist any Company Material Adverse EffectSection 8.2(c).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is under this Agreement are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parentsatisfaction, at or prior to before the Closing, of each of the following conditions: (a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business. (ib) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) that are not so qualified shall have been be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;respects. (bc) the The Company shall have performed or and complied in all material respects with all covenants covenants, agreements, obligations and obligations conditions required by this Agreement to be performed or complied with by it under this Agreement the Company at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and. (d) since There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the date consummation of this Agreementthe Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company. (e) On the Closing Date, there shall not be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (f) The Company shall have occurred delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c). (g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be continuing executed and delivered at the Closing pursuant to exist any this Agreement. (h) All documents to be delivered by the Company Material Adverse Effectto Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub. (i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) 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; (b) (i) the representations and warranties of the Company set forth contained in the first and last sentences of Section 4.01 (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization4.04(a) (other than clause Non-contravention), Section 4.26 (a) thereofOpinion of Financial Advisor) and Section 4.23 4.27 (BrokersFinders’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date), ; (ii) the representations and warranties of the Company set forth contained in clause (aSection 4.05(a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies therein, inaccuracies; (iii) the representations representation and warranties warranty set forth in clause (bSection 4.09(b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date Closing; and (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement IV (other than those described in the foregoing clauses (i) through (iii)disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect) shall have been be true and correct at and as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect; and (d) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section 8.02(a), Section 8.02(b) and Section 8.02(c).

Conditions to the Obligations of Parent and Merger Sub. The obligation In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Merger Closing Date of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in Section 4.01 4.2(a) (Organization, Standing and PowerCapitalization; Subsidiaries), Section 4.02 4.3 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereofAuthority Relative to Agreement) and the first sentence of Section 4.23 4.25 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Merger Closing Date as if made on the Merger Closing Date (except, with respect to Section 4.2(a), to the extent that any inaccuracies would be de minimis, in the aggregate) and (ivii) each of the remaining representations and warranties of the Company set forth in Article 4 IV of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been be true and correct as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Merger Closing Date as if made on the Merger Closing Date (except to the extent that any such representation representations and warranty warranties expressly speaks as of relate to an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, howeverexcept for inaccuracies of representations or warranties the circumstances giving rise to which would not constitute a Company Material Adverse Effect (it being understood that, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this for purposes of clause (a)(ivii) shall be deemed to have been satisfied even if any representations and warranties of above, when determining the Company are not so true and correct if the failure accuracy of such representations and warranties of the Company to be so true and correctwarranties, individually or in the aggregateall materiality, have not resulted in a “Company Material Adverse Effect” and similar qualifiers contained in such representations and warranties shall be disregarded); (b) the Company shall have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingMerger Closing Date; (c) Parent the Company shall have received at delivered to Parent a certificate, dated the Merger Closing a certificate Date and signed on behalf by an executive officer of the Company by Company, certifying as to the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions matters set forth in Section 7.02(a7.2(a) and Section 7.02(b) have been satisfied7.2(b); and (d) since the date of this Agreement, there shall not have occurred and any change, effect, development or circumstance that constitutes, or would reasonably be continuing expected to exist any constitute, a Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The respective obligation of Parent and Merger Sub to consummate effect the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at on or prior to Closing, the Closing Date of the following conditions: (a) (iA) The representations and warranties of the Company set forth in Article II (other than those set forth in Sections 2.01, 2.02(a)–(d), 2.04, 2.08(a), 2.19, and 2.20) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect,” it being agreed that with respect to any representation or warranty with respect to which effects resulting from or arising in connection with the matters set forth in clause (G) of the definition of the term “Company Material Adverse Effect” are not excluded in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur, such effect shall similarly not be excluded for purposes of this clause (A)), (B) the representations and warranties of the Company set forth in Section 4.01 (OrganizationSections 2.01, Standing 2.04, 2.19 and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) 2.20 shall have been be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if though made on the Closing Date (and as of such date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, relates to a specified date (in which case on and as of such specified date), (C) the representation and warranty of the Company set forth in Section 2.02(a)–(d) shall be true and correct only as of the date of this Agreement and as of the Closing Date as though made on and as of such earlier date, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date), except where the failure of any such representations and warranties to be true and correct, would not, individually or in the aggregate, be reasonably expected to result in additional net cost, expense or liability to the Company, Parent, Merger Sub or their respective affiliates of $15,000,000 or more, and (iiD) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes2.08(a) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (such date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, relates to a specified date (in which case such representation on and warranty shall be true and correct only as of such earlier specified date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or(or written waiver, to the extent permitted by Applicable if permissible under applicable Law, waiver by Parent, at ) on or prior to Closing, the Closing of the following further conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the Fundamental Representations shall be true and correct at and as of the Effective Time in all material respects as of the date of this Agreement if made at and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date such time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty (as so read) shall be true and correct only in all material respects as of such earlier date), ; and (iiiii) the representations and warranties of the Company set forth (other than the Fundamental Representations) that are contained in clause this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (a) which shall, for the purposes of this Section 4.05 (Capitalization8.2(a), be read without any qualification contained therein as to materiality or Material Adverse Effect of the Company) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date Effective Time as if made on the Closing Date at and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date such time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty (as so read) shall be true and correct only as of such earlier date); provided, howeverwith such exceptions as have not had and would not reasonably be expected to have, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, whether individually or in the aggregate, have not resulted in a Company Material Adverse EffectEffect on the Company; (b) No Material Adverse Effect on the Company shall have performed or complied in all material respects with all covenants occurred since the date hereof and obligations required to be performed or complied with by it under this Agreement at or prior to the Closingcontinuing; (c) Holders of no greater than ten percent (10%) of the issued and outstanding shares of Common Stock shall have demanded appraisal for such shares in accordance with Delaware Law (excluding such holders who have failed to perfect, withdrawn or otherwise lost such right to appraisal) prior to the Closing; and (d) Parent shall have received at a certificate dated as of the Closing a certificate Date signed on behalf of the Company by the Chief Executive Officer chief executive officer or the Chief Financial Officer another senior officer of the Company certifying to the effect that the conditions set forth in Section 7.02(a8.2(a) and Section 7.02(b8.2(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following additional conditions: (a) the Company shall have complied with and performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time; (ib) the representations and warranties of the Company set forth contained in Section 4.01 (Organizationi) the first two sentences of ‎Section 4.01, Standing and Power)‎‎Section 4.02, Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof‎Section 4.04(a) and Section 4.23 ‎Section 4.22 (Brokers’ Feesdisregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall have been be true and correct in all material respects at and as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime), (ii) the representations ‎Section 4.05(a), ‎Section 4.05(d), and warranties of the ‎Section 4.05(e) (disregarding all materiality, Company set forth in clause (a) of Section 4.05 (CapitalizationMaterial Adverse Effect or similar qualifications contained therein) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date Effective Time as if made on the Closing Date at and as of such time (iv) the other than representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct that by their terms address matters only as of the date of this Agreement and another specified time, which shall be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier datetime); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the except where failure of such representations and warranties of the Company to be so true would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and correcttheir Affiliates, individually or in the aggregate, that is more than $5,000,000 and (iii) the other representations and warranties of the Company contained in this Agreement ​ ​ (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true in all respects at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (iii) as have not resulted had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (bc) Since the date hereof, there shall not have occurred any event, occurrence, fact, condition, change, development or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing;Material Adverse Effect; and (cd) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(athe preceding clauses ‎(a), ‎(b) and Section 7.02(b‎(c) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following further conditions: (a) (i) the representations and warranties of the Company set forth contained in the first two sentences of Section 4.01 (Organization, Standing 4.05(a) and Powerthe first sentence of Section 4.05(b), Section 4.02 (Corporate Authorization)in each case, Section 4.05 (Capitalization) shall be true in all respects (other than clause (aany de minimis inaccuracies) thereof) at and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date)time, (ii) the representations and warranties of the Company set forth contained in the first sentence of Section 4.01, Section 4.02, Section 4.04(i), Section 4.05(b) (only to the extent not addressed by in clause (ai) of this Section 4.05 (Capitalization9.02(a)) and Section 4.23 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (other than de minimis inaccuracies thereinsuch representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), (iii) the representations and warranties of the Company contained in clause (b) of Section 4.09 (Absence of Certain Changes4.10(b) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date Effective Time as if made on the Closing Date at and as of such time, and (iv) the other representations and warranties of the Company set forth contained in Article 4 (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true at and as of this Agreement the Effective Time as if made at and as of such time (other than those described in the foregoing clauses (i) through (iii)) shall have been true representations and correct warranties that by their terms address matters only as of the date of this Agreement and another specified time, which shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier datetime); provided, howeverwith, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall only, only such exceptions as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall not have performed breached or complied failed to perform or comply with in all material respects with all its obligations and covenants and obligations required under this Agreement contemplated to be performed or complied with by it under this Agreement at or prior to the ClosingEffective Time; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be continuing expected to exist any have a Company Material Adverse Effect; (d) the Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the Closing Date certifying that the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been satisfied; (e) the Company shall have delivered to Parent the Payoff Letters; (f) each of the Money Transmission Law Approvals shall have been obtained; and (g) each consent, approval, waiver, clearance, authorization or permission of a Governmental Authority required under any applicable insurance laws shall have been made, obtained or received (or, as applicable, the waiting periods with respect thereto shall have expired or been terminated).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) the Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth in Section 4.01 (OrganizationSections 4.01, Standing and Power4.02, 4.04(a), Section 4.02 (Corporate Authorization)4.06, Section 4.05 (Capitalization) (other than clause (a) thereof) 4.23, 4.24, 4.25 and Section 4.23 (Brokers’ Fees) 4.26 of this Agreement shall have been be true and correct in all material respects as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period), ; (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) of this Agreement shall be true and correct in all respects other than (except for de minimis inaccuracies thereininaccuracies) as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representations representation and warranties warranty of the Company set forth in clause (bSection 4.10(b) of Section 4.09 (Absence of Certain Changes) this Agreement 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 the Closing Date Agreement; and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described referred to in the foregoing preceding clauses (i) through (iiii)-(iii)) shall have been be true and correct as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii) and (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties; (c) there shall not have not resulted in occurred since the date hereof a Company Material Adverse Effect; (bd) the closing condition in Section 9.01(a) (if the Applicable Law or legal prohibition relates to any of the matters referenced in Section 9.01(c)) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); (e) the closing condition in Section 9.01(c) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); and (f) the Company shall have performed or complied in all material respects with all covenants and obligations required delivered to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by the Chief Executive Officer or the Chief Financial Officer dated as of the Company Closing Date certifying that the conditions set forth specified in Section 7.02(aparagraphs (a), (b) and (c) of this Section 7.02(b) 9.02 have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Merger is are also subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at Parent on or prior to Closing, the Closing Date of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Section 4.01 2.1(a) (Organization, Standing Organization and Power), Qualification) Section 4.02 (Corporate Authorization), Section 4.05 2.3 (Capitalization) (other than clause (a) thereof) and Section 4.23 2.4(a) (Brokers’ FeesAuthority) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the for representations and warranties of the in any such sections qualified as to materiality or a Company set forth in clause (a) of Section 4.05 (Capitalization) Material Adverse Effect, which shall be true and correct in all respects other than de minimis inaccuracies therein, (iiirespects) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case, they shall be true and correct in all material respects or in all respects, as the case may be, as of such earlier date) and (ivii) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described specified in the foregoing clauses preceding clause (i) through (iii)) shall have been be true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if though made on or as of the Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty they shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if except for any representations and warranties such failures of the Company are not so true and correct if the failure any of such representations and warranties of the Company to be so true and correctcorrect (without giving effect to any qualification as to materiality or a Company Material Adverse Effect) that would not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the The Company shall have performed or complied in all material respects with all covenants of its material covenants, agreements and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingClosing Date; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company certifying to the effect that the conditions set forth in Section 7.02(aclauses (a) and Section 7.02(b(b) above have been so satisfied; and (d) since From the date of this AgreementAgreement through the Effective Time, there shall not have occurred and be continuing to exist any events, conditions, states of facts or developments that have had, individually or in the aggregate, a Company Material Adverse Effect, the effects of which are continuing on the Closing Date.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is and the Subsequent Merger are subject to the satisfaction or, of the following further conditions (any or all of which may be waived by Parent and Merger Sub in whole or in part to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions:): (a) (i) the representations and warranties of the Company set forth contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (other than the Fundamental Representations and the representations and warranties of the Company contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 4.06(a) (Capitalization) (other than clause (a) thereof) and Section 4.23 4.10(a) (Brokers’ Fees) shall have been true Absence of Certain Changes)), without giving effect to any materiality and correct in all material respects as of the date of this Agreement and Material Adverse Effect qualifications contained therein, shall be true at and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be true and correct only as of such earlier datetime), with only such exceptions as have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) the Fundamental Representations of the Company contained in this Agreement shall be true in all material respects at and as of the Closing Date as if made at and as of such time (other than Fundamental Representations that by their terms address matters only as of another specified time, which shall be true only as of such time), (iiiii) the representations and warranties of the Company set forth in clause (aSection 4.06(a) of Section 4.05 (Capitalization) of this Agreement shall be true and correct in all respects at and as of the Closing Date as if made at and as of such time (other than de minimis inaccuracies therein, (iii) the representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except for any failures to be so true that are de minimis and (iv) the representation and warranty contained in clause (bSection 4.10(a) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date as if made on the Closing Date at and as of such time (iv) the other than representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct that by their terms address matters only as of the date of this Agreement and another specified time, which shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier datetime); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) each of the Company Company, SellerCo and Seller MergerCo shall have performed or complied in all material respects with all covenants and of its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing;Closing (or any non-performance shall have been cured) in all material respects; and (c) Parent shall have received at the Closing a certificate signed on behalf by a senior executive officer of the Company by confirming the Chief Executive Officer or the Chief Financial Officer satisfaction of the Company certifying that the conditions set forth in Section 7.02(a9.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect9.02(b).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction orfulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditionsapplicable Laws: (a) (i) the The representations and warranties of the Company (i) set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 3.3 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 the Closing Date and as of such date and time, (ivii) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (iSection 3.2(a) through (iii)) and Section 3.21 shall have been be true and correct in all but de minimis respects as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on and as of such date and time (except for representations and warranties made as of a specified date, only as of the specified date) and (iii) set forth in this Agreement (other than those Sections specifically identified in clause (i) and (ii)), to the extent qualified by materiality or Company Material Adverse Effect, shall be true and correct and, to the extent 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 Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any for representations and warranties made as of the Company are not so true and correct if the failure of such representations and warranties of the Company to a specified date, which need be so true and correct, individually or true and correct in all material respects, as the aggregatecase may be, have not resulted in a Company Material Adverse Effect;only as of the specified date). (b) the The Company shall have performed or complied in all material respects with all covenants and obligations agreements contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing;. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since Since the date of this Agreement, there shall not have occurred and been any effect, change, event or occurrence that has had or would reasonably be continuing expected to exist any have, individually or in the aggregate, a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the date of the Closing, signed by an executive officer of the Company, certifying as to the fulfillment of the conditions specified in Section 7.2(a), Section 7.2(b) and Section 7.2(c). (e) The holders of no more than 10% of the Company Shares shall have validly served a written objection under Section 238(2) of the Cayman Companies Law.

Conditions to the Obligations of Parent and Merger Sub. The obligation respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Effective Time of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in in, Section 4.01 3.1 (Organization, Standing Organization and PowerQualification; Subsidiaries), Section 4.02 3.2 (Corporate AuthorizationCertificate of Incorporation and Bylaws), Section 4.05 3.4 (CapitalizationAuthority Relative to the Agreement), Section 3.11(b) (other than clause Absence of Certain Changes or Events), Section 3.21 (a) thereofOpinion of Financial Advisor), Section 3.22 (Takeover Statutes) and Section 4.23 3.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (CapitalizationVote Required) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date Effective Time with the same effect as if though made on the Closing Date and (iv) the representations and warranties as of the Company Effective Time, (ii) set forth in Article 4 of this Agreement Section 3.3 (other than those described in the foregoing clauses (i) through (iii)Capitalization) shall have been be true and correct in all material respects at and as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date Effective Time with the same effect as if though made on as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case as of such representation date) and warranty (iii) set forth in Article III (other than the sections of Article III referred to in clause (i) or (ii) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct only at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); provided, however, that notwithstanding anything except in this Agreement to the contrary, the condition set forth in this case of clause (a)(iviii) shall for such failures to be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company as would not have or reasonably be expected to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; provided, solely for purposes of clause (ii) above, if one or more inaccuracies in Section 3.3 would be reasonably likely to cause the aggregate amount required to be paid by Parent or Merger Sub to consummate Merger, refinance the indebtedness of the Company, acquire, directly or indirectly, all of the outstanding equity interests in the Company’s subsidiaries and pay all fees and expenses in connection therewith to increase by $500,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (ii) of this Section 6.2(a); (b) the Company shall have performed or complied with, in all material respects with all agreements and covenants and obligations required to be performed or complied with by it under this Agreement at on or prior to the Closing;Effective Time; and (c) Parent the Company shall have received at delivered to Parent a certificate, dated the Closing a certificate Effective Time and signed by its chief executive officer or another senior officer on behalf of the Company by Company, certifying to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(a6.2(a) and Section 7.02(b6.2(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following further conditions: (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and (i) that are not qualified by Company Material Adverse Effect shall be true and correct in all material respects as of the Closing Date Effective Time as if though made on and as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date)) except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect and (ii) the representations and warranties of the that are qualified by Company set forth in clause (a) of Section 4.05 (Capitalization) Material Adverse Effect shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations Effective Time as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if though made on and as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to (A) the contrary, the condition representations and warranties set forth in this clause (a)(ivSection 4.2(a) and Section 4.8(a)(iii) shall be deemed to have been satisfied even if any true and correct in all respects (except for immaterial deviations) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (B) the representations and warranties of the Company are not so set forth in Section 4.5, shall be true and correct if in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (C) the representations and warranties set forth in Section 4.3, shall be true and correct in all respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except where the failure of such representations and warranties of the Company to be so true and correctcorrect would not, individually or in the aggregate, have not resulted in a materially and adversely affect the ability of the Company Material Adverse Effectto consummate the transactions contemplated hereby; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by the chief financial officer of the Company by the Chief Executive Officer or the Chief Financial Officer Company, dated as of the Company certifying that Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.02(a7.2(a) and Section 7.02(b7.2(b) have been satisfied; and (d) since the date of this Agreement, there shall has not have occurred and be continuing to exist been any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) 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 Merger Effective Time; (b) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Powerother than the third sentence thereof), Section 4.02 (Corporate Authorizationother than the last sentence of Section 4.02(b)), Section 4.05 (Capitalization) (other than clause (a) thereof) 4.04(a), Section 4.05(a), Section 4.05(b), Section 4.26, Section 4.27 and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and 4.28 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date), ; (ii) the representations and warranties of the Company set forth contained in clause (a) of Section 4.05 (Capitalization4.10(a)(ii) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date Closing; and (iviii) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall have been be true and correct at and as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviii) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect (or, in the case of Section 4.16, a Parent Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing;); and (c) Parent shall have received at the Closing a certificate signed on behalf from an executive officer of the Company by confirming the Chief Executive Officer or the Chief Financial Officer satisfaction of the Company certifying that the conditions set forth in Section 7.02(a9.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect9.02(b).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is transactions contemplated by this Agreement shall be subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by fulfillment or Parent’s waiver, at or prior to the Closing, of each of the following conditions: (a) (i) Each of the other representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and Article III shall be true and correct in all material respects as of the Closing Date with the same effect as if though made on the Closing Date at and as of such date (except to the extent those representations and warranties that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct address matters only as of such earlier a specified date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier specified date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, correct would not have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have performed or and complied in all material respects with all agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Agreements to be performed or complied with by it under this Agreement at or the Company prior to or on the Closing;Closing Date. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since From the date of this Agreement, there shall not have occurred and be continuing to exist any Company 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 expected to result in a Company Material Adverse Effect. (d) No Governmental Order shall be in effect which restrains, hinders or prohibits or threatens to restrain, hinder or prohibit the consummation of the transactions contemplated by this Agreement; and there shall not have been threatened, nor shall there be pending, any Action by a Person or before any Governmental Authority which is reasonably likely to restrain, hinder, prohibit, delay or challenge the validity of any of the transactions contemplated by this Agreement. (e) The Company shall have delivered to Parent duly executed counterparts to the Ancillary Agreements and such other documents and deliverables set forth in Section 2.11. (f) Holders of no more than two percent (2.00%) of the outstanding Company Capital Stock as of immediately prior to the Effective Time, in the aggregate, shall have exercised, or remain entitled to exercise, statutory appraisal rights pursuant to Section 262 of the DGCL with respect to such shares of Company Capital Stock.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction satisfaction, or, to the extent permitted by Applicable Law, waiver by ParentParent of, at or prior to the Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in in: (i) Section 4.01 (Organization, Standing Organization and PowerGood Standing), Section 4.02 (Corporate AuthorizationPower; Enforceability), Section 4.05 4.03 (CapitalizationCompany Board Approval; Fairness Opinion; Anti-Takeover Laws), Section 4.04(a)(i) (other than clause Non-Contravention), Section 4.06(b)(i) (a) thereofsecond sentence only), Section 4.06(b)(ii) and Section 4.23 4.06(b)(iii) (Stock Reservation and Awards), the first sentence of Section 4.06(d) (Company Stock Plans and Award Agreements), Section 4.06(e) (Other Rights), the second sentence of Section 4.07(b) (Power and Enforceability), Section 4.07(c) (Subsidiary Securities) and Section 4.29 (Brokers’ Fees) (A) that are not qualified by “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein shall have been be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if though made on the Closing Date and as of such date (except to the extent that for any such representation and or warranty that is expressly speaks made as of an earlier a specified date, in which case such representation and or warranty shall be so true and correct only on and as of such earlier specified date), and (iiB) the representations that are qualified by “materiality,” “Company Material Adverse Effect” and warranties words of the Company similar import set forth in clause (a) of Section 4.05 (Capitalization) therein shall be true and correct in all respects other than de minimis inaccuracies (without disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only on and as of such specified date); (iiiii) Section 4.06(a) (Capital Stock), the representations and warranties in clause (b) first sentence of Section 4.09 4.06(b)(i) (Absence of Certain ChangesStock Reservation and Awards) and Section 4.06(c) (Company Securities) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if though made on and as of such date (except for any such representation or warranty that is expressly made as of a specific date, in which case such representation or warranty shall be so true and correct only on and as of such specified date), except in the Closing Date case of this clause (ii) only, for such failures to be true and correct that are de minimis; and (iviii) Article 4 (other than the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described referred to in the foregoing clauses (i) through and (iiiii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or and words of similar importimport set forth therein) on as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and as of such date (except to the extent that for any such representation and or warranty that is expressly speaks made as of an earlier a specified date, in which case such representation and or warranty shall be so true and correct only on and as of such earlier specified date); provided, however, that notwithstanding anything except in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviii) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or and complied in all material respects with all covenants and obligations required to be performed or complied with by it the Company under this Agreement at on or prior to the ClosingClosing Date; (c) since the date of this Agreement, no Company Material Adverse Effect shall have occurred and be continuing; and (d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an authorized officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(b7.02(c) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or valid waiver of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to the extent permitted be performed by Applicable Law, waiver by Parent, it at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), Effective Time; (ii) the representations and warranties of the Company (A) set forth in clause (a) of Section 4.05 (Capitalization) SECTION 4.5 shall be true and correct in all respects other than (except for inaccuracies that are de minimis inaccuracies therein, (iiiin the aggregate) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement Effective Time as if made at and as of the Closing Date as if made on the Closing Date such time and (ivB) the representations and warranties of the Company set forth in Article 4 of this Agreement (ARTICLE IV, other than those described in the foregoing clauses clause (iA) through (iii)) above, shall have been be true and correct as of the date of the Effective Time as if made at and as of such time (without giving effect to any qualification as to "materiality" or "Material Adverse Effect" set forth therein), except in the case of this Agreement CLAUSE (B) where the failure to be so true and correct does not constitute a Material Adverse Effect on the Company, PROVIDED that representations made as of a specific date shall be required to be so true and correct (disregarding all qualifications or limitations as subject to “materiality,” “Company Material Adverse Effect” or words of similar importsuch qualifications) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier datedate only; and (iii) Parent and Merger Sub shall have received a certificate signed by a senior officer of the Company attesting to (i) and (ii) above; (b) Parent and Merger Sub have obtained the Financing (other than the equity financing described in the GEI IV Letter); provided, howeverPROVIDED, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(ivSECTION 9.2(B) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct waived if the failure to satisfy such condition arises out of such representations and warranties or results from a willful breach by Parent or Merger Sub of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and their respective obligations required to be performed or complied with by it under this Agreement at or prior to the Closing;SECTION 7.3; and (c) Parent shall have received the aggregate number of shares of Common Stock at the Closing a certificate signed on behalf Effective Time, the holders of which have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the Company by the Chief Executive Officer Delaware Corporate Law, shall not equal 15% or the Chief Financial Officer more of the Company certifying that Common Stock outstanding as of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since record date for the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse EffectStockholder Meeting.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at on or prior to Closing, the Closing Date of the following conditions:conditions (which may be waived in whole or in part by Parent): (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization4.04(b) (other than clause (a) thereofChange of Control Consents) and Section 4.23 4.10(b) (Brokers’ Fees) shall have been true and correct in all material respects as Absence of the date of this Agreement and Certain Changes), shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier daterespects, in which each case such representation at and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 at and as of the Closing Date and Closing, (ivii) the representations and warranties of the Company set forth contained in Article 4 of this Agreement Section 4.05(a) (other than those described in the foregoing clauses (i) through (iii)Capitalization) shall have been be true and correct in all but de minimis respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all but de minimis respects only at and as of such time), (iii) the representations and warranties of the Company contained (A) in the first sentence ofSection 4.01 (Corporate Existence and Power), (B) in Section 4.02 (Corporate Authorization), Section 4.17(e) (Employee Benefits), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor), Section 4.24 (Antitakeover Statutes), and Section 4.31(a) (Material Broker-Dealer) and (C) Section 4.32(a) (REIT Status for RCC) shall be true and correct in all material respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all material respects only 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 qualifications or limitations as without giving effect to any “materiality,” “Company Material Adverse EffectEffect or “all material respects” or words qualifications set forth therein), in each case at and as of similar import) on the date of this Agreement and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that other than any such representation representations and warranty expressly speaks warranties that by their terms address matters only as of an earlier dateanother specified time, in which case such representation and warranty shall be true and correct only at and as of such earlier datetime); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if iv), where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all of its covenants and obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent Pare▇▇ ▇▇▇ Merg▇▇ ▇▇▇ shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company certifying that the conditions set forth in Section 7.02(a9.02(a) and Section 7.02(b9.02(b) have been satisfied; (d) the Company shall have received, and Parent shall have been furnished with copies of, the Resignations; (e) No Material Advisory Contract shall have terminated (except for the automatic termination of the Material Advisory Contract with Diversified Income Fund that will occur under the Investment Company Act as a result of the Closing) or, if applicable, not renewed, and each such Material Advisory Contract shall be in full force and effect in accordance with its terms; and (df) since Diversified Income Fund shall have entered into an Acceptable Interim IAA and such Acceptable Interim IAA shall be in full force and effect; provided, that this condition will be deemed to be satisfied in the date event that Public Fund Shareholder Approval of this Agreement, there shall not have occurred a New IAA with Diversified Income Fund has been obtained and be continuing to exist any Company Material Adverse Effectsuch New IAA is in full force and effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at on or prior to Closing, the Closing Date of the following conditions:conditions (which may be waived in whole or in part by Parent): (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization4.04(b) (other than clause (a) thereofChange of Control Consents) and Section 4.23 4.10(b) (Brokers’ Fees) shall have been true and correct in all material respects as Absence of the date of this Agreement and Certain Changes), shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier daterespects, in which each case such representation at and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 at and as of the Closing Date and Closing, (ivii) the representations and warranties of the Company set forth contained in Article 4 of this Agreement Section 4.05(a) (other than those described in the foregoing clauses (i) through (iii)Capitalization) shall have been be true and correct in all but de minimis respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all but de minimis respects only at and as of such time), (iii) the representations and warranties of the Company contained (A) in the first sentence of Section 4.01 (Corporate Existence and Power), (B) in Section 4.02 (Corporate Authorization), Section 4.17(e) (Employee Benefits), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor), Section 4.24 (Antitakeover Statutes), and Section 4.31(a) (Material Broker-Dealer) and (C) Section 4.32(a) (REIT Status for RCC) shall be true and correct in all material respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all material respects only 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 qualifications or limitations as without giving effect to any “materiality,” “Company Material Adverse EffectEffect or “all material respects” or words qualifications set forth therein), in each case at and as of similar import) on the date of this Agreement and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that other than any such representation representations and warranty expressly speaks warranties that by their terms address matters only as of an earlier dateanother specified time, in which case such representation and warranty shall be true and correct only at and as of such earlier datetime); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if iv), where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all of its covenants and obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent and Merger Sub shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company certifying that the conditions set forth in Section 7.02(a9.02(a) and Section 7.02(b9.02(b) have been satisfied; (d) the Company shall have received, and Parent shall have been furnished with copies of, the Resignations; (e) No Material Advisory Contract shall have terminated (except for the automatic termination of the Material Advisory Contract with Diversified Income Fund that will occur under the Investment Company Act as a result of the Closing) or, if applicable, not renewed, and each such Material Advisory Contract shall be in full force and effect in accordance with its terms; and (df) since Diversified Income Fund shall have entered into an Acceptable Interim IAA and such Acceptable Interim IAA shall be in full force and effect; provided, that this condition will be deemed to be satisfied in the date event that Public Fund Shareholder Approval of this Agreement, there shall not have occurred a New IAA with Diversified Income Fund has been obtained and be continuing to exist any Company Material Adverse Effectsuch New IAA is in full force and effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, (where permissible) in writing of the following additional conditions: (a) (i) the The representations and warranties of the Company set forth contained in Section 4.01 this Agreement that (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalizationi) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects are not made as of the a specific date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date Closing, as if though made on and as of the Closing Date Closing, and (ivii) are made as of a specific date shall be true and correct as of such date, in each case except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that, notwithstanding the foregoing, the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) Sections 4.03, 4.04 and 4.22 shall have been be true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (in each case except to the extent that any such representation and warranty they expressly speaks as of relate to an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have performed or complied shall, in all material respects with respects, have performed all obligations and complied with, in all material respects, each of its agreements and covenants and obligations required to be performed or complied with by it under this Agreement at on or prior to the Closing;Effective Time; provided, however the Company shall have performed all obligations and complied with, in all respects, each of the Expense and Finance Covenants as of the Effective Time. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company and certifying that as to the satisfaction of the conditions set forth specified in Section 7.02(aSections 8.02(a) and Section 7.02(b) have been satisfied; and8.02(b). (d) since On or prior to the Closing Date, (i) the BCRA Advisory Agreement shall have been terminated in full, effective no later than the Closing Date, (ii) all of the Minority Interests shall have been obtained by the Company or one of its wholly-owned Subsidiaries such that each of the Partially Owned Joint Ventures becomes a direct or indirect wholly-owned Subsidiary of the Company, effective as of the Effective Time pursuant to transfer documents that are in form and substance reasonably satisfactory to the Parent, (iii) the Company shall have delivered the notices to terminate each of the Management Agreement Documents as provided by Section 7.07 on or prior to the Closing Date, (iv) the Company shall have consummated the acquisition or restructuring of BCMR Seattle, a Limited Partnership, a Massachusetts limited partnership, effective as of the Closing Date, and (v) the Company shall have redeemed the interests of BCMR Special Inc. in BC-GFS LLC, effective as of the Closing Date, and Parent shall receive evidence reasonably satisfactory to it that all such actions have been taken on or prior to the Closing Date. (e) Holders of not more than ten percent (10%) of the issued and outstanding Company Common Shares on an aggregate basis shall be entitled to the rights provided under the Dissenter’s Rights Provisions. (f) Parent shall have received an opinion of ▇▇▇▇▇▇▇ Procter LLP, dated as of the Closing Date in the form attached hereto as Exhibit C, to the effect that for all taxable periods commencing with January 1, 2005 through and including the Closing Date, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon customary representations made by the Company and shall be subject to customary assumptions, limitations and qualifications). (g) On the Closing Date, there shall not exist any event, change or occurrence arising after the date of this AgreementAgreement that, there shall not have occurred and be continuing to exist any individually or in the aggregate, has had a Company Material Adverse Effect. Parent shall have received a certificate signed on behalf of the Company by an officer of the Company, dated the Closing Date, to the foregoing effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is Mergers are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following further conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.1 (excluding Section 4.01 (Organization, Standing and Power3.1(d)), Section 4.02 3.2, 3.3(b) (Corporate Authorizationbut only clause (i) thereof), Section 4.05 (Capitalization) (other than clause (a) thereof) 3.4, 3.18 and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and 3.20 shall be true and correct accurate in all material respects (except for any de minimis inaccuracies) both when made and as of the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier date, in which case such representation date (other than those representations and warranty shall be true and correct warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such earlier datedate or with respect to such period), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization3.6(b) shall be true and correct accurate in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement both when made and as of the Closing Date as if made on the Closing Date at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) and (iviii) the all other representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and III shall be true and correct accurate in all respects (disregarding all qualifications or limitations without giving effect to any limitation as to “materiality,” or “Company Material Adverse Effect” or words set forth therein) both when made and as of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier date, in which case such representation date (other than those representations and warranty shall be true and correct warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such earlier date); provideddate or with respect to such period) except, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if iii), where the failure of such representations and warranties of the Company to be so true and correctaccurate would not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.; (d) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date, to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied; (e) the Administration Agreement and the Investment Advisory Agreement shall have been terminated; (f) Parent shall have received the written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, or another nationally recognized Tax counsel reasonably satisfactory to the Company (which may include outside counsel to the Company), dated as of the Closing Date, to the effect that the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 6.2(f), the Tax counsel rendering such opinion may require and rely upon (and may incorporate by reference) reasonable and customary representations and covenants, including those contained in certificates of officers of the Company and Parent; (g) the Company shall have provided evidence satisfactory to Parent that each of the CLO Conditions (as defined in Section 6.2(g) of the Company Disclosure Letter) has been satisfied; provided, that if the Closing has not occurred prior to November 23, 2020, each of the CLO Conditions will be deemed satisfied upon the occurrence of a Payoff Event. For purposes of this Agreement, “Payoff Event” means the redemption in whole of the Notes outstanding under the Indenture, in compliance with Sections 9.2 and 9.4 of the Indenture, on or after November 23, 2020;

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) (i) the representations and warranties each of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) SpinCo shall have been true and correct performed in all material respects as all of the date of this Agreement and shall its obligations hereunder required to be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except performed by it prior to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date)Effective Time, (ii) (A) the representations and warranties of the Company set forth contained in clause (a) of Section 4.01(a), Section 4.02, Section 4.05 and Section 4.21 (Capitalizationdisregarding all materiality, Tiger Material Adverse Effect and similar qualifications contained therein) shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (other than de minimis inaccuracies thereinsuch representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time) and (iiiB) the other representations and warranties in clause Article 4 (b) of Section 4.09 (Absence of Certain Changesdisregarding all materiality, Tiger Material Adverse Effect and similar qualifications contained therein) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date Effective Time as if made on the Closing Date at and as of such time (iv) the other than representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct that by their terms address matters only as of the date of this Agreement and another specified time, which shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier datetime); provided, howeverwith, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(ivB) shall only, only such exceptions as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Tiger Material Adverse Effect; and (iii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect; (b) Parent shall have received (i) the Parent Merger Tax Opinion from Parent Tax Counsel or an Alternative Tax Counsel, which opinion shall not have been withdrawn or modified in any material respect, and (ii) copies of the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingRMT Tax Opinions; (c) Parent The Company and SpinCo (or a Subsidiary thereof) shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth entered into each applicable Ancillary Agreement and each such agreement shall be in Section 7.02(a) full force and Section 7.02(b) have been satisfied; andeffect; (d) since the date of this Agreement, there shall not have occurred and any event, change, effect, development or occurrence that has had or would reasonably be continuing expected to exist any Company have, individually or in the aggregate, a Tiger Material Adverse Effect; and (e) (i) The Company shall have delivered to Parent the Initial Audited Financial Statements and (ii) the Initial Audited Financial Statements shall not differ from the applicable Tiger Unaudited Financial Statements in a manner that is material to the intrinsic value (determined in a manner consistent with appropriate valuation methodologies) of the Tiger Business in a manner that is adverse (excluding any differences resulting from (x) any changes in the amount of goodwill or intangible assets and (y) the matters described on Section 9.02(e) of the SpinCo Disclosure Schedule); provided that Parent shall be deemed to have irrevocably waived the condition set forth in this Section 9.02(e) if it does not exercise its right to terminate this Agreement pursuant to Section 10.01(c)(ii) within 20 Business Days following the Company’s delivery of the Initial Audited Financial Statements.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Merger is merger are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Section 4.01 4.1 (Organization, Standing and Power), Section 4.02 4.3 (Corporate Capitalization), Section 4.4(a) (Authorization), Section 4.05 (Capitalization4.10(b) (other than clause (a) thereofAbsence of Certain Changes) and Section 4.23 4.17 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier dateBrokers or Finders), (ii) the representations and warranties of the Company set forth contained in this Agreement (disregarding for this purpose of this clause (ai) any limitation or qualification of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes“materiality” or “Company Material Adverse Effect”) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date Closing, as if though made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement except to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of extent such representations and warranties of the Company failures to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have not resulted in a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization), Section 4.3 (Capitalization), Section 4.4(a) (Authorization), Section 4.10(b) (Absence of Certain Changes), and Section 4.17 (Brokers or Finders) 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 such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (b) the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all covenants and obligations respects, required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent no Company Material Adverse Effect shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since occurred following the date of this Agreement; (d) the Company shall have delivered to Parent a certificate, there dated as of the Closing Date, signed by an officer of the Company, certifying to the satisfaction of the conditions specified in Section 8.2(a), Section 8.2(b) and Section 8.2(c); and (e) Parent Required Approvals shall not have occurred and be continuing to exist any Company Material Adverse Effectbeen obtained.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) (i) the representations each representation and warranties warranty of the Company set forth in Section 4.01 Sections 4.1 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 4.2 (Capitalization) (other than clause (a) thereof; Subsidiaries) and Section 4.23 4.3 (Brokers’ FeesAuthorization; Validity of Agreement; Company Action) that is qualified as to materiality or Company Material Adverse Effect shall have been be true and correct in all material respects as of the date of this Agreement accurate, and each not so qualified shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier daterespects, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, in which case each such representation and warranty qualified as to materiality or Company Material Adverse Effect shall be true and correct, and each not so qualified shall be true and correct in all material respects, as of such date or with respect to such period); each of the Closing Date and (iv) the other representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been be true and correct accurate (disregarding any qualifications as to materiality or Company Material Adverse Effect contained therein) as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, in which case such representation representations and warranty shall warranties need only be true and correct only accurate as of such earlier datedate or with respect to such period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctaccurate would not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by the Chief Executive Officer or the Chief Financial Officer Company, dated as of the Company Closing Date, certifying that the conditions set forth in Section 7.02(a7.2(a), Section 7.2(b), Section 7.2(h) and Section 7.02(b7.2(i) have been satisfied; and, which certificate shall include a true and correct copy of the Reference Balance Sheet prepared by the Company and reasonably acceptable to Parent; (d) there shall not be pending or threatened any action, claim, suit, proceeding or investigation challenging or seeking to restrain or prohibit the consummation of the Merger or any other Transaction or seeking to impose any Burdensome Condition; (e) since the date of this Agreement, there shall not have occurred and been any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be continuing expected to exist any have a Company Material Adverse Effect; (f) all applicable Governmental Entities, including the NYSDFS, shall have granted all necessary approvals, consents and authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to or required by such Governmental Entities shall have been made, necessary to permit the Insurance Company to declare and pay the Extraordinary Dividend in an amount not less than the Minimum Extraordinary Dividend Amount, such approvals, consents, authorizations, filings and notices shall be in full force and effect, and such Extraordinary Dividend shall have been declared and paid in full in accordance with such approvals, consents, authorizations, filings and notices; (g) all applicable Governmental Entities, including the NYSDFS and the Delaware Department of Insurance, shall have granted all necessary approvals, consents and authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to or required by such Governmental Entities shall have been made, necessary to permit (i) the Insurance Company and Parent to enter into the Coinsurance Agreement in substantially the form attached hereto as Exhibit B and consummate the Reinsurance Transaction and (ii) the applicable parties to enter into each Affiliate Agreement in substantially the form attached hereto as Exhibit A; (h) the Net Assets of the Company, prior to receipt of the Extraordinary Dividend, as set forth on the Reference Balance Sheet (i) shall be not less than $40 million and (ii) shall be comprised of substantially the same type and mix of assets, including with respect to duration and credit-quality, as the Net Assets of the Company on the date hereof; and (i) the aggregate amount of impairments and realized losses recognized by the Company and its Subsidiaries in accordance with SAP on Investment Assets (other than investments in limited partnerships) (i) with respect to which Parent or its Representatives reasonably and in good faith recommended that the Company and its Subsidiaries dispose of pursuant to Section 6.2(c) and (ii) that result from a decline in value after the date of such recommendation (the “Recommendation Date”) (provided that the decline in value of an Investment Asset after the Recommendation Date shall be deemed to be zero if the Company sells such Investment Asset within five Business Days after the Recommendation Date or, despite using reasonable best efforts to sell such Investment Asset from and after the Recommendation Date, the Company is unable to sell such Investment Asset), shall not exceed $5 million.

Conditions to the Obligations of Parent and Merger Sub. The obligation In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Merger Closing Date of the following further conditions: (a) (i) each of the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power4.2(a), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization4.2(b) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties relate to PELSA or any of its Subsidiaries), Section 4.2(c)(i) and the Company set forth in clause (a) first sentence of Section 4.05 4.2(c)(ii) (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.4(c) shall be true (No Conflict; Required Filings and correct in all respects other than de minimis inaccuracies thereinConsents), (iii) the representations and warranties in clause (b) first sentence of Section 4.09 4.9 (Absence of Certain ChangesChanges or Events), Section 4.23 (Antitakeover Statutes) and Section 4.24 (Brokers) shall be true and correct in all respects as of the date of this Agreement and the Merger Closing Date (as though made on and as of the Merger Closing Date as if made on Date), except, with respect Section 4.2(a), to the Closing Date and extent that any inaccuracies would be de minimis, in the aggregate; (ivii) the representations and warranties of the Company set forth in Article 4 Section 4.2(b) (but only to the extent such representations and warranties relate to PELSA or any of its Subsidiaries), in the third sentence of Section 4.2(c)(ii) (Capitalization; Subsidiaries) and Section 4.21 (Concessions), shall be true and correct in all material respects (without giving effect to any qualifications as to materiality or Material Adverse Effect or other similar qualifications contained therein) as of the date of this Agreement (other than those described in and the foregoing clauses (i) through Merger Closing Date; and (iii)) each of the other representations and warranties of the Company set forth in ARTICLE IV that (x) are not made as of a specific date shall have been be true and correct as of the date of this Agreement and the Merger Closing Date (as though made on and as of the Merger Closing Date), and (y) are made as of a specific date shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if iii), where the failure of such representations and warranties of the Company to be so true and correct, without giving effect to any qualifications as to materiality or Material Adverse Effect or other similar qualifications contained therein, would not have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingMerger Closing Date; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company change, event, effect or circumstance that, individually or in the aggregate, has had a Material Adverse Effect; (d) the Company shall have delivered to Parent a certificate, dated the Merger Closing Date and signed by an executive officer of the Company certifying that the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) shall have been satisfied; (e) all consents of the Company’s secured creditors required under the Companies Law have been made, given or obtained on terms acceptable to the Parent, acting reasonably; and (f) The transactions contemplated by the Transaction Agreement have been consummated or will be consummated concurrently with the Merger Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parentwaiver, at or prior to as of the Closing, of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than ), clause (ab) thereof) of Section 4.09 (Absence of Certain Changes), and Section 4.23 (Brokers’ Fees) shall have been true ), the representations and correct in all material respects as warranties of the date Company set forth in Article 4 of this Agreement and shall be true and correct in all material respects (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) the representations and warranties of the Company set forth in clause Section 4.01 (a) of Corporate Existence and Power), Section 4.05 4.02 (CapitalizationCorporate Authorization), and Section 4.23 (Brokers’ Fees) shall be true and correct in all material respects other than de minimis inaccuracies (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date as if made on the Closing Date at and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only in all material respects as of such earlier date); provided, however, that notwithstanding anything in this Agreement to and (iii) the contrary, the condition representations and warranties set forth in this Section 4.05 (Capitalization) and clause (a)(ivb) of Section 4.09 (Absence of Certain Changes) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the failure Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such representations and warranties of the Company to be so true and correctearlier date), individually or except, in the aggregatecase of Section 4.05 only, have not resulted in for such inaccuracies as are de minimis taken as a Company Material Adverse Effect;whole. (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, of the following further conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the extent permitted Company in compliance with Section 10.1 hereof): (a) the Company shall have performed all of its material obligations hereunder required to be performed by Applicable Law, waiver by Parent, it at or prior to Closing, the Effective Time; (b) each of the following conditions: (a) (i) Special Representations and the representations and warranties of the Company set forth in made pursuant to Section 4.01 3.21 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Feesbrokers) shall have been true and correct accurate in all material respects as of the date of this Agreement and shall be true and correct accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (except to the extent that for any such representation representations and warranty expressly speaks warranties made as of an earlier a specific date, which shall have been accurate in which case such representation and warranty shall be true and correct only all material respects as of such earlier date); provided, however, that, other than with respect to Section 3.4(b), for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be disregarded; (iic) each of the representations and warranties of the Company set forth in clause (a) of other than the Special Representations and the representations made pursuant to Section 4.05 3.21 (Capitalizationbrokers)) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that for any such representation representations and warranty expressly speaks warranties made as of an earlier a specific date, which shall have been accurate in which case such representation and warranty shall be true and correct only all respects as of such earlier date); provided, however, that notwithstanding anything in this Agreement to that: (i) for purposes of determining the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure accuracy of such representations and warranties as of the Company foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be disregarded and (ii) any inaccuracies in such representations and warranties will be disregarded if all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to be so true and correcthave or result in, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (bd) no Company Material Adverse Effect shall have occurred and be continuing since the Agreement Date, provided, however, that for purposes of determining if there has been a Company Material Effect, any information included in any update to Section 3.11 of the Company Disclosure Schedule following the Agreement Date shall be taken into account in all respects; (e) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing delivered a certificate signed executed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company certifying that the satisfaction of the conditions set forth in Section 7.02(aSections 7.2(a), (b), (c), (d), (p), (s) and Section 7.02(b(v); (f) the Company shall have delivered a certificate of the Secretary of the Company certifying the names and signatures of the officers of the Company authorized to sign this Agreement and the Related Agreements, to the extent it is a party, and the other documents to be delivered hereunder and thereunder; (g) the Company shall have delivered the Capitalization and Closing Payment Amount Certificate to Parent; (h) each of the agreements set forth on Schedule 7.2(h) hereto shall have been satisfiedterminated and of no further force and effect; (i) the Company shall have delivered payoff letters, invoices and such other documentation as Parent shall reasonably request in order to evidence the discharge the Indebtedness Amount and any Transaction Costs; (j) the Company shall have delivered (A) a copy of the certificate of incorporation of the Company, as amended through the Effective Time certified by the Secretary of State; (B) a certified copy of the bylaws of the Company; (C) certified minutes of the board of directors of the Company approving the Merger and the transaction related thereto; and (D) a certified copy of the Stockholder Approval; (k) the Company shall have delivered good standing certificates for the Company from the Secretary of State of the State of Delaware and from the Secretary of State in each other jurisdiction in which the properties owned or leased by the Company, or the operation of its business in such jurisdiction, requires the Company to qualify to do business as a foreign corporation, in each case dated as of a date not earlier than five (5) business days prior to the Closing Date; (l) the Company shall have delivered a properly executed statement from the Company that meets the requirements of Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)(1), dated as of the Closing Date and in form and substance reasonably satisfactory to Parent, along with written authorization for Parent to deliver such notice form to the IRS on behalf of the Company upon Closing; (m) the Company shall have obtained the Tail D&O Policy and shall have uploaded to the dataroom evidence to Parent that such insurance coverage is in full force and effect and evidence of the payment of the premiums therefore; (n) holders of no more than three percent (3.0%) of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have elected to, exercise dissenters’, appraisal or similar rights under Delaware Law or California Law with respect to such shares; (o) the Company shall have uploaded to the dataroom (i) audited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity and footnotes to the foregoing) of the Company and its Subsidiaries as of December 31, 2010, and for the twelve (12)-month period ended on such date, together with an unqualified audit report in respect of such financial statements issued by the relevant auditors, (ii) unaudited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity, as well as footnotes to the foregoing to the extent they would be required or customary for the presentation of such financial statements on a Quarterly Report on Form 10-Q), reviewed by the Company’s auditors in accordance with Statement on Auditing Standards No. 100, of the Company and its Subsidiaries as of June 30, 2011, and June 30, 2010, and for each of the six (6)-month periods ended on such dates, and, (iii) solely in the event that the Closing Date has not occurred on or before October 29, 2011, the unaudited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity, as well as footnotes to the foregoing to the extent they would be required or customary for the presentation of such financial statements on a Quarterly Report on Form 10-Q) of the Company and its Subsidiaries as of September 30, 2011 and September 30, 2010 and for the nine (9) month periods ended on such dates (collectively, the “Closing Financials”), in each case, prepared in accordance with GAAP; (p) the Closing Financials, if as of June 30, 2011, shall not deviate from the June 30, 2010 financial statements included in the Financial Statements provided to Parent and attached to the Company Disclosure Schedule, except to the extent for any such deviations that, taken as a whole, do not constitute, and would not reasonably be expected to have or result in, a Company Material Adverse Effect; (q) the Company shall have uploaded to the dataroom evidence reasonably satisfactory to Parent that either (i) any stockholder vote required pursuant to Section 5.3 (280G matters) was solicited in conformity with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any payments and/or benefits that were subject to the stockholder vote (the “280G Approval”), or (ii) the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the waivers of those payments and/or benefits which were executed by the affected individuals; (r) the Stockholder Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement; (s) each of the Non-Competition Agreements shall remain in full force and effect and no Company Stockholder party to a Non-Competition Agreement shall have notified the Company or Parent of such Company Stockholder’s intention to terminate such Non-Competition Agreement; (t) the Company shall have uploaded to the dataroom evidence in form and substance acceptable to Parent of the receipt of the third party consents set forth on Schedule 7.2(t) hereto; (u) in the event the Company completes the disposition of any of the patents set forth on Schedule 7.2(u) prior to the Closing, Parent shall have received counterparts of a license agreement in substantially the form of Exhibit D hereto, granting a license to the patents and patent applications set forth on Schedule 7.2(u) hereto to Parent and the Surviving Corporation; and (dv) since the date of this Agreement, there shall not have occurred and be continuing no Action pending against Parent, Merger Sub or the Company or any of their respective Affiliates by any Governmental Authority (i) seeking to exist enjoin or make illegal, delay or otherwise restrain or prohibit the consummation of the Merger; (ii) that would result in the Merger being rescinded following consummation; (iii) seeking material damages in connection with the Merger; (iv) seeking to compel the Company, Parent, Merger Sub or any Subsidiary of Parent to dispose of or hold separate any material assets as a result of the Merger; or (v) seeking to impose any criminal sanctions or liability on Parent, Merger Sub or the Company Material Adverse Effectin connection with the Merger.

Conditions to the Obligations of Parent and Merger Sub. The obligation respective obligations of Parent and Merger Sub to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction orfulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent to the extent permitted by Applicable applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the The representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) contained herein shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations when made and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement on and as of the Closing Date as if though made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation for representations and warranty expressly speaks warranties made as of an earlier a specified date, in which case such representation and warranty shall be true and correct speak only as of such earlier the specified date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correcttrue, individually or in the aggregate, has not had or is not reasonably expected to have not resulted in a Company Material Adverse Effect;Effect on the Company and its Subsidiaries taken as a whole. (b) the The Company shall have performed or complied in all material respects with all agreements and covenants and obligations contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing;. (c) The Company shall have delivered to Parent a certificate, dated the date of the Closing, signed by the President of the Company (but without personal liability thereto), certifying as to the fulfillment of the conditions specified in Sections 8.2(a) and 8.2(b). (d) Parent shall have received at an opinion from the Closing Company’s tax counsel reasonably acceptable to Parent dated the Effective Time, to the effect that (i) the Merger will qualify as a certificate signed reorganization within the meaning of Section 368(a) of the Code; and (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. (e) Parent shall have received an opinion from the Company’s legal counsel reasonably acceptable to Parent dated the Effective Time in a form customary with respect to the transactions contemplated hereby. (f) All authorizations, consents or approvals of a Governmental Entity (other than those specified in Section 8.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall have been made or obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on behalf the Company and its Subsidiaries taken as a whole (or an effect on Parent and its Subsidiaries that, were such effect applied to the Company and its Subsidiaries, would be reasonably expected to have a Material Adverse Effect on the Company), except for such authorizations, consents or approvals, the failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole (or an effect on Parent and its Subsidiaries that, were such effect applied to the Company and its Subsidiaries, would be reasonably expected to have a Material Adverse Effect on the Company). (g) [Intentionally omitted.] (h) Parent and each of ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ shall have entered into employment agreements in the form reasonably acceptable to Parent. (i) No more than two percent (2%) the stockholders of the Company by the Chief Executive Officer shall have elected any appraisal rights or the Chief Financial Officer associated payments under Section 16-10a-1302 through 1331 of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; andURBCA. (dj) since ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. shall have delivered a to Parent an opinion to the effect that, as of the date of this Agreementsuch opinion, there shall the Exchange Ratio is fair to the stockholders of Parent from a financial point of view, and such opinion has not have occurred and be continuing to exist any Company Material Adverse Effectbeen withdrawn or modified.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate effect the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, the Effective Time of the following conditions: (a) (i) the The representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall must be true and correct in all material respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), both when made and on and as of the Closing Date Effective Time with the same effect as if though such representations and warranties had been made on as of the Closing Date (Effective Time, except to the extent that any such representation representations and warranty warranties expressly speaks as of an refer to a specific earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall must be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all without giving effect to any materiality qualifications or limitations as therein or any references therein to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provideddate (in either case, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(ivi) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of except for such representations and warranties of the Company to be so true and correctfailures which, individually or in the aggregate, have do not resulted in have, and would not reasonably be expected to cause, a Company Material Adverse EffectEffect and (ii) taking into account any changes permitted by this Agreement); (b) the Company shall must have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingEffective Time; (c) Parent Each Company Option shall have been amended, and the Company shall have received at the written consents and agreements from the holders thereof, as contemplated by Section 3.2; (d) The conversion, or full and complete payment, of all amounts due and payable pursuant to the Company Notes shall have occurred as contemplated by Section 3.3; (e) Each Company Warrant shall be purchased by the Parent or otherwise terminated in accordance with its terms as contemplated by Section 3.4; (f) Parent must have received a certificate dated the Closing a certificate Date and signed on behalf by the President or any Vice President of Company in his capacity as such to the effect that each condition specified in Sections 8.2(a), (b), (d), (e), (c), (i) and (j) has been satisfied in all respects; (g) Company must have delivered to Parent copies of all resolutions of Company’s board of directors authorizing the transactions contemplated by this Agreement, certified by Company’s Secretary or Assistant Secretary as being true, complete, correct and in full force and effect; (h) The dissenting shares shall comprise not more than 10% of the issued and outstanding Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfiedCommon Stock; and (di) since Company shall have terminated each of the date consulting agreements between the Company (or its Affiliates) with B▇▇▇ ▇. ▇▇▇▇▇▇ and J▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and (j) The Company shall have caused, at no out-of-pocket cost or expense to the Company (other than the payment of this Agreementapplicable filing fees), there shall not have occurred all the Nonpermitted Liens to be released and be continuing terminated to exist any Company Material Adverse Effectthe reasonable satisfaction of Parent.

Conditions to the Obligations of Parent and Merger Sub. The obligation In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Merger Closing Date of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in Section 4.01 (Organization, Standing and Power4.2(a), Section 4.02 (Corporate Authorization), Section 4.05 b) and (c) (Capitalization) (other than clause (a) thereof; Subsidiaries) and Section 4.23 4.3 (Brokers’ FeesAuthority Relative to Agreement) shall have been be true and correct in all material respects at and as of the date of this Agreement and the Merger Closing Date (except to the extent that any inaccuracies would be de minimis), (ii) set forth in Section 4.2(d) (Indebtedness) and Section 4.27 (Brokers) shall be true and correct in all material respects at and as of the date of this Agreement, (iii) set forth in Section 4.10(a) (Absence of Company Material Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date Date, and (iv) set forth in Article IV hereof (other than Section 4.2(a), (b) , (c) and (d) , Section 4.3, Section 4.10(a) and Section 4.27), without giving effect to any qualifications as if made on to materiality or Company Material Adverse Effect or other similar qualifications contained therein, shall be true and correct at and as of the date of this Agreement and the Merger Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case as of such representation and warranty shall date), except in the case of clause (iv) for such failures to be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are would not so true and correct if the failure of such representations and warranties of the Company to be so true and correctconstitute, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingMerger Closing Date; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing any change, effect, development or circumstance that, individually or in the aggregate, constitutes or is reasonably likely to exist any constitute a Company Material Adverse Effect; and (d) the Company shall have delivered to Parent a certificate, dated the Merger Closing Date and signed by an executive officer of the Company, certifying to the effect that the conditions set forth in Sections 7.2(a), (b) and (c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable applicable Law, waiver by Parentwaiver, at on or prior to the Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in (i) Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization3.5(a)(ii) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and (iv) the representations and warranties as of the Company set forth in Article 4 of this Agreement Closing, (ii) Section 3.3 (other than those described in the foregoing clauses (i) through (iiiSection 3.3(e)) shall have been be true and correct as of the date of this Agreement and as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except for de minimis inaccuracies, (iii) Section 3.1, Section 3.2, Section 3.3(e), Section 3.16, Section 3.17, Section 3.18(b), Section 3.19, Section 3.20, Section 3.21(b) and Section 3.22 that are (A) qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all respects and (B) not qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all material respects, in each case ((A) and (B)) as of the date of this Agreement and as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be so true and correct as of such date), and (iv) the other provisions of Article 3 shall be true and correct (disregarding all qualifications or limitations without giving effect to any qualification as to “materiality,” “materiality or Company Material Adverse Effect” or words Effect contained therein) as of similar import) on the date of this Agreement and as of the Closing Date as if though made on as of the Closing Date (except to the extent that any such representation representations and warranty warranties that expressly speaks speak specifically as of an earlier date, in which case such representation and warranty the date of this Agreement or another date shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if except where any representations and warranties failures of the Company are not so true and correct if the failure of any such representations and warranties of the Company to be so true and correctcorrect has not had or would not reasonably be expected to have, individually or in the aggregateaggregate with all other Effects, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or and complied in all material respects with all obligations and covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingClosing under this Agreement; (c) since the date of this Agreement, there shall not have occurred and not be continuing any Effect that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect; and (d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a6.2(a), Section 6.2(b) and Section 7.02(b6.2(c) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or(or waiver, if permissible pursuant to applicable Legal Requirements) prior to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) (i) the representations and warranties of the Company set forth in this Agreement (except for the representations and warranties in Section 4.01 (Organization, Standing and Power)2.1, Section 4.02 (Corporate Authorization)2.3, Section 4.05 (Capitalization) (other than clause (a) thereof) 2.21, Section 2.23 and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date 2.24 of this Agreement and Agreement) shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) on and as of the Closing Date as if made on the Closing Date and as of such date (except to the extent that any such representation and or warranty is expressly speaks made as of an earlier datedate or time, in which case such representation and warranty shall be true and correct only as of such earlier datedate or time), except where the failure of any such representation or warranty to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) the representations and warranties of the Company set forth in clause (a) Section 2.1, Section 2.3, Section 2.21, Section 2.19(a), Section 2.23 and Section 2.24 of Section 4.05 (Capitalization) this Agreement shall be true and correct in all material respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement on and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and or warranty is expressly speaks made as of an earlier datedate or time, in which case such representation and warranty shall be true and correct only as of such earlier datedate or time); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have complied with and performed or complied in all material respects with all the covenants and obligations agreements it is required to be performed comply with or complied with by it under this Agreement perform at or prior to the Closing;Closing under this Agreement. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since Since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse EffectEffect that has not been ameliorated or cured such that a Material Adverse Effect no longer exists. (d) The Support Agreement shall be in full force and effect. (e) The Transition Services Agreement shall be in full force and effect. (f) Parent and Merger Sub shall have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b), Section 6.2(c), Section 6.2(d), and Section 6.2(e) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following further conditions: (a) (i) each of the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects accurate as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true representations and correct warranties that address matters only as of the a particular date or only with respect to a specific period of this Agreement time, which representations and shall warranties need only be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only accurate as of such earlier datedate or with respect to such period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctaccurate (without giving effect to any limitation relating to materiality or Company Material Adverse Effect set forth therein) would not, individually or in the aggregate, reasonably be expected to have not resulted in a Company Material Adverse Effect; (b) the Company shall have complied with and performed or complied in all material respects with all its covenants and obligations hereunder required to be performed or complied with or performed by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by the chief financial officer of the Company by the Chief Executive Officer or the Chief Financial Officer Company, dated as of the Company certifying that Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.02(a7.2(a) and Section 7.02(b7.2(b) have been satisfied; and; (d) since From the date of this Agreement, Agreement through the Effective Time there shall not have occurred and be continuing to exist any a Company Material Adverse Effect; provided, however, a Company Material Adverse Effect shall not be deemed to have occurred solely for purposes of this Section 7.2(d) if the fact, change, event, factor, condition, circumstance, development or effect giving rise to such Company Material Adverse Effect has been fully remedied, such that no remaining impact therefrom is present, all as determined by Parent in good faith. (e) The Rights Agreement shall have been terminated or, if not terminated, Parent shall have received a certificate signed by an officer of the Company that such Rights Agreement does not apply to the Merger; and (f) Not more than 15% of the Company’s shareholders shall have exercised dissenter’s rights.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction orsatisfaction, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in (A) the first sentence of Section 4.01 4.01, (OrganizationB) Section 4.02, Standing and Power(C) clauses (b), Section 4.02 (Corporate Authorization), d) and (e) of Section 4.05 and (CapitalizationD) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date), (ii) Section 4.05(a) and (c) shall be true and correct (except for de minimis inaccuracies) in all respects on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects only as of such earlier date), and (iii) the other representations and warranties of the Company set forth in Article 4 of this Agreement shall be true and correct on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) except where the failure of such representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall to be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correctwould not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(b7.02(d) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following additional conditions: (a) 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; (ib) the representations and warranties of the Company set forth contained in Section 4.01 (Organization‎Section 4.01, Standing and Power‎‎Section 4.02‎, ‎Section 4.05(b), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof‎Section 4.05(c) and Section 4.23 ‎Section 4.22 (Brokers’ Feesdisregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall have been be true and correct in all material respects at and as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime), , (iic) the representations and warranties of the Company set forth contained in clause ‎‎Section 4.05(a) (a) of Section 4.05 (Capitalizationdisregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date Effective Time as if made on at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), except where failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Closing Date Company, Parent and their Affiliates, individually or in the aggregate, that is more than $2,500,000; (ivd) Other than representations and warranties of the Company listed in ‎Section 9.02(b) and ‎Section 9.02(c), the representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall have been be true in all respects at and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything in this Agreement with only such exceptions as have not had and would not reasonably be expected to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (be) Since the date hereof, there shall not have occurred any event, occurrence, fact, condition, change, development or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing;Material Adverse Effect; and (cf) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(a) the preceding clauses ‎(a), ‎(b), ‎(e), (d), and Section 7.02(b(e) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is will be subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, the Closing Date of each of the following conditions, any of which may be waived exclusively by Parent: (a) (i) the representations and warranties of the Company set forth in Section 4.01 5.2(b) (Company Subsidiaries) and Section 5.3(a) (Capitalization Structure) shall be true and correct in all respects, except for inaccuracies that are de minimis in amount, as of the Closing Date (except that those representations and warranties which address matters only as of a particular date need only be so true and correct as of such particular date), (ii) each of the representations and warranties of the Company contained in Section 5.1 (Organization, Standing and Power), Section 4.02 5.2(a) and (Corporate Authorizationc) (Company Subsidiaries), Section 4.05 5.3(b), (Capitalizationc) and (d) (other than clause Capitalization Structure), Section 5.4 (a) thereof) Authority; Execution and Delivery; Enforceability), Section 4.23 5.5 (Requisite Stockholder Approval), Section 5.22 (Anti-Takeover Provisions), the first sentence of Section 5.28 (Brokers’ FeesFees and Expenses), and Section 5.29 (Opinion of Company Financial Advisor) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct (without giving effect to any references to any “Company Material Adverse Effect” or other “materiality” qualifications) in all material respects as of the Closing Date as if though made on and as of the Closing Date (except to the extent that any such representation those representations and warranty expressly speaks warranties which address matters only as of an earlier date, in which case such representation and warranty shall a particular date need only be so true and correct only as of such earlier date), and (iiC) the any other representations and warranties of the Company set forth contained in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date Article V of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (Agreement, other than those described Sections specifically identified in the foregoing clauses (i) through and (iii)ii) shall have been true and correct as of the date of this Agreement and Section 8.2(a), shall be true and correct (disregarding all qualifications or limitations as without giving effect to “materiality,” any references to any “Company Material Adverse Effect” or words other “materiality” qualifications) as of similar import) on the Closing Date as if though made on and as of the Closing Date (except to the extent that any such representation those representations and warranty expressly speaks warranties which address matters only as of an earlier date, in which case such representation and warranty shall a particular date need only be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the except where failure of such representations and warranties of the Company to be so true and correctcorrect would not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have complied with or performed or complied in all material respects with all covenants each covenant, agreement and obligations obligation that the Company is required to be performed comply with or complied with by it under this Agreement to perform at or prior to the ClosingClosing Date; (c) Parent the Company shall have received at the Closing delivered to Parent a certificate signed on behalf by an executive officer of the Company by the Chief Executive Officer or the Chief Financial Officer and dated as of the Company certifying Closing Date to the effect that the conditions set forth specified in Section 7.02(a8.2(a) and Section 7.02(b8.2(b) have been satisfied; and (d) since the date of this Agreement, there shall has not have occurred and be continuing to exist any a Company Material Adverse EffectEffect which is continuing as of the Closing Date.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) 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; (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Parent Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect, in each case in this ‎Section 9.02(b), without the imposition of a Burdensome Condition; (c) the Parties shall have received from the Federal Reserve Board a determination in form and substance reasonably satisfactory to Parent or, as determined by Parent in its sole discretion, other acceptable confirmation, that the consummation of the Merger will not result in Parent either (i) being deemed to be “controlled” by TD Bank as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (ii) being deemed to be in “control” of any of the TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA (clauses (i) and (ii) together, the “Noncontrol Determinations”); (d) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees‎Section 4.05(a) shall have been be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date), ; (ii) the representations and warranties of the Company set forth contained in clause ‎Section 4.01 (aother than the third sentence thereof), ‎Section 4.02, ‎ ‎Section 4.04(i), ‎Section 4.05(c), ‎ ‎Section 4.06(b), ‎Section 4.28, ‎Section 4.29 and ‎Section 4.30 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Section 4.05 (Capitalizationthe Company contained in ‎Section 4.10(a)(ii) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date Closing; and (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall have been be true and correct at and as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (de) since the date of this Agreement, there shall not have occurred and any event, change, effect, development or occurrence that has had or would reasonably be continuing expected to exist any have, individually or in the aggregate, a Company Material Adverse Effect; and (f) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in ‎Section 9.02(a), ‎Section 9.02(d) and ‎Section 9.02(e).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction orfulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent to the extent permitted by Applicable applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the The representations and warranties of the Company (i) set forth in Section 4.01 (Organization, Standing Sections 3.3 and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) 3.22 shall have been be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date)date and time, (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes3.6(a) 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 such date and time, subject to the “Material Adverse Effect” qualifier therein, (iii) set forth in Section 3.2(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time (except for representations and warranties made as of a specified date, only as of the specified date) and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described Sections specifically identified in the foregoing clauses (i), (ii) through and (iii)) without giving any effect as to any “materiality” or “Material Adverse Effect” qualification therein, shall have been be true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if though made on and as of the Closing Date (except to the extent that any such representation for representations and warranty expressly speaks warranties made as of an earlier a specified date, only as of the specified date), except, in which the case such representation and warranty shall of this clause (iv), where the failure to be true and correct only as of such earlier date); providedhas not had, however, that notwithstanding anything in this Agreement and would not reasonably be expected to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have performed or complied in all material respects with all covenants and obligations agreements contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing;. (c) Parent The Company shall have received at delivered to Parent a certificate, dated the Closing a certificate signed on behalf date of the Company Closing, signed by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company Company, certifying that as to the fulfillment of the conditions set forth specified in Section 7.02(aSections 7.2(a) and Section 7.02(b) have been satisfied; and7.2(b). (d) since Since the date of this Agreement, there shall not have occurred and been any effect, change, event or occurrence that has had or would reasonably be continuing expected to exist any Company have, individually or in the aggregate, a Material Adverse Effect. (e) The holders of no more than 10% of the Shares shall have validly served a written objection under Section 238(2) of the Cayman Companies Law.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by ParentParent and/or Merger Sub, as applicable) at or prior to Closing, the Effective Time of the following further conditions; provided that notwithstanding the foregoing or anything in this Agreement to the contrary, after January 31, 2007, neither Section 7.02(a) nor 7.02(c) shall be a condition to Parent and Merger Sub’s obligations to consummate the Merger: (a) (i) the representations and warranties of the Company contained in this agreement shall be true and correct when made and at and as of the Closing as if made at and as of the Closing (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such date or with respect to such period), except where the failure of such representations or warranties to be true and correct (without giving effect to any materiality qualifiers set forth in such representations and warranties) does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that notwithstanding the foregoing, the representations and warranties set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and 4.03 shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) the second sentence of Section 4.05 (Capitalization) 4.08 shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date as if made on at and as of the Closing Date and (iv) the except for those representations and warranties that address matters only as of the Company set forth in Article 4 a particular date or only with respect to a specific period of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been time which need only be true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as with respect to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier dateperiod); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the ClosingEffective Time; (c) Parent since December 31, 2005, there shall not have been any change, event, circumstance or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) the Company shall have received at obtained the consents and Requisite Regulatory Approvals listed in Schedule 4.06, other than such consents and approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that the failure to obtain any consents or approvals due to the identity of Parent or its Affiliates shall not be taken into account in determining whether or not the condition in this Section 7.02(d) is satisfied; and (e) the Company shall have delivered to Parent a certificate (dated as of the Closing a certificate Date), signed on behalf of by an officer or officers with authority to bind the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that as to compliance with the conditions set forth in Section 7.02(aparagraphs (a) (if applicable), (b) and Section 7.02(b) have been satisfied; and (d) since the date of this AgreementSection 7.02. For the avoidance of doubt, there nothing in this Agreement shall not be construed to require or otherwise impose as a condition to Parent or Merger Sub’s obligation to consummate the Merger that Parent shall have occurred and be continuing received or otherwise has available financing in order to exist any Company Material Adverse Effectsatisfy its payment obligations hereunder, including with respect to payment of the Merger Consideration.

Conditions to the Obligations of Parent and Merger Sub. The obligation In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Merger Closing Date of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in Section 4.01 4.2(a) and the first three sentences of Section 4.2(b) (Organization, Standing and PowerCapitalization; Subsidiaries), Section 4.02 4.3 (Corporate AuthorizationAuthority Relative to Agreement) and the first sentence of Section 4.9(a) (Absence of Certain Changes or Events), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been be true and correct in all material respects at and as of the date of this Agreement and the Merger Closing Date (except, with respect to Section 4.2(a), to the extent that any inaccuracies would be de minimis, in the aggregate) and (ii) set forth in Article IV hereof (other than Section 4.2(a), the first three sentences of Section 4.2(b), Section 4.3, and the first sentence of Section 4.9(a)), without giving effect to any qualifications as to materiality or Material Adverse Effect or other similar qualifications contained therein, shall be true and correct in all material respects at and as of the Closing Date as if made on date of this Agreement and the Merger Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case as of such representation and warranty shall date), except in the case of this clause (ii) for such failures to be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthad, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants each agreement and obligations covenant required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingMerger Closing Date; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company change, event, effect or circumstance that, individually or in the aggregate, has had a Material Adverse Effect; and (d) the Company shall have delivered to Parent a certificate, dated the Merger Closing Date and signed by an executive officer of the Company, certifying to the effect that the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction orsatisfaction, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in the first sentence of Section 4.01 (Organization4.01, Standing and PowerSection 4.02(a), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and 4.24 shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes4.09(b)(ii) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects only as of such earlier date), (iii) the representations and warranties of the Company set forth in Section 4.05(a) and the first sentence of Section 4.05(d) shall be true and correct in all respects except for de minimis inaccuracies relative to the total fully-diluted equity capitalization of the Company as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects except for such de minimis inaccuracies only as of such earlier date) and (iv) the other representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been be true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) would not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingClosing (provided that, for purposes of this Section 7.02(b), the Company shall be deemed to have performed and complied in all material respects with its obligations under Section 6.17 unless there has been a Willful and Material Breach of such obligations by the Company and such Willful and Material Breach is the proximate cause of Parent’s failure to obtain both the Debt Financing and the Preferred Equity Financing); (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(b7.02(d) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is shall be subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, the Closing Date of the following conditions: (a) (i) the representations Each representation and warranties warranty of the Company set forth contained in Section 4.01 (Organization, Standing and Power3.2(a), the first sentence of Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof3.2(b) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes3.2(c) shall be true and correct in all respects as of the date of this the Agreement and as of the Closing Date with the same force and effect as if made on the Closing Date and (iv) the as of such date, except for representations and warranties of the Company set forth in Article 4 of this Agreement that relate to a specific date or time (other than those described in the foregoing clauses (i) through (iii)) shall have been which need only be true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (time), except to the extent that for any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company failures to be so true and correctcorrect that, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;are de minimis. (b) The representations and warranties of the Company contained in Section 3.11(b) shall be true and correct in all respects as of the date of the Agreement and as of the Closing Date with the same force and effect as if made on and as of such date. (c) Each representation and warranty of the Company contained in Article III other than those referenced in Section 6.2(a) and Section 6.2(b) (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications therein) shall be true and correct in all material respects as of the date of the Agreement and as of the Closing Date with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct as of such date or time). (d) The Company shall have (i) performed or complied with each agreement and covenant to be performed or complied with by it in Section 5.1(a)(ii), except to the extent such failure is de minimis and (ii) performed or complied in all material respects with all covenants and obligations required any agreement or covenant to be performed or complied with by it under this Agreement (other than the covenants and agreements in Section 5.1(a)(ii)) at or prior to the Closing;Closing Date. Table of Contents (ce) Parent Merger Sub shall have received at a certificate of the Company, executed by an executive officer of the Company, dated as of the Closing a certificate signed on behalf of Date, to the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in this Section 7.02(a) and Section 7.02(b) 6.2 have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) the Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth in Section 4.01 (OrganizationSections 4.01, Standing and Power4.02, 4.04(a), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) 4.06 (other than clause (a) thereof) the first four sentences of 4.06(b)), 4.23, 4.24, 4.25 and Section 4.23 (Brokers’ Fees) 4.26 of this Agreement shall have been be true and correct in all material respects as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period), ; (ii) the representations and warranties of the Company set forth in clause Sections 4.05 and 4.06(b) (aother than the last sentence thereof) of Section 4.05 (Capitalization) this Agreement shall be true and correct (except for de minimis inaccuracies) in all respects other than de minimis inaccuracies thereinas of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representations representation and warranties warranty of the Company set forth in clause (bSection 4.10(b) of Section 4.09 (Absence of Certain Changes) this Agreement 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 the Closing Date Agreement; and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described referred to in the foregoing preceding clauses (i) through (iiii)-(iii)) shall have been be true and correct as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii) and (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties; (c) there shall not have not resulted in occurred since the date hereof a Company Material Adverse Effect; (bd) the closing condition in Section 9.01(a) (if the Applicable Law or legal prohibition relates to any of the matters referenced in Section 9.01(c)) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); (e) the closing condition in Section 9.01(c) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); and (f) the Company shall have performed or complied in all material respects with all covenants and obligations required delivered to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by the Chief Executive Officer or the Chief Financial Officer dated as of the Company Closing Date certifying that the conditions set forth specified in Section 7.02(aparagraphs (a), (b) and (c) of this Section 7.02(b) 9.02 have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to (or the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following conditions: (a) the Company shall have performed in all material respects all of its obligations under this Agreement required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth in Section 4.01 (OrganizationSections 4.01, Standing and Power4.02, 4.04(a), Section 4.02 (Corporate Authorization)4.26, Section 4.05 (Capitalization) (other than clause (a) thereof) 4.27 and Section 4.23 (Brokers’ Fees) 4.28 of this Agreement shall have been be true and correct in all material respects as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period), (ii) the representations and warranties of the Company set forth in clause (athe first three sentences of Section 4.05, the first two sentences of Section 4.05(b) and the second sentence of Section 4.06(b) of Section 4.05 (Capitalization) this Agreement shall be true and correct in all respects correct, other than in de minimis inaccuracies thereinrespects, as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representations representation and warranties warranty of the Company set forth in clause (bSection 4.10(b) of Section 4.09 (Absence of Certain Changes) this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on the Closing Date Effective Time; and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described referred to in the foregoing preceding clauses (i) through (iiii)-(iii)) shall have been be true and correct as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had a Company Material Adverse Effect that is continuing, and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect, in the case of clauses (i), (ii), and (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties; (bc) since the date hereof, no event, occurrence, change, state of circumstances or facts has occurred or arisen, that, individually or in the aggregate with all other events, occurrences, changes, states of circumstances or facts occurring or arising since the date hereof, would reasonably be expected to have a Company Material Adverse Effect; and (d) the Company shall have performed or complied in all material respects with all covenants and obligations required delivered to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an executive officer of the Company dated as of the Closing Date certifying that the conditions set forth specified in Section 7.02(aparagraphs (a), (b) and Section 7.02(b(c) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth contained in Section 4.01 4.1 (Organization, Standing and Power), Section 4.02 4.3 (Corporate AuthorizationCapitalization), Section 4.05 4.4 (Capitalization) Authorization; Validity of Agreement; Opinion of Financial Advisor), Section 4.10 (other than clause (a) thereofAbsence of Certain Changes) and Section 4.23 4.17 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier dateBrokers or Finders), (ii) the representations and warranties of the Company set forth contained in this Agreement (disregarding for the purpose of this clause (ai) any limitation or qualification of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes“materiality” or “Company Material Adverse Effect”) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date Closing, as if though made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement except to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of extent such representations and warranties of the Company failures to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have not resulted in a Company Material Adverse Effect;; and (ii) the representations and warranties set forth in Section 4.1 (Organization), Section 4.3 (Capitalization), Section 4.4 (Authorization; Validity of Agreement; Opinion of Financial Advisor), Section 4.10(Absence of Certain Changes) and Section 4.17 (Brokers or Finders) shall be true and correct in all respects (except, for de minimis inaccuracies) as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date). (b) the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all covenants and obligations respects, required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent no Company Material Adverse Effect shall have received at occurred and be continuing following the Closing a certificate signed on behalf date of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfiedthis Agreement; and (d) since the date Company shall have delivered to Parent a certificate, dated as of this Agreementthe Closing Date, there shall not have occurred signed by an officer of the Company, certifying to the satisfaction of the conditions specified in Section 8.2(a), Section 8.2(b), and be continuing to exist any Company Material Adverse EffectSection 8.2(c).

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parentsatisfaction, at or prior to Closing, of the following conditions: (a) (i) Other than the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization), Section 4.09(b) (other than clause Absence of Company Material Adverse Effect), Section 4.24 (a) thereofBrokers’ Fees), Section 4.25 (Opinion of Financial Advisor) and Section 4.23 (Brokers’ Fees) shall have been true State Takeover Laws), the representations and correct in all material respects as warranties of the date Company set forth in Article 4 of this Agreement and shall be true and correct in all material respects (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) the representations and warranties of the Company set forth in clause Section 4.01 (aCorporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.24 (Brokers; Fees), Section 4.25 (Opinion of Financial Advisor) of and Section 4.05 4.23 (CapitalizationState Takeover Laws) shall be true and correct in all material respects other than de minimis inaccuracies (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date as if made on the Closing Date at and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only in all material respects as of such earlier date); provided, however, that notwithstanding anything in this Agreement to (iii) the contrary, the condition representations and warranties set forth in this clause Section 4.05 (a)(ivCapitalization) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correctcorrect would not, individually or in the aggregate, have not resulted increase the aggregate consideration payable pursuant to this Agreement by more than a de minimis amount and (iv) the representations and warranties set forth in a Section 4.09(b) (Absence of Company Material Adverse Effect) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(b7.02(d) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following additional conditions: (a) (i) the Company shall have performed and complied with in all material respects all of the covenants, obligations and agreements hereunder required to be performed or complied with by it prior to the Closing, (ii) the representations and warranties of the Company set forth contained in Section 4.01 ‎Section 4.01(a) (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 4.04(a) (Non-Contravention), Section 4.05(a) and (b) (Capitalization) ), ‎Section 4.23 (other than clause Finders’ Fees), Section 4.24 (a) thereofOpinion of Financial Advisor) and Section 4.23 4.25 (Brokers’ FeesAntitakeover Statutes) shall have been true and correct in all material respects as of the date of this Agreement and that (A) are not qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all material respects (but for de minimis inaccuracies) as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) and (B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the Closing Date as if made on at and as of the Closing Date (except to the extent in each case, other than representations and warranties that any such representation and warranty expressly speaks by their terms address matters only as of an earlier dateanother specified time, in which case such representation and warranty shall be so true and correct only as of such earlier date)time) without disregarding such Company Material Adverse Effect or other materiality qualifiers qualifications, (iiiii) the representations and warranties of the Company set forth contained in clause (aSection 4.10(b) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date Closing Date as if made at and as of the Closing Date, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects as of the Closing Date as if made on the Closing Date at and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent other than representations and warranties that any such representation and warranty expressly speaks by their terms address matters only as of an earlier dateanother specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything with only such exceptions in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; Effect and (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (cv) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(aforegoing clauses (i) and Section 7.02(b– (iv) have been satisfied; and. (db) since Since the date of this Agreement, there shall not have occurred and be continuing to exist any no Company Material Adverse EffectEffect shall have occurred.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by Parent, at or prior to Closing, Parent and Merger Sub) of the following further conditions: (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and (i) that are not qualified by Company Material Adverse Effect shall be true and correct in all material respects as of the Closing Date Effective Time as if though made on and as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date)) except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect and (ii) the representations and warranties of the that are qualified by Company set forth in clause (a) of Section 4.05 (Capitalization) Material Adverse Effect shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations Effective Time as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if though made on and as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to (A) the contrary, the condition representations and warranties set forth in this clause (a)(ivSection 4.2(a) and Section 4.8(a)(iii) shall be deemed to have been satisfied even if any true and correct in all respects (except for immaterial deviations) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (B) the representations and warranties of the Company are not so set forth in Section 4.5, shall be true and correct if the failure of such representations and warranties in all material respects, in each case, as of the Company to be so true date hereof and correct, individually or in as of the aggregate, have not resulted in a Company Material Adverse EffectClosing Date as though made on and as of the Closing Date; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf by the chief financial officer of the Company by the Chief Executive Officer or the Chief Financial Officer Company, dated as of the Company certifying that Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.02(a7.2(a) and Section 7.02(b7.2(b) have been satisfied; and; (d) the Debt Financing shall be available for borrowing on the terms and conditions set forth in the Debt Commitment Letter or on such other terms and conditions as are reasonably satisfactory to Parent and Merger Sub; (e) the aggregate number of shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by holders who have exercised dissenters’ rights or provided notice of intent to exercise dissenters’ rights in accordance with the provisions of Section 1300 et.seq. of the CCC shall constitute less than 10% of the shares of Common Stock outstanding as of the date of this Agreement as set forth in Section 4.2(a); (f) since the date of this Agreement, there shall has not have occurred and be continuing to exist been any Company Material Adverse EffectEffect on the Company; (g) the Company shall have disposed of the securities set forth on Exhibit D to this Agreement; (h) the securities set forth on Exhibit E to this Agreement shall not be disposed prior to the Effective Time and shall remain as assets of the Company after the Merger; and (i) the Company shall have an amount of cash on hand of $25,000,000, or such other amount as Parent and the Company shall mutually agree upon.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, written waiver by Parent, at or prior to Closing, ) of the following additional conditions: (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 ‎‎Section 4.01(a) (Organization, Standing Corporate Existence and Power), Section ‎Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization‎Section 4.04(a) (other than clause Non-Contravention), ‎Section 4.22 (a) thereof) and Section 4.23 (BrokersFinders’ Fees) shall have been true and correct in all material respects as ‎Section 4.23 (Opinion of the date of this Agreement and Financial Advisor) shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that other than any such representation representations and warranty expressly speaks as of an earlier datewarranties qualified by materiality or Company Material Adverse Effect qualifications, in which case such representation and warranty shall be true and correct in all respects), in each case, as of the date of this Agreement and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct as of such earlier datespecified time), (ii) the representations and warranties of the Company set forth in clause (a‎Section 4.05(a) of Section 4.05 and ‎Section 4.05(b) (Capitalization) shall be true and correct in all respects other than except for any de minimis inaccuracies thereinas of the date of this Agreement and as of the Closing Date (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct in all respects except for any de minimis inaccuracies as of such specified time), (iii) the representations and warranties of the Company contained in clause (b‎Section 4.10(b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date at and as of such time, (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall have been be true and correct in all respects as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch time (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything with only such exceptions in this Agreement to the contrary, the condition set forth in case of this clause (a)(iv‎(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;Effect and (v) Parent shall have received a certificate signed by an executive officer of the Company on behalf of the Company to the effect that the conditions set forth in foregoing clauses ‎(i) – ‎(iv) and ‎Section 9.02(b) and ‎9.02(c) have been satisfied. (b) the The Company shall have performed or and complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing;Effective Time. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since Since the date of this Agreement, no Company Material Adverse Effect shall have occurred and be continuing, and there shall not have occurred and been any Effect that would, individually or in the aggregate, reasonably be continuing expected to exist any have a Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, (or waiver by ParentParent and/or Merger Sub, as applicable) at or prior to Closing, the Effective Time of the following further conditions; PROVIDED that notwithstanding the foregoing or anything in this Agreement to the contrary, after January 31, 2007, neither Section 7.02(a) nor 7.02(c) shall be a condition to Parent and Merger Sub's obligations to consummate the Merger: (a) (i) the representations and warranties of the Company contained in this agreement shall be true and correct when made and at and as of the Closing as if made at and as of the Closing (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such date or with respect to such period), except where the failure of such representations or warranties to be true and correct (without giving effect to any materiality qualifiers set forth in such representations and warranties) does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; PROVIDED, HOWEVER, that notwithstanding the foregoing, the representations and warranties set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and 4.03 shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) the second sentence of Section 4.05 (Capitalization) 4.08 shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement at and as of the Closing Date as if made on at and as of the Closing Date and (iv) the except for those representations and warranties that address matters only as of the Company set forth in Article 4 a particular date or only with respect to a specific period of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been time which need only be true and correct as of the such date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as with respect to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier dateperiod); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and its obligations hereunder required to be performed or complied with by it under this Agreement at or prior to the ClosingEffective Time; (c) Parent since December 31, 2005, there shall not have been any change, event, circumstance or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) the Company shall have received at obtained the consents and Requisite Regulatory Approvals listed in SCHEDULE 4.06, other than such consents and approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; PROVIDED that the failure to obtain any consents or approvals due to the identity of Parent or its Affiliates shall not be taken into account in determining whether or not the condition in this Section 7.02(d) is satisfied; and (e) the Company shall have delivered to Parent a certificate (dated as of the Closing a certificate Date), signed on behalf of by an officer or officers with authority to bind the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that as to compliance with the conditions set forth in Section 7.02(aparagraphs (a) (if applicable), (b) and Section 7.02(b) have been satisfied; and (d) since the date of this AgreementSection 7.02. For the avoidance of doubt, there nothing in this Agreement shall not be construed to require or otherwise impose as a condition to Parent or Merger Sub's obligation to consummate the Merger that Parent shall have occurred and be continuing received or otherwise has available financing in order to exist any Company Material Adverse Effectsatisfy its payment obligations hereunder, including with respect to payment of the Merger Consideration.

Conditions to the Obligations of Parent and Merger Sub. The obligation respective obligations of Parent and Merger Sub to consummate effect the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, the Effective Time of the following conditions: (a) 6.3.1 (i) each of the representations and warranties of the Company set forth in Sections ‎3.1.1, ‎3.2.1, and ‎‎3.3, the first sentence of Section 4.01 (Organization‎3.8.2, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) ‎3.20 above shall be true and correct in all respects at and as of the Closing Date, other than than, solely with respect to Section ‎3.2.1 for de minimis inaccuracies therein, as of the date hereof and as of the Closing Date; and (iiiii) the other representations and warranties of the Company contained in clause (b) Article 3 of Section 4.09 (Absence of Certain Changes) 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 as of the date of this Agreement at and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) representations or warranties that address matters only as of a certain date, which shall have been be true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in had and would not reasonably be expected to have a Company Material Adverse EffectEffect on the Company; 6.3.2 each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time (b) except for Section ‎5.6, which shall have been duly complied with in all respects); 6.3.3 the Company shall not have suffered a Material Adverse Effect after the date hereof; and 6.3.4 the Company shall have performed or complied in all material respects with all covenants and obligations required delivered to be performed or complied with Parent a certificate, duly executed by it under this Agreement at or prior to an executive officer of the Closing; (c) Parent shall have received at Company, dated as of the Closing a certificate signed on behalf Date, attesting the satisfaction of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) Sections ‎‎6.3.1, ‎6.3.2, and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect‎6.3.3 above.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is will be subject to the satisfaction or(or waiver, if permissible pursuant to applicable Legal Requirements, by Parent and Merger Sub) prior to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, Effective Time of each of the following conditions: (a) (i) the representations and warranties of the Company set forth in this Agreement (except for the representations and warranties in Section 4.01 (Organization2.1, Standing and PowerSections 2.3(a)-(c), Section 4.02 (Corporate Authorization2.5(b), Section 4.05 (Capitalization) (other than clause (a) thereof) 2.19, Section 2.21, the first sentence of Section 2.23, and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date 2.24 of this Agreement and Agreement) shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) on and as of the Closing Date as if made on the Closing Date and as of such time (except to the extent that any such representation and or warranty is expressly speaks made as of an earlier datedate or time, in which case as of such earlier date or time), except where the failure of any such representation and or warranty shall to be true and correct only as of such earlier date)would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in clause (aSections 2.3(a)-(c) and Section 2.5(b) of Section 4.05 (Capitalization) this Agreement shall be true and correct in all respects (other than than, with respect to Sections 2.3(a)-(c), de minimis inaccuracies therein, (iiiinaccuracies) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement on and as of the Closing Date as if made on and as of such time (except to the Closing Date extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (iviii) the representations and warranties of the Company set forth in Article 4 Section 2.1, Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding in all qualifications or limitations material respects on and as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date and as of such time (except to the extent that any such representation and or warranty is expressly speaks made as of an earlier datedate or time, in which case such representation and warranty shall be true and correct only as of such earlier datedate or time); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect;. (b) the The Company shall have performed not be in material breach of any of the covenants or complied in all material respects with all covenants and obligations agreements it is required to be performed comply with or complied with by it under this Agreement perform at or prior to the Closing;Closing under this Agreement. (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since Since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect. (d) ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following further conditions: (a) (i) the The representations and warranties of the Company set forth contained in Section 4.01 (Organization3.06 of this Agreement shall be true and correct in all material respects, Standing as of the Closing Date, as if made at and Power)as of such date, Section 4.02 (Corporate Authorization)except with respect to representations and warranties which speak as to an earlier date, Section 4.05 (Capitalization) (other than clause (a) thereof) which representations and Section 4.23 (Brokers’ Fees) warranties shall have been be true and correct in all material respects at and as of such date, (ii) the date Fundamental Warranties of the Company contained in this Agreement and (other than in Section 3.06), disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects as of the Closing Date Date, as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of such date, except with respect to representations and warranties which speak as to an earlier date, in which case such representation representations and warranty warranties shall be true and correct only in all material respects at and as of such earlier date), date and (iiiii) the representations and warranties of the Company set forth contained in clause (a) this Agreement other than the Fundamental Warranties of Section 4.05 (Capitalization) the Company, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date Closing Date, as if made at and as of this Agreement such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in each case under this clause (a)(iv) shall iii), for any inaccuracy or omission that would not reasonably be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correctexpected to, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the covenants of the Company to be performed prior to the Closing shall have been performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closingrespects; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there Material Adverse Effect shall not have occurred and be continuing continuing; (d) the LFA Approvals with respect to exist Franchises (other than the Specified Franchises) that represent, in aggregate, not less than 95% of Unique Subscribers in all of the Systems other than the former Cable One Anniston, AL system (i) shall have been received, (ii) shall be deemed to have been received in accordance with Section 617 of the Communications Act or (iii) shall not be required by Applicable Law (including those areas where the business of the Company and its Subsidiaries is lawfully operated without a Franchise) or under any applicable Franchise. Solely for purposes of determining the applicable percentage of Unique Subscribers under this Section 9.02(d), the parties shall use the number of Unique Subscribers in the applicable Systems as of the last day of the month in which this Agreement is executed and delivered, calculated on a basis consistent with Section 3.26; (e) Parent shall have received from each Equityholder a properly completed Internal Revenue Service Form W-9 certifying that such Equityholder is a “U.S. person” for purposes of satisfying the requirements of Section 1445 and 1446(f) of the Code; (f) Parent shall have received from each Equityholder that holds Company Material Adverse EffectClass A Units (other than the Charity) a duly completed and executed Written Consent (the “Required Member Consents”); and (g) Parent shall have received a certificate signed by an executive officer of the Company to the effect of the foregoing clauses (a), (b) and (c).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) 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; (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Parent Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect, in each case in this ‎Section 9.02(b), without the imposition of a Burdensome Condition; (c) the Parties shall have received from the Federal Reserve Board a determination in form and substance reasonably satisfactory to Parent or, as determined by Parent in its sole discretion, other acceptable confirmation, that the consummation of the Merger will not result in Parent either (i) being deemed to be “controlled” by TD Bank as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (ii) being deemed to be in “control” of any of the TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA (clauses (i) and (ii) together, the “Noncontrol Determinations”); (d) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees‎Section 4.05(a) shall have been be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date), ; (ii) the representations and warranties of the Company set forth contained in clause ‎Section 4.01 (aother than the third sentence thereof), ‎Section 4.02, ‎Section 4.04(i), ‎Section 4.05(c), ‎Section 4.06(b), ‎Section 4.28, ‎Section 4.29 and ‎Section 4.30 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Section 4.05 (Capitalizationthe Company contained in ‎Section 4.10(a)(ii) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date Closing; and (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall have been be true and correct at and as of the date of this Agreement and shall be true at and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had and would not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (de) since the date of this Agreement, there shall not have occurred and any event, change, effect, development or occurrence that has had or would reasonably be continuing expected to exist any have, individually or in the aggregate, a Company Material Adverse Effect; and (f) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in ‎Section 9.02(a), ‎Section 9.02(d) and ‎Section 9.02(e).

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of each of Parent and Merger Sub to consummate effect the Merger is are subject to the satisfaction (or, to the extent if permitted by Applicable Lawapplicable Legal Requirements, waiver by Parent, at or prior to Closing, mutual consent of Parent and Merger Sub) as of the Closing of each of the following conditions: (a) (i) the representations and warranties of the Company set forth in Sections 3.3(a) – 3.3(d) (Capitalization) of this Agreement shall be accurate except for failures of such representations and warranties to be true and correct that, in the aggregate, would not result in more than a de minimis increase in the aggregate consideration payable by Parent and Merger Sub pursuant to Section 4.01 1 of this Agreement, as of the date of this Agreement and at and as of the Effective Time as if made on and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (b) the representations and warranties of the Company set forth in Sections 3.1 (Due Organization; Subsidiaries, Standing and PowerEtc.), Section 4.02 3.2 (Corporate AuthorizationCertificate of Incorporation and Bylaws), Section 4.05 3.3 (Capitalization) (other than clause 3.3(a) – 3.3(d)), 3.21 (a) thereofAuthority; Binding Nature of Agreement), 3.23 (Takeover Laws), 3.24 (Opinion of Financial Advisors) and Section 4.23 3.25 (Brokers’ FeesBrokers and Other Advisors) of this Agreement shall have been true be accurate (disregarding for this purpose all “Material Adverse Effect” and correct “materiality” qualifications contained in such representations and warranties) in all material respects as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date Effective Time as if made on and as of the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period), ; (iic) the representations and warranties of the Company set forth in clause this Agreement (aother than those referred to in Section 7.2(a) of Section 4.05 and (Capitalizationb) above) shall be true accurate (disregarding for this purpose all “Material Adverse Effect” and correct “materiality” qualifications contained in all respects other than de minimis inaccuracies therein, (iii) the such representations and warranties in clause (bwarranties) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date Effective Time as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date Effective Time (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct only as of such earlier datedate or period); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if except where the failure of such representations and warranties of the Company to be so true and correctcorrect has not had, and would not, individually or in the aggregate, have not resulted in reasonably be expected to have, a Company Material Adverse Effect; (bd) the Company shall have complied with or performed or complied in all material respects with all the covenants and obligations agreements it is required to be performed comply with or complied with by it under this Agreement perform at or prior to the ClosingEffective Time; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (de) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company event, occurrence, circumstance, change or effect which has had a Material Adverse Effect; (f) the Inventory (valued at lower of cost or market on a first in first out basis) as of two (2) Business Days prior to the Effective Time is equal or greater than the Inventory Threshold Requirement; and (g) ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall have received a certificate executed on behalf of the Company by an executive officer of the Company certifying (i) the conditions set forth in Sections 7.2(a) through (f) have been satisfied and (ii) the amount of the Inventory (valued at lower of cost or market on a first in first out basis) as of two (2) Business Days prior to the Effective Time.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, ) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations, covenants and agreements hereunder required to be complied with or performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees4.5(a) shall have been be true and correct in all material respects (other than de minimis inaccuracies), at and as of the date of this Agreement and shall be true at and correct in all material respects as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date), ; (ii) the representations and warranties of the Company set forth contained in clause Section 4.1 (aother than the third sentence thereof), Section 4.2, Section 4.4, Sections 4.5(b) and 4.5(c), Section 4.6(b), Section 4.24, Section 4.25, Section 4.26 and Section 4.27 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in Section 4.05 (Capitalization) 4.10 shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date Closing; and (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and Agreement, shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect”, “materially” or and words of similar importimportant set forth therein) on at and as of the date of this Agreement and at and as of the Closing Date as if made on at and as of the Closing Date (except to the extent that any or, if such representation representations and warranty expressly speaks warranties are given as of an earlier another specific date, in which case such representation at and warranty shall be true and correct only as of such earlier date); provided, howeverexcept, that notwithstanding anything in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if only, where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have has not resulted in had and would not reasonably be expected to have, a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and any Effect that has had or would reasonably be continuing expected to exist any have, individually or in the aggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(c); and (e) Parent shall have received copies of a Payoff Letter, in a form reasonably satisfactory to Parent, with respect to (i) the Company’s Amended and Restated First Lien Term Loan Credit Agreement, dated as of October 19, 2020 and as amended or otherwise modified from time to time, with Bank of America, N.A., as administrative agent and (ii) the Company’s Revolving Credit Agreement, dated as of October 20, 2016, as amended by Amendment No. 1 dated June 12, 2017, Amendment No. 2 dated January 31, 2020 and Amendment No. 3 dated October 19, 2020 and as further amended or otherwise modified from time to time, with Bank of America, N.A., as administrative agent.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, (where permissible) of the following additional conditions: (a) (i) the representations and warranties of the Company set forth contained in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date Effective Time as if though made on and as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if where the failure of such representations and warranties of the Company to be so true and correctcorrect (without giving effect to any qualification as to "materiality" or "Company Material Adverse Effect" set forth therein) would not have or could not reasonably be expected to have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect, and Parent shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of the Company to such effect; (b) the Company shall have performed or complied in all material respects with all agreements and covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the ClosingEffective Time, except where the failure to so comply would not have or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and Parent shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of the Company to that effect; (c) Parent shall have received at the opinion of Wachtell, Lipton, Rosen & Katz, counsel to Parent, dated as of the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions Date, based ▇▇▇▇ fac▇▇, representations and assumptions set forth in or referred to in such opinion, to the effect that for U.S. federal income tax purposes, the Merger will qualify as a reorganization within the meaning of Section 7.02(a368(a) of the Code. In rendering such opinion, Wachtell, Lipton, Rosen & Katz may require and Section 7.02(bshall be entitled to rely upon represent▇▇▇▇▇s, ▇▇▇▇ngs and opinions of Parent, the Company or others, including representations substantially in the form of EXHIBITS E AND F, respectively; (d) The holders of not more than 5% of the outstanding Company Common Stock shall have been satisfieddemanded appraisal of their Shares in accordance with the DGCL; and (de) since Parent and the Company shall have received the opinion of Kirkland & Ellis, counsel to the Company, dated as of the date hereof ▇▇▇ ▇▇ of ▇▇▇ ▇losing Date, reasonably satisfactory in form and substance to Parent and the Company, to the effect that, for United States federal income tax purposes: (i) the limitations on each transferee's ownership rights set forth in the 2000 Stock Purchase Agreements between the Company and the holders of Class A Common Stock (the "2000 STOCK PURCHASE AGREEMENTS") constitute "nonlapse restrictions" within the meaning of Treasury Regulation Section 1.83-3(h), (ii) each person who has entered into a 2000 Stock Purchase Agreement with the Company owns the Class A Common Stock covered by such person's 2000 Stock Purchase Agreement (and owned such stock as of the date of this Agreement), there shall and (iii) such stock was "transferred" to such person prior to the date of this Agreement and such stock is "substantially vested" and not have occurred subject to a "substantial risk of forfeiture" in the hands of such person (and be continuing became so prior to exist any Company Material Adverse Effectthe date of this Agreement), in each case, within the meaning of Code Section 83 and the Treasury Regulations thereunder.

Conditions to the Obligations of Parent and Merger Sub. The obligation Solely if the Offer Termination shall have occurred, then the respective obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, or (to the extent permitted by Applicable Law, ) waiver by Parent, Parent at or prior to Closing, the Effective Time of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in in, Section 4.01 3.4 (Organization, Standing and PowerAuthority Relative to the Agreement), Section 4.02 3.11(b) (Corporate AuthorizationAbsence of Certain Changes or Events), Section 4.05 3.21 (Capitalization) Opinion of Financial Advisor), Section 3.22 (other than clause (a) thereofTakeover Statutes) and Section 4.23 3.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (CapitalizationVote Required) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations at and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date Effective Time with the same effect as if though made on the Closing Date and (iv) the representations and warranties as of the Company Effective Time, (ii) set forth in Article 4 of this Agreement Section 3.3 (other than those described in the foregoing clauses (i) through (iii)Capitalization) shall have been be true and correct in all material respects at and as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date Effective Time with the same effect as if though made on as of the Closing Date Effective Time (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case as of such representation date) and warranty (iii) set forth in Article III (other than the sections of Article III referred to in clause (i) or (ii) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct only at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); provided, however, that notwithstanding anything except in this Agreement to the contrary, the condition set forth in this case of clause (a)(iviii) shall for such failures to be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correctas would not have, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; provided, solely for purposes of clause (ii) above, if one or more inaccuracies in Section 3.3 would be reasonably likely to cause the aggregate amount required to be paid by Parent or Merger Sub to consummate the Offer, the Merger, exercise the Top-Up Option, refinance the indebtedness of the Company, acquire, directly or indirectly, all of the outstanding equity interests in the Company’s subsidiaries and pay all fees and expenses in connection therewith to increase by $500,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (ii) of this Section 6.2(a); (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at on or prior to the Closing;Effective Time; and (c) Parent the Company shall have received at delivered to Parent a certificate, dated the Closing a certificate Effective Time and signed by its chief executive officer or another senior officer on behalf of the Company by Company, certifying to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(a6.2(a) and Section 7.02(b6.2(b) have been satisfied; and (d) since the date of this Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parentsatisfaction, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) except where the failure of such representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall to be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) 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 the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correctwould not, individually or in the aggregate, have not resulted in a Company Material Adverse Effect, provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.23 (Brokers’ Fees), and Section 4.24 (Opinion of Financial Advisor) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of an earlier date, which shall be true and correct in all material respects as of such earlier date) and (ii) the representations and warranties set forth in Section 4.05 (Capitalization) shall be true and correct in all respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of an earlier date, which shall be true and correct as of such earlier date), except for any inaccuracies that would not, individually or in the aggregate, increase the Aggregate Merger Consideration payable in the Merger by more than $100,000 (disregarding any failures to be true and correct resulting or arising from any actions not prohibited by Section 6.01 or otherwise consented to by Parent or Merger Sub); (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the ClosingClosing Date; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have and been satisfied; and; (d) since the date of this the Agreement, there shall not have occurred and be continuing to exist any Company Material Adverse Effect; and (e) the number of shares of Company Common Stock that are Dissenting Shares shall be less than ten percent (10%) of the number of shares of Company Common Stock outstanding immediately prior to the Effective Time.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following additional conditions: (a) (i) the Company shall have performed and complied with in all material respects all of the covenants, obligations and agreements hereunder required to be performed or complied with by it prior to the Closing, (ii) the representations and warranties of the Company set forth contained in Section 4.01 4.01(a) (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 4.04(a) (Non-Contravention), Section 4.05(a) and (b) (Capitalization) (other than clause (a) thereof) and ), Section 4.23 (BrokersFinders’ Fees), Section 4.24 (Opinion of Financial Advisor), Section 4.25 (Antitakeover Statutes; Rights Agreement), and Section 4.26 (Masonite Agreement) shall have been true and correct in all material respects as of the date of this Agreement and that (A) are not qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all material respects (but for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on at and as of the Closing Date (except to the extent in each case, other than representations and warranties that any such representation and warranty expressly speaks by their terms address matters only as of an earlier dateanother specified time, in which case shall be so true only as of such representation time) and warranty (B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such earlier date)time) without disregarding such Company Material Adverse Effect or other materiality qualifiers qualifications, (iiiii) the representations and warranties of the Company set forth contained in clause (aSection 4.10(b) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date as if made on at and as of the Closing Date and Date, (iv) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (idisregarding all materiality and Company Material Adverse Effect qualifications contained therein) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding in all qualifications or limitations respects as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the date hereof and as of the Closing Date as if made on at and as of the Closing Date (except to the extent other than representations and warranties that any such representation and warranty expressly speaks by their terms address matters only as of an earlier dateanother specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything with only such exceptions in this Agreement to the contrary, the condition set forth in case of this clause (a)(iviv) shall as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; Effect and (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (cv) Parent shall have received at the Closing a certificate signed on behalf by an executive officer of the Company by to the Chief Executive Officer or the Chief Financial Officer of the Company certifying effect that the conditions set forth in Section 7.02(aforegoing clauses (i) – (iv) and Section 7.02(b9.02(b) have been satisfied; and. (db) since Since the date of this Agreement, there no Company Material Adverse Effect shall not have occurred and be continuing to exist any Company Material Adverse Effectcontinuing.

Conditions to the Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Merger is are subject to the satisfaction or, to the extent permitted by Applicable Law, or waiver by Parent, at or prior to Closing, of the following additional conditions: (a) 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; (b) (i) the representations and warranties of the Company set forth contained in the first sentence of Section 4.01 (Organization, Standing Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (other than clause Subsidiaries) (a) except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.23 4.24 (Brokers’ FeesAnti-Takeover Statutes) shall have been true and correct (except in all material respects as the case of the date first sentence of this Agreement Section 4.01, disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the Closing Date date of this Agreement and the Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch times (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime), (ii) the representations and warranties of the Company set forth contained in clause (a) Section 4.05(a), Section 4.05(c), the first sentence of Section 4.05 (Capitalization4.06(b) shall be true and correct in all respects other than de minimis inaccuracies therein, (iiiSection 4.10(b) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and as of the Closing Date Effective Time as if made on the Closing Date at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) and (iviii) the other representations and warranties of the Company set forth contained in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall have been be true in all respects at and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date Effective Time as if made on the Closing Date (except to the extent that any such representation at and warranty expressly speaks as of an earlier datesuch times (other than representations and warranties that by their terms address matters only as of another specified time, in which case such representation and warranty shall be so true and correct only as of such earlier datetime); provided, however, that notwithstanding anything with only such exceptions in this Agreement to the contrary, the condition set forth in case of this clause (a)(ivb) shall as have not had and would not reasonably be deemed expected to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correcthave, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with all covenants and obligations required to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since Since the date of this Agreementhereof, there shall not have occurred and be continuing any event, occurrence, fact, condition, change, development or effect that has had or would reasonably be expected to exist any have, individually or in the aggregate, a Company Material Adverse Effect; and (d) Parent shall have received a certificate signed by an executive officer of the Company to the effect that the conditions set forth in the preceding clauses (a), (b) and (c) have been satisfied.